IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-2077 MARK E. SHEPHERD, SR.,
Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE, et al.,
Defendants.
PLAINTIFF’S MEMORANDUM IN SUPPORT OF HIS MOTION FOR PARTIAL SUMMARY ADJUDICATION
Plaintiff Mark E. Shepherd, Sr., by and through his counsel, hereby submits this memorandum in support of his motion for partial summary adjudication. Plaintiff seeks an adjudication that certain policies of Defendant United States Olympic Committee (“USOC”) that discriminate against Paralympic athletes constitute illegal disability discrimination under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 - 12189, and section 504 of the Rehabilitation Act (“Section 504”). 29 U.S.C. § 794.
The USOC is a federally-chartered corporation, created by Congress to “exercise exclusive jurisdiction . . . over all . . . matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-American Games.” 36 U.S.C. §§ 220502 & 220503(3)(A). The USOC’s 2000 Annual Report describes the Paralympic Games as “the equivalent of the Olympic Games for the physically challenged.” Despite its explicit congressional mandate, however, the USOC provides services and benefits to Olympic athletes

for which Paralympic athletes are not eligible. This discrimination is prohibited by the ADA and Section 504, both of which bar discrimination on the basis of disability.
BACKGROUND Congress created the USOC through the Ted Stevens Olympic and Amateur Sports Act (“TSOASA”). 36 U.S.C. §§ 220501 - 220529. Through that statute, Congress gave the USOC jurisdiction over “all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-American Games, including representation of the United States in the games,” and obtaining “the most competent amateur representation possible in each event” in Olympic, Pan-American and Paralympic Games. Id. § 220503(3)(A) & (4). Congress also mandated that one of the USOC’s purposes was “to encourage and provide assistance to amateur athletic programs and competition for amateur athletes with disabilities.” Id. § 220503(13). The USOC’s Constitution states that it has the power to “represent the United States as its . . . National Paralympic Committee in relations with the International Paralympic Committee.” (USOC Constitution art III, § 1(B).)1 Through its Constitution, the USOC has undertaken to “organize, finance, and control the representation of the United States in the competitions and events of the Olympic Games, the Pan American Games and the Paralympic Games” and to “enter competitors who will represent the United States in the Olympic Games, the Pan American Games and the Paralympic Games.” (Id., art. III, §§ 1(C) & 5.)

1

Relevant excerpts from the USOC’s Constitution, as amended through April 21,

2002, are attached as Exhibit 1 to the Declaration of Amy F. Robertson (“Robertson Decl.”).

The entire document is available on the USOC’s website at

http://www.usolympicteam.com/about_us/documents/constituition051502.pdf.

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The USOC’s 2000 Annual Report explains that “[t]he Paralympics are the equivalent of the Olympic Games for the physically challenged.”2 The USOC administers the United States’s representation in the Paralympic Games through U.S. Paralympics, a division of the USOC.3 U.S. Paralympics states that it was “created to help athletes with physical disabilities reach their dream of Paralympic excellence,”4 and to “focus efforts on enhancing programs, funding and opportunities for persons with physical disabilities to participate in Paralympic sport.”5 “Participants in the Paralympic Games must meet eligibility standards established through the International Paralympic Committee. Disability groups represented include amputees, blind or visually impaired athletes, athletes with cerebral palsy, athletes with spinal cord injuries and athletes who are affected by a range of other disabilities that do not fall into the aforementioned categories, such as multiple sclerosis or dwarfism.”6
The USOC provides various benefits and services to Olympic athletes that it does not provide to Paralympic athletes.7 For example, the USOC provides grants to Olympic athletes -including Basic Grants, Special Assistance Grants, and Tuition Assistance Grants -- that it does

2

Id. at 18 (DP767). (Robertson Decl., Ex. 2.) This Exhibit consists of relevant

excerpts from the annual report. The entire document is available on the USOC’s website at

http://www.usolympicteam.com/about_us/documents/taxdisclosure.htm.

3

See http://www.usparalympics.com. (Robertson Decl. Ex. 3.)

4

Id.

5

See http://www.usparalympics.com/usparalympics.htm. (Robertson Decl. Ex. 4.)

6

Id.

7

See Stipulations ¶ 7 (filed Sept. 18, 2002).

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not make available to Paralympic athletes.8 In addition, the USOC offers Elite Athlete Health Insurance to Olympic athletes but not to Paralympic athletes.9 The USOC provides incentives to Olympic athletes by giving them cash payments for winning medals. This program is called “Operation Gold.” Prior to 2002, the USOC did not provide any awards to Paralympic athletes who won medals. Starting in 2002, the USOC began providing cash payments to Paralympic medalists -- in amounts precisely one-tenth of the amounts provided to Olympic medalists for equivalent medals.10 The USOC determines usage of its training facilities by prioritizing athletes by class. Olympic athletes are allocated an A (or first) priority level whereas Paralympic athletes are allocated a C (or third) priority level.11
Plaintiff Mark E. Shepherd, Sr. is a paraplegic and uses a wheelchair for mobility.12 He is also an elite Paralympic athlete. He was a member of the United States Paralympic Wheelchair Basketball team in the 1996 Paralympic Games,13 which won a bronze medal, and was a member of Team USA, the team that represented the United States in the International Wheelchair

8

Id. ¶¶ 10, 12 & 13.

9

Id. ¶ 14.

10

Id. ¶ 8.

11

Id. ¶ 9.

12

Stipulations ¶ 1.

13

Id. ¶ 2.

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Basketball Federation World Championships in 1994 and 1998.14 He is currently a member of Team USA, and just returned from Japan where he and his teammates won the gold medal in the 2002 International Wheelchair Basketball Federation World Championships. He is training for the 2004 Paralympics.15
Based on his accomplishments and training, Mr. Shepherd is a Paralympic-caliber athlete and an athlete training for the next Paralympic Games in a Paralympic sport in non-Paralympic years. Yet Mr. Shepherd is not eligible for grants, insurance, medal incentives and training priorities that a similarly-situated Olympic athlete would be eligible for. That is, the USOC has stipulated that “Olympic-caliber athletes and/or athletes training for the next Olympic Games in Olympic sports in non-Olympic years” are eligible for the benefits of “Olympic programming” -including the benefits described above -- while “Paralympic-caliber athletes and/or athletes training for the next Paralympic Games in Paralympic sports in non-Paralympic years” are not.16
PROCEDURAL STATUS Mr. Shepherd brought this lawsuit to challenge discrimination by the USOC against him as an employee with a disability (the “Employment Claims”) and as an athlete with a disability (the “Athletic Claims”). With respect to the Athletic Claims, Mr. Shepherd challenges the USOC’s discrimination in a number of areas, including those described above and other, more

14 Declaration of Mark E. Shepherd, Sr. ¶¶ 2-3.

15

Id. ¶¶ 4-5.

16 Stipulations ¶¶ 3, 7-15.

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factually complex, programs. In order to establish the precise contours of the USOC’s funding disparities between disabled and non-disabled athletes, Mr. Shepherd propounded a number of discovery requests to which the USOC objected. Mr. Shepherd moved to compel production of the requested documents.17 Following protracted negotiations -- in which the USOC made Mr. Shepherd aware of the quantity of information at issue -- the parties concluded that it would be of significant assistance in managing the litigation of -- and specifically discovery concerning -- the Athletic Claims to stay discovery on those claims and resolve first the question whether the USOC commits illegal disability discrimination when it discriminates against Paralympic athletes.18
In order to accomplish this, the parties negotiated the Stipulations being filed with this Court today and agreed to file cross-motions on the legal question of disability discrimination.19 The Stipulations address, among other things, a series of discrete programs in which the disparity in treatment between Paralympic and Olympic athletes could be easily ascertained and memorialized. In addition, the USOC has previously stipulated that it receives federal financial assistance20 and it is Plaintiff’s understanding that -- for the purposes of these cross-motions only

17 See Pl.’s Mot. to Compel (filed May 29, 2002).

18
2002).

See generally Joint Mot. for Briefing Schedule and to Extend Disc. (filed Aug. 22,

19

Id. ¶ 3.

20 Stipulation Re: (1) Pl.’s Mot. to Modify Case Mgmt. Order; (2) Def.’s Withdrawal of Affirmative Defense (3) Pl.’s Mot. for Leave to File Am. Compl. at 2 (filed Oct. 5, 2001).

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-- the USOC will not contest that Plaintiff has a disability21 or that the USOC owns, operates, leases and/or leases to a place of public accommodation.
As such, Mr. Shepherd moves pursuant to Rule 56(d) of the Federal Rules of Civil Procedure for summary adjudication of the following question: does the USOC violate Title III of the ADA and/or Section 504 when it explicitly excludes Paralympic athletes from certain programs or provides such athletes with explicitly inferior benefits? Specifically, does it violate Title III of the ADA and/or Section 504 when the USOC:
1. Provides grants to Olympic athletes for which Paralympic athletes are not eligible; 2. Provides Elite Athlete Health Insurance to Olympic athletes for which Paralympic
athletes are not eligible; 3. Provides medal incentives to Olympic athletes that it (previously) did not provide
to Paralympic athletes or (more recently) provides to Paralympic athletes in amounts one-tenth of the amounts provided Olympic athletes; and 4. Assigns Olympic athletes first priority, and Paralympic athletes third priority, in obtaining access to USOC training facilities? The matters set forth in the Stipulations are not in controversy and, as Plaintiff demonstrates below, support summary adjudication in Plaintiff’s favor of the questions above. There are a number of material facts that would remain “actually and in good faith controverted,” see Rule 56(d), following a ruling favorable to Plaintiff on this motion. For example, the
21 The USOC has stipulated that Plaintiff is a paraplegic and uses a wheelchair for mobility. Stipulations ¶ 1.
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question whether the USOC owns, operates, leases or leases to a place of public accommodation as well as the question of disability discrimination in more factually complex programs will remain to be resolved in future motions or at trial. Based on the procedural posture and the potential for litigation efficiencies, Plaintiff respectfully requests that this Court address the discrete questions set forth above. For the reasons set forth below, Plaintiff requests that the Court hold that the explicit discrimination against Paralympic athletes described herein violates Title III of the ADA and Section 504.
ARGUMENT The USOC has admitted that the Paralympics are the equivalent of the Olympics for individuals with disabilities and that there are a number of benefits and services that the USOC makes available to Olympic athletes that it does not make available to Paralympic athletes. These admissions suffice to establish discrimination under the ADA and Section 504. The USOC’s Policies Constitute Illegal Discrimination on the Basis of Disability. The ADA was enacted in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1); see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (holding that the ADA provides a “broad mandate” to eliminate discrimination against people with disabilities). Title III of the ADA prohibits disability discrimination “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Under Section 504, a qualified individual with a
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disability may not -- solely by reason of his or her disability -- be “excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The USOC’s policies that
provide grants, incentives, insurance and training opportunities to Olympic athletes but deny
those benefits or provide explicitly inferior benefits to Paralympic athletes violate these
provisions and their implementing regulations.22
A. The Elements of a Prima Facie Case under Title III and Section 504.
Plaintiff states a prima facie case under Title III of the ADA if he can show (1) he has a
disability; (2) the USOC owns, operates, leases or leases to a place of public accommodation;
and (3) he was denied full and equal treatment because of his disability. See Parr v. L & L
22 See 28 C.F.R. pt. 36 (Department of Justice (“DOJ”) Title III regulations); 32 C.F.R. pt. 56 (Department of Defense (“DOD”) Section 504 Regulations); 28 C.F.R. pt. 41 (DOJ Section 504 Coordination Regulations); see also 45 C.F.R. pt. 84 (Department of Health and Human Services (“HHS”) (formerly Department of Health, Education and Welfare (“HEW”)) Section 504 Coordination Regulations); 28 C.F.R. pt. 35 (DOJ regulations implementing Title II of the ADA). These regulations and Title III contain many parallel provisions, which will be noted in footnotes below. The DOD regulations are relevant because the USOC has stated that the source of federal financial assistance on which its stipulation was based was the grant of land from the Department of Defense. See Def.’s Resp. in Opp’n to Pl.’s Mots. for Sanctions Pursuant to 28 U.S.C. § 1927 and Rule 11 at 13-16 (filed June 11, 2002). The DOJ’s Title III regulations are “entitled to deference.” Bragdon v. Abbott, 524 U.S. 624, 626 (1998). The HEW regulations “particularly merit deference” because the responsible congressional committees “and Congress itself endorsed the regulations in their final form.” Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984); see also Toyota Motor Mfg. v. Williams, 122 S. Ct. 681, 690 (2002) (holding that “[t]he HEW regulations are of particular significance because at the time they were issued, HEW was the agency responsible for coordinating the implementation and enforcement of § 504” and noting that the HEW regulations “appear without change in the current regulations issued by” HHS). Finally, the DOJ’s Title II regulations “have the force of law.” Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir.), cert. denied 516 U.S. 813 (1995).
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Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000); Access Now, Inc. v. S. Fla.
Stadium Corp., 161 F. Supp. 2d 1357, 1363 (S.D. Fla. 2001). Under Section 504, Plaintiff is
required to show that (1) he has a disability; (2) he is otherwise qualified to participate in the
program; (3) the program receives federal financial assistance; and (4) the program
discriminated against him. See Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th
Cir. 1999). As discussed above, the USOC has stipulated that it receives federal financial
assistance and will not contest for the purposes of this motion that Plaintiff is disabled and that
the USOC owns, operates, leases or leases to a place of public accommodation. The question at
issue in this motion -- whether the USOC’s provision of benefits to Olympic athletes that it does
not provide to Paralympic athletes constitutes discrimination under Title III and/or Section 504 --
is the third element of the Title III prima facie case and the fourth element under Section 504.23
Denying benefits to Paralympic athletes that the USOC provides to Olympic athletes
constitutes illegal discrimination under Title III and Section 504. Specifically, the USOC’s
23 The USOC also disputes whether Plaintiff is “otherwise qualified,” apparently on the grounds that only Olympic athletes qualify for the benefits in question. This is circular. If it is discriminatory to exclude Paralympians from these benefits, it cannot be made legal by defining the qualifications for the benefits in explicitly discriminatory terms. See, e.g. Clark v. Va. Bd. of Bar Examiners, 880 F. Supp. 430, 441 (E.D. Va. 1995) (addressing the question whether bar applicants should be required to respond to a question concerning mental health and noting that “[w]hile Defendant argues that [the plaintiff] is not an ‘otherwise qualified individual’ because she failed to answer [the mental health question], this argument begs the question of whether [the question] must be answered at all.”). The USOC has conceded that “Olympic-caliber athletes and/or athletes training for the next Olympic Games in Olympic sports in non-Olympic years” are eligible for benefits that Plaintiff -- as a Paralympic-caliber athlete and an athlete training for the next Paralympic Games in a Paralympic sport in non-Paralympic years -- is not. See Stipulations ¶¶ 3, 7-15. But for the distinction being challenged here, Plaintiff is otherwise qualified.
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policies facially discriminate against athletes with disabilities by denying them the opportunity to participate in or benefit from USOC services, facilities, privileges, advantages, and accommodations, in violation of 42 U.S.C. § 12182(b)(1)(A)(i) (the “Denial of Participation” provision),24 and afford athletes with disabilities services, facilities, privileges, advantages, and accommodations that are not equal to those afforded to non-disabled athletes, in violation of 42 U.S.C. § 12182(b)(1)(A)(ii) (the “Unequal Benefit” provision).25
In the alternative, the USOC’s policies have a disparate impact on athletes with disabilities in that they impose eligibility criteria that screen out or tend to screen out those athletes from fully and equally enjoying the USOC’s goods, services, facilities, privileges, advantages, or accommodations, although such criteria are not necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered, in violation of 42 U.S.C. § 12182(b)(2)(A)(i) (the “Eligibility Criteria” provision).26
B. The USOC’s Denial of Participation and Provision of Unequal Benefits Constitute Facial Discrimination Against Athletes with Disabilities.
The USOC denies athletes competing in the Paralympic Games -- described by the USOC as the equivalent of the Olympic Games for athletes with disabilities -- the ability to participate in or benefit from Basic Grants, Special Assistance Grants, Tuition Assistance Grants, Elite
24 See also 32 C.F.R. § 56.8(a)(2)(ii); 28 C.F.R. § 41.51(b)(1)(i); 45 C.F.R. § 84.4(b)(1)(i); 28 C.F.R. § 35.130(b)(1)(i).
25 See also 32 C.F.R. § 56.8(a)(2)(iii); 28 C.F.R. § 41.51(b)(1)(ii); 45 C.F.R. § 84.4(b)(1)(ii); 28 C.F.R. § 35.130(b)(1)(ii).
26 See also 28 C.F.R. §§ 35.130(b)(8). -11-

Athlete Health Insurance and, prior to 2002, Operation Gold incentives, in violation of the Denial of Participation provision. The USOC provides these athletes unequal benefits in the form of Operation Gold rewards that are currently one-tenth of those offered Olympic athletes and lower priorities for the use of training facilities, in violation of the Unequal Benefits provision. These policies facially discriminate against athletes with disabilities. Plaintiff “makes out a prima facie case of intentional discrimination . . . merely by showing that a protected group has been subjected to explicitly differential -- i.e. discriminatory -- treatment.” Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995). There is no question that the USOC policies that provide benefits to Olympic athletes but deny those benefits to Paralympic athletes subject athletes with disabilities to “explicitly differential -- i.e. discriminatory -- treatment.” Plaintiff has thus stated a prima facie case of intentional disability discrimination.
Unlike the employment sections of the ADA, neither the Denial of Participation nor the Unequal Benefit provision contains any defense.27 Denying benefits to Paralympians and providing them benefits that are explicitly unequal to those of Olympians present per se violations of Title III and Section 504. See Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 735 (9th Cir. 1999) (holding that a facially discriminatory zoning
27 The only defense that applies to either section is the general “direct threat” defense, which applies to all of Title III. 42 U.S.C. § 12182(b)(3). Pursuant to that provision, a covered entity is not required to “permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others.” Plaintiff has never heard it suggested, and it is almost impossible to imagine, that provision of benefits to Paralympic athletes could constitute a direct threat to the health or safety of others.
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ordinance constituted a per se violation of Title II of the ADA). As the legislative history makes clear, “it is a violation of [Title III] to exclude persons with disabilities. For example, it would be a violation for a grocery store to impose a rule that no blind persons would be allowed in the store, or for a drugstore to refuse to serve deaf people.” H. R. Rep. No. 101-485, pt. 2, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 388. Likewise, it is a violation of Title III -- and Section 504 -- for the USOC to impose a rule that no Paralympians may receive grants, insurance or medal incentives that Olympic athletes are eligible to receive and that their training opportunities are explicitly inferior to those of Olympians.
Even if one were to take the view that the USOC is discriminating against Paralympians but not technically against athletes with disabilities -- that is, that the occasional disabled athlete who is able to qualify for the Olympics would be eligible for the USOC’s benefits -- the exclusion of Paralympians would still constitute facial disability discrimination. By definition, the athletes who are excluded by the USOC’s policies are athletes with disabilities. Using such a “proxy” for a protected class constitutes intentional discrimination.
When a criterion used to discriminate is closely aligned with a protected classification, use of the criterion is illegal. For example, in McWright v. Alexander, the Seventh Circuit addressed the question whether a policy requiring advance notice of maternity leave discriminated against infertile women who chose to adopt, a process that generally does not permit of advance notice. 982 F.2d 222, 223-24 (7th Cir. 1992). The court first analyzed whether the challenge was one of disparate treatment -- that is, intentional, facially
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discriminatory treatment -- or disparate impact -- that is, a neutral rule that disproportionately
impacted infertile women. The court concluded it was the former:
an employer cannot be permitted to use a technically neutral classification as a proxy to evade the prohibition of intentional discrimination. An example is using gray hair as a proxy for age: there are young people with gray hair (a few), but the “fit” between age and gray hair is sufficiently close that they would form the same basis for invidious classification.
Id. at 228 (citation omitted). With respect to the rule in question, the court stated, that “even if
the [employer’s] apparent policy disadvantages all adoptive mothers (including reproductively
normal ones), the ‘fit’ may be sufficient” to constitute intentional discrimination. Id. (emphasis
in original).
Similarly, it is facial disability discrimination to apply different fire code provisions to
“facilities that house four or more unrelated persons ‘for the purpose of providing personal care
services.’” Alliance for the Mentally Ill v. City of Naperville, 923 F. Supp. 1057, 1070 (N.D. Ill.
1996).
Such a law does not use the word “handicap” or “disability,” yet the reach of the law clearly “coincides with the breadth of the definition of ‘handicap’ under the [Fair Housing Amendments Act].” For this reason, such a law discriminates on its face against the handicapped. That such a law “may incidentally catch within its net some unrelated groups of people without handicaps, such as juveniles or ex-criminal offenders” does not alter this conclusion.
Id. (quoting Horizon House Developmental Servs., Inc. v. Township of Upper Southampton, 804
F.Supp. 683, 694 (E.D. Pa. 1992), aff’d, 995 F.2d 217 (3rd Cir. 1993)). The court held that the
classification at issue was a “proxy” for intentional disability discrimination. Alliance for the
Mentally Ill, 923 F. Supp. at 1070. Likewise, the court in Horizon House held that an ordinance
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requiring 1000 feet between facilities in which “permanent care or professional supervision is present” was facially discriminatory, because “[i]n using the words ‘permanent care’ or ‘professional supervision,’ the individuals singled out for disparate treatment are those who are unable to live on their own, who, in the language of the Fair Housing Act, are ‘handicapped.’” Id., 804 F. Supp. at 694.
In the present case, “Paralympian” is a close proxy for “disabled athlete.” Indeed, the USOC itself commonly equates Paralympians with disabled athletes in its own publications.28 It is irrelevant that the occasional Olympic athlete with a disability -- for example, an Olympic swimmer with a hearing impairment -- may be entitled to the benefits at issue here. “That a law may not burden all members of the protected class does not remove its facially discriminatory character.” Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491, 1496 n.8 (W.D. Wash. 1997) (citing Asbury v. Brougham, 866 F.2d 1276, 1281-82 (10th Cir.1989) for the proposition that evidence of a high percentage of protected-class residents could not by itself dispose of an intentional discrimination claim). The “fit” is sufficiently close between Paralympic athletes and athletes with disabilities to make facial discrimination against the former -- to which the USOC readily admits -- a proxy for facial discrimination against the latter.
In any event, the only elite athletes excluded by the USOC’s discrimination against Paralympians are disabled athletes, which is sufficient to render the policy illegal. An argument that the exclusion is legal because the occasional disabled athlete qualifies for the Olympics is
28 See, e.g., Robertson Decl. Exs. 2-4. -15-

the equivalent of the defendants in Alliance for the Mentally Ill or Horizon House defending their facially discriminatory ordinances -- barring group homes for people with disabilities -- on the grounds that they did not prevent a quadriplegic lawyer from living independently in the neighborhood. The USOC’s policy excludes athletes with disabilities and is thus illegal on its face.
C. In the Alternative, the USOC’s Policies Include Eligibility Criteria That Screen Out or Tend to Screen Out Athletes with Disabilities but Which Are Not Necessary for the Provision of the Benefits in Question.
Title III also prohibits policies that have a disparate impact on individuals with disabilities. It is illegal discrimination to impose or apply
eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered. 42 U.S.C. § 12182(b)(2)(A)(i).29 There can be no question that a policy denying benefits to Paralympic athletes tends to screen out athletes with disabilities. The Eligibility Criteria provision “makes it discriminatory to impose policies or criteria that, while not creating a direct bar to individuals with disabilities, diminish such individuals’ chances of participation.” H. R. Rep. No. 101-485, pt. 2, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 388; see also Hahn ex rel. Barta v. Linn County, 130 F. Supp. 2d 1036, 1055 (N.D. Iowa 2001) (same); Guckenberger v. Boston Univ., 974 F.
29 See also 28 C.F.R. § 36.301(a); 28 C.F.R. § 35.130(b)(8). -16-

Supp. 106, 134 (D. Mass. 1997) (same). The eligibility criteria at issue here are those that bar (and have in the past barred) Paralympic athletes from receiving certain USOC benefits, such as grants, insurance and medal incentives. Plaintiff has argued above that these constitute a direct bar to athletes with disabilities, and thus facially discriminate against such athletes. Even if this Court should disagree, there can be no question that these criteria screen out or tend to screen out athletes with disabilities, that is, they “diminish such [athletes’] chances of participation.” Given that no Paralympic athletes are eligible for these benefits, the chances of most disabled athletes qualifying for these benefits are next to zero.
In order for the USOC’s discriminatory eligibility criteria to survive Plaintiff’s challenge, the USOC must demonstrate that they are “necessary for the provision” of the benefits in question. 42 U.S.C. § 12182(b)(2)(A)(i).30 The USOC has the burden of proof on the defense of necessity. See Colorado Cross Disability Coalition v. Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1003 (10th Cir. 2001) (noting that “[s]everal district courts have placed the burden of showing that the eligibility criteria are necessary on the proponent of such criteria” and citing Hahn, 130 F. Supp. 2d at 1055, Bowers v. Nat’l Collegiate Athletic Ass’n, 118 F. Supp. 2d 494, 518 (D.N.J. 2000), and Guckenberger, 974 F. Supp. at 134)).

30

Congress envisioned that the “necessity” defense would address those criteria

that are “necessary for the safe operation of [the] business” and provided the example of a height

limit for rides at an amusement park. H. R. Rep. No. 101-485, pt. 2, at 105 (1990), reprinted in

1990 U.S.C.C.A.N. 303, 388. Plaintiff has never heard the suggestion that -- and cannot imagine

the circumstances in which -- provision of benefits to Paralympic athletes would threaten the safe

operation of the USOC.

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In light of the USOC’s congressionally-mandated mission, denying benefits to Paralympic athletes is not, as a matter of law, necessary to the provision of the benefits and services in question. The USOC was created by Congress with, among others, the purposes of administering United States participation in the Paralympic Games, “obtain[ing] . . . the most competent amateur representation possible in each event” in the Paralympic Games, and “encourag[ing] and provid[ing] assistance to amateur athletic programs and competition for amateur athletes with disabilities.” 36 U.S.C. § 220503(3)(A), (4) & (13). It cannot possibility be necessary to the achievement of these purposes to exclude America’s most competent disabled athletes from the benefits at issue here. Thus, as a matter of law, not only are the USOC’s discriminatory criteria not necessary, it is necessary to do away with these criteria in order truly to achieve all of the USOC’s purposes.
CONCLUSION Based on the foregoing, Plaintiff respectfully requests that this Court grant summary adjudication in his favor and find that the USOC is in violation of Title III of the ADA and Section 504 by 1. Providing grants to Olympic athletes for which Paralympic athletes are not
eligible; 2. Providing Elite Athlete Health Insurance to Olympic athletes for which
Paralympic athletes are not eligible;
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3. Providing medal incentives to Olympic athletes that it (previously) did not provide to Paralympic athletes or (more recently) provides to Paralympic athletes in amounts one-tenth of the amounts provided Olympic athletes; and
4. Assigning Olympic athletes first priority, and Paralympic athletes third priority, in obtaining access to USOC training facilities. Respectfully submitted, FOX & ROBERTSON, P.C.

Dated: September 18, 2002

Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Darold Killmer Killmer & Lane, LLP 1543 Champa Street, Suite 400 The Odd Fellows Hall Denver, CO 80202 303.571.1000
Attorneys for Plaintiff

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 Case 1:99-cv-02077-JLK-MEH Document 205 Filed 01/10/07 USDC Colorado Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-2077-JLK MARK E. SHEPHERD, SR.,
Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE, et al.,
Defendants.
DIRECTION OF FINAL JUDGMENT PURSUANT TO F.R.C.P. RULE 54(b)
This matter comes before the Court on Plaintiff’s unopposed request that the Court enter final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Formalizing rulings and orders made on the record at the January 4, 2006 status conference, I GRANT the request based on the following findings:
1. Plaintiff Mark Shepherd is a Paralympic athlete. He brought claims against Defendant United States Olympic Committee (“USOC”) under title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., and section 504 of the Rehabilitation Act. 29 U.S.C. § 794 (the “Athlete Claims”). The Athlete Claims allege that the USOC’s disparate funding and support for Paralympic athletes in contrast to Olympic athletes constitutes discrimination against Mr. Shepherd in violation of the ADA and the Rehabilitation Act.
2. Mr. Shepherd also brought claims against the USOC for violation of Title I of the ADA, 42 U.S.C. §§ 12111 et seq, for wrongful discharge in violation of public policy, and for

Case 1:99-cv-02077-JLK-MEH Document 205 Filed 01/10/07 USDC Colorado Page 2 of 3
willful breach of employment contract or, in the alternative, promissory estoppel (the “Employment Claims”). The Employment Claims arise out of Mr. Shepherd’s employment relationship with the USOC. In them, he alleges, among other things, that the USOC discriminated against him in whole or in part on the basis of his disability by treating him differently from nondisabled employees and by terminating him, and that the USOC breached its contract and/or promises to him in connection with that employment, and discharged him in whole or in part because of his objections to and refusal to participate in acts in derogation of federal law and clearly expressed policy.
3. As such, this case involves multiple claims and multiple parties. 4. On November 16, 2006, this Court dismissed Mr. Shepherd’s Athlete Claims. (See Mem. Op. and Order Granting Defs.’Dispositive Mots. re Athlete Claims (“November 16 Order”).) 5. Mr. Shepherd’s Employment Claims are still pending. 6. The Tenth Circuit requires this Court to make two express determinations under Rule 54(b): that the November 16 Order is a final order; and that there is no just reason to delay review of the final order until it has conclusively ruled on all claims in the case. Oklahoma Turnpike Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001). 7. With respect to the Title III and Rehabilitation Act claims, the November 16 Order was “‘an ultimate disposition of [these] individual claim[s] entered in the course of a multiple claims action.’” See id. (quoting Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7 (1980)).
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Case 1:99-cv-02077-JLK-MEH Document 205 Filed 01/10/07 USDC Colorado Page 3 of 3

8. The Court therefore determines that the judgment was final as that term is used in Rule 54(b).
9. The question whether there is no just reason for delay is within this Court’s discretion; the Supreme Court has stated that it is reluctant to fix or sanction narrow guidelines for district courts to follow. Curtiss-Wright Corp., 446 U.S. at 8, 10-11.
10. Resolution of the Employment Claims will not raise, on appeal, any of the issues presented by the Athlete Claims. That is, the “‘nature of the claims already determined [are] such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.’” Stockman’s Water Co., LLC v. Vaca Partners, LP, 425 F.3d 1263, 1265 (10th Cir. 2005) (quoting Curtiss-Wright Corp., 446 U.S. at 8).
11. This Court thus determines that there is no just cause for delay of the appeal of the Athlete Claims.
12. Based on the above, this Court directs that judgment be entered on Counts II and III of the of the Third Amended Complaint.

DATED: January 10, 2007.

s/John L. Kane SENIOR U.S. DISTRICT JUDGE

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 Case 1:99-cv-02077-JLK-MEH Document 237 Filed 01/07/08 USDC Colorado Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-2077-JLK
MARK E. SHEPHERD, Sr.,
Plaintiff,
v.
UNITED STATES OLYMPIC COMMITTEE, a Corporation,
Defendant.

STIPULATION FOR DISMISSAL WITH PREJUDICE

Plaintiff Mark E. Shepherd, Sr., and Defendant United States Olympic Committee, by

and through their respective counsel, hereby notify the Court that this matter has been resolved

and submit this Stipulation for Dismissal with Prejudice, each party to bear his or its own

attorneys fees and costs. Dated this 7th day of January 2008.

KILLMER, LANE & NEWMAN, LLP,

SHERMAN & HOWARD, LLC,

s/ Mari Newman
Darold W. Killmer Mari Newman 1543 Champa Street, Suite 400 Denver, CO 80202 (303) 571-1000
FOX & ROBERTSON, P.C.,
s/ Amy Robertson
Amy Farr Robertson Timothy P. Fox 910 16th Street, Suite 610

s/ Raymond M. Deeney
______________________________
Raymond M. Deeny N. Dawn Webber Edward J. Butler 90 South Cascade, Suite 1500 Colorado Springs, CO 80903 (719) 475-2440
HOGAN & HARTSON, LLP,
s/ John Cook _________________________ John Cook Jeffrey F. George

Case 1:99-cv-02077-JLK-MEH Document 237 Filed 01/07/08 USDC Colorado Page 2 of 2

Denver, CO 80202 ATTORNEYS FOR PLAINTIFF

Anne Turner 2 N Cascade Ave. Ste 1300 Colorado Springs, CO 80903 (719) 448-5900

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE
I hereby certify that on the 7th day of January 2008, a true and correct copy of the above and foregoing STIPULATION FOR DISMISSAL WITH PREJUDICE was filed with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses:

John W. Cook: jwcook@hhlaw.com Jeffrey S. George: jsgeorge@hhlaw.com Anne Hall Turner: ahturner@hhlaw.com Raymond M. Deeny: rdeeny@sah.com Edward Butler: ebutler@sah.com N. Dawn Webber: dwebber@sah.com

s/ Kimberly Jones ___________________________________

2

 
 Case 1:99-cv-02077-JLK-MEH Document 238 Filed 01/10/08 USDC Colorado Page 1 of 1
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No, 99-cv-2077-JLK MARK E. SHEPHERD, Sr., Plaintiff.
v.
UNITED STATES OLYMPIC COMMITTEE, a Corporation,
Defendant.
ORDER
THE COURT, having reviewed the Stipulation for Dismissal with Prejudice, and being fully advised on the premises and for good cause shown:
HEREBY ORDERS that the complaint be dismissed with prejudice, each party to bear his or its attorneys fees and costs.
DATED thisLfl- day of -f-ta....."","'1.,---"2008.
BY THE COURT:

 
 Case 1:99-cv-02077-JLK-MEH Document 177 Filed 09/19/05 USDC Colorado Page 1 of 5
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 99-CV-2077-JLK
MARK E. SHEPHERD,
Plaintiff,
v.
UNITED STATES OLYMPIC COMMITTEE, a corporation, Defendant.
DEFENDANT'S SUBMISSION OF RECENTLY·DECIDED AUTHORITY IN SUPPORT OF ITS RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant, United States Olympic Committee ("USOC"), through its attorneys, Hogan & Hartson L.L.P. by John W. Cook and Virginia S. Morgan, hereby files this Recently-Decided Authority in Support of its Response in Opposition to Plaintiff's Motion for Partial Summary Judgment:
1. Plaintiff filed his Motion for Partial Summary Judgment on September 18, 2002. The USOC filed a Response in Opposition on October 9, 2002 and Plaintiff filed his Reply on October 16, 2002. Oral argument is currently set for September 21, 2005.
2. On August 31, 2005, the Third Circuit issued an opinion addressing issues of particular relevance to the Plaintiff's Motion presently before the Court. Accordingly, the USOC submits as supplemental authority, Community Services, Inc. v. Wind Gap Municipal Authority, _ , F.3d_, 2005 WL 2088424 (3d Cir. 2005) (attached).
\I\es • 63234/0507 • 76677 V1

Case 1:99-cv-02077-JLK-MEH Document 177 Filed 09/19/05 USDC Colorado Page 2 of 5

3. In his Motion, Plaintiff argues that the USOC is using a technically neutral classification as a proxy to evade the prohibition of intentional discrimination. In support of this argument, Plaintiff cites to a series of cases involving the Fair Housing Amendments Act ("FHAA"): McWright v. Alexander, 982 F.2d 222, 223 (7th Cir. 1992); Alliance for the Mentally III V. City of Naperville, 923 F.Supp. 1057, 1070 (N.D. III. 1996); Horizon House Development Servs. V. Township of Upper Southhampton, 804 F.Supp. 683, 694 (E.D. Pa. 1992); and Children's Alliance V. City of Bellevue, 950 F.Supp. 1491, 1496 (W.O. Wash. 1997).
4. Plaintiff relies on these cases for the proposition that when a criterion used to discriminate is closely aligned with a protected classification, use of that criterion is illegal. For example, in Alliance the court found that a fire code that only applied to "facilities that house four or more persons for the purpose of providing personal care services" was a proxy for handicap individuals. Id. at 1070. Likewise in Horizon House, the court found that an ordinance requiring 1000 feet between facilities in which "permanent care or professional supervision is present" to be a proxy for handicap individuals. Id. at 694.
5. It is Plaintiff's position that the USOG's policy of providing Olympic programming and funding to only Olympic caliber athletes is a "proxy" for disabled athletes.
6. The recently-decided case, Community Services, examines the cases cited by Plaintiff and finds that four elements must be present before a neutral classification will be deemed a proxy for a protected class. First, the alleged discriminatory classification must be one actually defined by the challenged regulation in terms that largely coincide or "fit" with the FHAA definition of "handicap." Second, the classification must be used specifically to "single out" facilities for handicapped individuals for different treatment "because of' their disability. Third, there must be direct or circumstantial evidence of discriminatory animus-longstanding community opposition to neighborhood homes for the

Illes· 63234/0507 • 76677 V1

2

Case 1:99-cv-02077-JLK-MEH Document 177 Filed 09/19/05 USDC Colorado Page 3 of 5

mentally disabled, for example-indicating an intent to discriminate "because of' the

disabled status of the facilities' residents. And fourth, the purported reason for treating the

facility differently must be based on a justification for treating disabled persons differently

that is of questionable legitimacy. Community Services at 8.

7. In the present case, Plaintiff argues that the USOC uses the term

"Paralympian" as a proxy to discriminate against a protected class of disabled athletes.

That, however, is demonstrably wrong. Eligibility for Olympic Programming turns not on

whether someone is a Paralympic athlete, but rather whether someone is an Olympic

athlete. The criterion used by the USOC is therefore not Paralympian, but Olympian. That

is crucial. The term Olympian is not closely aligned with the ADA's definition of "disability."

Moreover, the term Olympian is not a classification that by its terms specifically "singles out"

handicap individuals or is one that evidences any discriminatory animus towards

handicapped individuals. And, of course, there is nothing in the record to suggest that the

USOC's classification was adopted based on animus to individuals with disabilities.

8.

The USOC's neutral classification of being an Olympic athlete to participate

in or qualify for Olympic programming is not a proxy for discrimination because there is no

close "fit" between that term and disability. It is thus unlike the loaded terms found to be

proxies in cases cited by Plaintiff.

Certification Pursuant to Local Rule 7.1A

The undersigned certifies that she conferred with counsel for Plaintiff who stated that

Plaintiff did not object to the instant submission provided Plaintiff is given the opportunity to

respond. Defendant does not object to any response.

Illes - 6323410507 - 76677 V1

3

Case 1:99-cv-02077-JLK-MEH Document 177 Filed 09/19/05 USDC Colorado Page 4 of 5
Respectfully submitted this 19th day of September, 2005.
HOGAN & HARTSON L. L. P.
/s/ John W Cook John W. Cook Virginia S. Morgan Two North Cascade Avenue, Suite 1300 Colorado Springs, CO 80903 Telephone: (719) 448-5900 FAX: (719) 448-5922 E-mail: jwcook@hhlaw.com E-mail: vsmorgan@hhlaw.com
And
Christopher T. Handman
HOGAN & HARTSON L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004-1109 Telephone: (202) 637-5600 FAX: (202) 637-5910 E-mail: cthandman@hhlaw.com
And
Raymond M. Deeny N. Dawn Webber SHERMAN & HOWARD, L.L.C. 90 South Cascade Avenue, Suite 1500 Colorado Springs, CO 80903 Telephone: (719) 475-2440 FAX: (719) 635-4576 E-mail: rdeeny@sah.com E-mail: dwebber@sah.com
Attorneys for Defendant United States Olympic Committee

Illes· 63234/0507 • 76677 V1

4

Case 1:99-cv-02077-JLK-MEH Document 177 Filed 09/19/05 USDC Colorado Page 5 of 5
CERTIFICATE OF SERVICE I hereby certify that on September 19, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Amy Farr Robertson arob@foxrob.com Timothy P. Fox tfox@foxrob.com Darold W. Killmer dkillmer@killmerlane.com Mari Newman mnewman@killmerlane.com
/s/ Sandra J. Kaus

Illes· 63234/0507 • 76677 V1

5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-2077 MARK E. SHEPHERD, SR.,
Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE,
Defendant.
PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF HIS MOTION FOR PARTIAL SUMMARY ADJUDICATION
Plaintiff Mark E. Shepherd, Sr., by and through his counsel, hereby submits this reply memorandum in support of his Motion for Partial Summary Adjudication (“Plaintiff’s Motion”).
Defendant United States Olympic Committee’s (“USOC’s”) opposition to Plaintiff’s Motion proceeds as if the world of sport were divided in two: Olympic athletes; and the rest. It thus treats elite Paralympic athletes as the legal equivalent of a group of guys playing pick-up basketball in a local gym. Because Congress has mandated that the USOC administer both the Olympics and the Paralympics and because the USOC itself describes the Paralympics as the equivalent of the Olympic Games for persons with disabilities, its discrimination against Paralympic athletes violates Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., and section 504 of the Rehabilitation Act (“Section 504”). 29 U.S.C. § 794.

1. The USOC’s Premise that Olympic Athletes Are Superior to Paralympic Athletes Is Wrong and Reflects Their Discriminatory Stereotypes. The USOC is statutorily charged with “exercis[ing] exclusive jurisdiction . . . over . . . all
matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-American Games” and “support[ing] amateur athletic activities involving the United States and foreign nations.” 36 U.S.C. § 220503(3)(A) & (5). Congress expressly defined “amateur athlete” to include both Olympic and Paralympic athletes. Id. § 220501(b). The USOC itself describes the Paralympics as “the equivalent of the Olympic Games for the physically challenged.”1 Paralympic athletes are highly-skilled elite athletes, equal to Olympic athletes in their talent, athleticism, desire and tenacity -- the values we cherish in our elite athletes.
Despite this express congressional mandate and its own recognition that the Paralympics are equivalent to the Olympics, the theme of the USOC’s Response in Opposition to Plaintiff’s Motion for Partial Summary Adjudication (“Def. Opp.”) is that Olympic athletes are uniquely superior to all other athletes -- including Paralympic athletes -- and thus worthy of the USOC’s exclusive support. The USOC asserts that “Olympic programming is denied to all but the most elite athletes,” and implies that providing benefits to Paralympic athletes would undermine its “basic nature, character, [and] purpose,” and “effectively eliminate selective criteria altogether.” (Def. Opp. at 10, 11, 14.) In contrast to Olympic athletes, the USOC argues, Paralympic athletes are the equivalent of “junior athletes, senior athletes, national or university level athletes and

1

USOC 2000 Annual Report at 18 (DP767). (Declaration of Amy F. Robertson

(filed Sept. 18, 2002) Ex.2.)

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countless other athlete categories.” (Id. at 9-10.) These arguments -- far from justifying the USOC’s discrimination -- reflect precisely the
stereotypes the ADA and Section 504 were enacted to combat. See 42 U.S.C. § 12101(a)(7) (“Congress finds that . . . individuals with disabilities . . . have been faced with restrictions and limitations [and] subjected to a history of purposeful unequal treatment . . . resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society”). The USOC’s exclusion of Paralympians is based on the incorrect stereotype that they are not elite athletes of the same caliber as Olympic athletes. This is discrimination, in violation of the letter and spirit of the ADA.
The USOC also attempts to justify its exclusion of Paralympic athletes on the grounds that “the USOC’s policies exclude most of the human population, irrespective of disability.” (Def. Opp. at 12.) The universe at issue is not the entire human population, however; it is the universe of elite athletes for whom Congress has assigned the USOC responsibility, including both Olympic and Paralympic athletes. Under the USOC’s rationale, it could provide benefits only to white Olympic athletes and argue that this did not discriminate against African-American Olympic athletes because most of the white population of the world would not qualify either.2
The USOC asserts that “Olympic programming is universally denied to all athletes

2

This is also the flaw in Defendant’s proxy argument. It argues that the

“classification at issue” is “Olympic caliber athlete” and not “Paralympian.” (Def. Opp. at 12

n.6.) Within the relevant universe of elite athletes, however, whether one focuses on the

included class -- Olympic athletes -- or the excluded class -- Paralympic athletes -- the

discrimination is equally evident. “Olympic caliber athlete” is a proxy for elite non-disabled

athlete and “Paralympic athlete” is a proxy for elite disabled athlete. Providing benefits to the

former but not the latter is facial disability discrimination.

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(disabled or otherwise) who are not of Olympic caliber,” and specifically notes that Pan American athletes receive benefits inferior to those received by Olympic athletes. (Def. Opp. at 8, 10.) These assertions are misleading. The USOC’s Resource Allocation Policy states that, “[p]articipation in Athlete Support Programs is available only to athletes who are eligible to represent the United States and who intend to compete, if selected, in the next Olympic or Pan American Games.” (Def.’s Mot. for Summ. J., Ex. B at 1 (emphasis added).) The USOC provides Pan American athletes with the same grants and insurance it provides Olympic athletes but denies Paralympic athletes. (Id. at 3.) This is important because the USOC argues that Plaintiff is not seeking equal treatment, but rather “different or separate services.”3 (Def. Opp. at 9.) Yet the USOC provides precisely the same grants and insurance that Plaintiff now seeks to both Olympic and Pan American athletes within the same program. There would be nothing “different” or “separate” about providing those benefits to Paralympic athletes as well. The fact that there are some benefits that Olympic athletes receive but Pan American athletes do not4 does

3

Defendant argues that “the ADA does not require the provision of different or

separate goods or services.” (Def. Opp. at 9.) This is inaccurate. The ADA explicitly

anticipates that separate goods and services may be required to permit individuals with

disabilities to enjoy certain benefits. 42 U.S.C. § 12182(b)(1)(A)(iii); see also Concerned

Parents to Save Dreher Park Ctr. v. City of W. Palm Beach, 846 F. Supp. 986, 991 (S.D. Fla.

1994) (citing the Title II regulation equivalent to § 12182(b)(1)(A)(iii) and holding that city

could not cut recreation programs for individuals with disabilities, despite the fact that general

recreation programs were technically open to all). Although Plaintiff does not believe it is

necessary to rely on this provision -- as he is not seeking separate benefits -- even if the USOC

were correct that providing the same benefits to Paralympic athletes would constitute a separate

program, this provision would provide independent grounds on which to order the USOC to do

so.

4

Pan American athletes receive medal incentives of approximately the same

magnitude as Paralympic athletes (compare Resource Allocation Policy at 6 with Stipulations

(continued...)

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not excuse Defendant’s discrimination: in contrast to Paralympic athletes, Pan American athletes do not belong to a protected class. For example, it does not appear to be the case that Pan American athletes are all Latino and Olympic athletes largely non-Latino. Disparities in treatment among non-protected classes do not violate civil rights laws.
Finally, the USOC suggests that Plaintiff’s approach will require the National Football League and the Professional Golfers’ Association to provide separate but equal programming for “any athlete who cannot qualify for their current programs.” (Def. Opp. at 14.) Again, Plaintiff is not asking for equal programming for “any athlete who cannot qualify” for the Olympics; he is asking for such programming for a specific, congressionally-recognized set of elite athletes that the USOC itself acknowledges are equivalent to Olympic athletes. In any event, because neither the NFL nor the PGA was chartered by Congress and mandated to administer “Parafootball” or “Paragolf,” the USOC’s analogy fails. 2. The USOC’s Attempts to Distinguish Plaintiff’s Cases Are Unavailing.
Defendant attempts to avoid the consequences of its facially discriminatory policies by arguing that “with rare exception” Plaintiff relies on cases decided under the Fair Housing Act rather than the ADA or Section 504. (Def. Opp. at 10.) This selective reading overlooks most of Plaintiff’s cases. For example, Plaintiff relied on Bay Area Addiction Research and Treatment, Inc. v. City of Antioch for the on-point holding that “facially discriminatory laws present per se violations” of the ADA. 179 F.3d 725, 735 (9th Cir. 1999) (cited in Pl. Mem. in Supp. of his
4(...continued) ¶ 8), and the USOC provides Pan American athletes with second priority for training facilities, whereas Olympic athletes get first priority and Paralympic athletes, third. (Def. Opp. at 10.)
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Mot. for Partial Summ. Adjudication (“Pl. MPSA”) at 12-13). He also provided ADA and Section 504 cases establishing the elements of a prima facie case. See Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999) (outlining prima facie case under Section 504); Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000) ) (outlining prima facie case under Title III of the ADA); Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1363 (S.D. Fla. 2001) (same). Finally, Plaintiff presented legislative history demonstrating that Congress intended to prohibit just the sort of exclusionary practices at issue here: “it is a violation of [Title III] to exclude persons with disabilities. For example, it would be a violation for a grocery store to impose a rule that no blind persons would be allowed in the store, or for a drugstore to refuse to serve deaf people.” H. R. Rep. No. 101485, pt. 2, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 388. These authorities demonstrate conclusively that the USOC’s policies constitute per se disability discrimination.5
The holding in Bangerter v. Orem City Corp. that Defendant disputes -- apparently on the grounds that Bangerter concerned the Fair Housing Act, (see Def. Opp. at 10) -- is that Plaintiff “makes out a prima facie case of intentional discrimination . . . merely by showing that a protected group has been subjected to explicitly differential -- i.e. discriminatory -- treatment.” 46 F.3d 1491, 1501 (10th Cir. 1995) (quoted in Pl. MPSA at 12). Establishing a prima facie case

5

Defendant also ignores the ADA cases Plaintiff cited in support of the proposition

that, even if the USOC has not committed facial disability discrimination, its policies “screen out

or tend to screen out” elite disabled athletes in violation of 42 U.S.C. § 12182(b)(2)(A)(i). See

Hahn ex rel. Barta v. Linn County, 130 F. Supp. 2d 1036, 1055 (N.D. Iowa 2001); Bowers v.

Nat’l Collegiate Athletic Ass’n, 118 F. Supp. 2d 494, 518 (D.N.J. 2000); Guckenberger v.

Boston Univ., 974 F. Supp. 106, 134 (D. Mass. 1997), cited in Pl. MPSA at 16-17; see also id. at

8 & 9 n.22 (citing cases).

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of discrimination by showing explicitly differential treatment of a protected group is hardly a controversial proposition. Bangerter’s language closely tracks the statutory language at issue here: the ADA prohibits subjecting individuals with disabilities to a denial of opportunity and affording such individuals an opportunity that is not equal to that afforded others, that is, subjecting such individuals to differential treatment. 42 U.S.C. § 12182(b)(1)(A)(i) & (ii). The USOC has done just this, and is in violation of the ADA.
The USOC also asserts that Plaintiff has failed to show how the USOC’s policy “is intended to or does disparately impact disabled athletes to a greater extent than it does nondisabled athletes.” (Def. Opp. at 13.) Quite to the contrary, there is no dispute that the USOC intentionally treats Olympic athletes more favorably than Paralympic athletes. Where a policy discriminates on its face, the motive of its author is irrelevant. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991).6 Assuming, arguendo, that the USOC’s exclusion of Paralympic athletes is a neutral policy, its effect is clearly to exclude elite disabled athletes. As the USOC concedes, “a wheelchair athlete is unlikely to qualify for the Olympics.” (Def. Opp at 12.) Because the USOC has provided no evidence that its exclusionary policy is necessary to the provision of the benefits at issue, it is illegal under 42 U.S.C. § 12182(b)(2)(A)(i).
Finally, the USOC attempts to justify its discrimination on the grounds that many

6

The USOC asserts two of Plaintiff’s cases are inapposite because they require a

demonstration of the defendant’s intent. (Def. Opp. at 13.) This is incorrect. Both cases make

clear that, with respect to a facially discriminatory ordinance -- or one that discriminates by

proxy -- motive and intent are irrelevant. Alliance for the Mentally Ill v. City of Naperville, 923

F. Supp. 1057, 1073 (N.D. Ill. 1996); Horizon House Developmental Servs, Inc. v. Township of Upper Southampton, 804 F. Supp. 683, 694 (E.D. Pa. 1992), aff’d, 995 F.2d 217 (3rd Cir. 1993).

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Paralympic athletes have achieved excellent results. (Def. Opp. at 14-15.) All this truly demonstrates is the exceedingly high level of dedication and sacrifice of those Paralympic athletes, making them perhaps more worthy of the title “elite” than their Olympic brothers and sisters. They achieved excellence while buying their own health insurance and working to provide the funding that Olympic grants provide elite non-disabled athletes, and they won medals with either no monetary incentives or (starting with the most recent Paralympics) incentives one-tenth the size of those offered Olympic athletes. The USOC’s argument ignores the many elite disabled athletes screened out by its discrimination, athletes unable to raise their own funds or secure their own training time and thus denied the opportunity to excel. Discrimination occurs when equal opportunity is denied. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995) (“[I]njury in [discrimination] cases . . . is that a ‘discriminatory classification prevent[s] the plaintiff from competing on an equal footing’”) (quotation omitted). Excellent achievement by certain members of a protected class does not justify discrimination against the entire class. 3. This Court Has the Power to Resolve the Matters Raised in Plaintiff’s Motion.
A. Defendant Has Waived Any Procedural Objection to Plaintiff’s Motion. Defendant explicitly agreed to the procedure it now challenges. The parties’ cross motions on the issue of discrimination were the agreed-upon resolution of Plaintiff’s ongoing efforts to get the USOC to produce documents related to his athletic claims, efforts that commenced with the service of discovery requests on November 16, 2001. The somewhat tedious history of Plaintiffs’ efforts and the parties’ negotiations is set forth in an accompanying
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declaration. (Third Declaration of Amy F. Robertson (“Third Robertson Decl.”) ¶¶ 2-10 & Exs. 1-29.) This process culminated with Defendant’s signing of a Joint Motion for Briefing Schedule and to Extend Discovery (filed Aug. 22, 2002) (“Joint Motion”), which stated:
Defendant does not contest that there are disparities in funding and support between Olympic and Paralympic athletes. Rather, it asserts that these disparities do not constitute illegal discrimination under the ADA or Rehabilitation Act. In light of this, the Parties have agreed to enter a series of stipulations concerning the USOC’s funding and support and to submit cross-motions for summary judgment to the Court on the question whether these disparities constitute illegal discrimination. The Court’s determination of that question will then guide the Parties in more limited discovery. (Id. ¶ 3 (emphasis added).) The parties’ correspondence makes clear that they contemplated reserving other disputed issues. (Third Robertson Decl. Exs. 9 & 28.) As part of this agreement, Plaintiff withdrew his Motion to Compel (filed May 29, 2002) and agreed to a stay of discovery on his athletic claims. (Joint Motion ¶ 5.) Defendant explicitly agreed to the procedure pursuant to which Plaintiff filed his Motion and Plaintiff relied on that agreement to his detriment. Defendant is estopped from objecting to the procedure. B. Rule 56 Permits This Court to Rule on the Issue Raised in Plaintiff’s Motion. The parties agree that it would simplify the litigation and streamline discovery to resolve the legal question whether the USOC engages in illegal disability discrimination when it provides benefits to Olympic athletes that it does not provide to Paralympic athletes. (See Pl. MPSA at 5-8; Joint Motion ¶ 3.) Plaintiff filed a motion for partial summary adjudication to accomplish this agreed-upon goal. This Court has a number of procedural routes by which it can rule on this question, including, but not limited to, granting Plaintiff’s Motion. As this Court held in Cook v. Rockwell International Corp., “‘[a] partial summary
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judgment ruling may dispose of only a single issue relevant to a claim. . . . In availing itself of the ability granted by Rule 56 to issue orders which resolve significant questions, a court can focus the litigation on the true matters in controversy.’” 181 F.R.D. 473, 486 n.13 (D. Colo. 1998) (ellipses in original) (quoting 11 J. Moore, Moore’s Federal Practice ¶ 56.40[2] at 56-280 to 56-281 (3d ed. 1998)). In that case, the plaintiffs had moved for summary judgment on three issues, none of which would have fully resolved a claim in the litigation. This Court -- citing to Rules 56(a) and 56(d) -- “reject[ed] Defendants’ argument that Plaintiffs’ motion [was] procedurally defective in that . . . it [did] not seek to resolve any single claim in the lawsuit in its entirety.” Id. Through the parties’ motions here, this Court has the opportunity to resolve a significant question and focus the litigation on the true matters in controversy. This would accord with the duty to construe the Federal Rules of Civil Procedure so as “to secure the just, speedy, and inexpensive determination” of this case. Fed. R. Civ. P. 1.
Defendant argues that it is inappropriate to bring an independent motion under Rule 56(d). Plaintiff concedes that courts are split on this question. See Advanced Semiconductor Materials Am., Inc. v. Applied Materials, Inc., No. C-93-20853 RMW, 1995 WL 419747, at *24 (N.D. Cal. Jul. 10, 1995) (Third Robertson Decl. Ex. 30) (discussing split and concluding that considering partial summary judgment on the issue of patent infringement was appropriate). However, even if Defendant is correct, Plaintiff’s Motion is not moot:
! Defendant asserts that “Rule 56(d)’s issue-narrowing provision operates only in the wake of a proper, but unsuccessful motion for summary judgment.” (Def. Opp. at 3.) According to this approach, this Court may deny Defendant’s motion
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for summary judgment and rule in Plaintiff’s favor on the issue raised in his Rule 56(d) motion in the wake of that denial. ! This Court may construe Plaintiff’s Motion as a motion for partial summary judgment pursuant to Rule 56(a) and -- in accord with Defendant’s approach quoted above -- resolve the issue he raised either pursuant to that Rule or Rule 56(d). See, e.g. Americans Disabled for Accessible Pub. Transp. (ADAPT) Salt Lake v. Skywest Airlines, Inc., 762 F. Supp. 320, 323 (D. Utah 1991) (granting partial summary adjudication pursuant to Rule 56(d)). ! This Court may enter summary judgment (or partial summary adjudication) against the USOC sua sponte on the issue raised in Plaintiff’s motion, as it has been fully briefed by both parties. See, e.g., Howell Petroleum Corp. v. Leben Oil Corp., 976 F.2d 614, 620 (10th Cir. 1992) (holding court may grant summary judgment sua sponte if the losing party is on notice). As the Advanced Semiconductor court noted, “the purpose of summary judgment is met when the summary adjudication of preliminary issues . . . helps to focus the issues to be litigated, thus conserving judicial resources.” 1995 WL 419747, at *4. C. Granting Plaintiff’s Motion for Partial Summary Adjudication Would Not Constitute an Advisory Opinion. Both parties agree that the question whether the USOC discriminates in denying benefits to Paralympic athletes is central to resolution of this case. They also agree that Plaintiff is a Paralympic caliber athlete who is not eligible to apply for the USOC’s Olympic programming. (Def’s. Mot. for Summ. J. at 8.) As such, the ruling Plaintiff requests could not possibly be
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farther from an advisory opinion or one based on hypothetical facts. Several of Defendant’s arguments to the contrary are particularly baffling. For example,
the USOC specifically agreed that the question of disability discrimination should be put before the Court while reserving the question whether the USOC is a place of public accommodation. (See Third Robertson Decl. ¶ 9 & Ex. 28.) Yet it now argues that “[i]f the USOC’s Olympic programming were ultimately found not to be a place of public accommodation,” then the Plaintiff’s requested ruling would be advisory only. (Def. Opp. at 5.)
The USOC also argues that Plaintiff has no standing to raise the question of discrimination. Again, this is a question that Defendant agreed to reserve. (See Third Robertson Decl. ¶ 7 and Ex. 9.) Defendant is, in any event, wrong. Plaintiff has stated that he is training for the 2004 Paralympics, (Declaration of Mark E. Shepherd, Sr. ¶ 5 (filed Sep. 18, 2002)), and Defendant has introduced no evidence to the contrary. Because discrimination inheres in the denial of opportunity, not the absence of a particular result, Plaintiff has standing to challenge the USOC’s denial of the opportunity to compete for Project Gold medal incentives, to obtain priority in use of training facilities or to obtain other benefits. See, e.g., Adarand, 515 U.S. at 211. Plaintiff has standing to challenge the USOC policy that makes him ineligible for the benefits it provides to Olympic athletes.
CONCLUSION For the reasons set forth above and in Plaintiff’s Memorandum in Support of his Motion for Partial Summary Adjudication, Plaintiff respectfully requests that this Court grant his Motion and hold that the USOC’s policy excluding Paralympic athletes from certain benefits constitutes
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facial disability discrimination in violation of 42 U.S.C. § 12182(b)(1)(A)(i) & (ii) or, in the alternative, that it screens out elite athletes with disabilities, in violation of § 12182(b)(2)(A)(i)
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Respectfully submitted, Dated: October 16, 2002

FOX & ROBERTSON, P.C.
Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Darold Killmer Killmer & Lane, LLP 1543 Champa Street, Suite 400 The Odd Fellows Hall Denver, CO 80202 303.571.1000
Attorneys for Plaintiff

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Certificate of Service
I hereby certify that on October 16, 2002, copies of Plaintiff’s Reply Memorandum in Support of His Motion For Partial Summary Adjudication and Third Declaration of Amy F. Robertson, were served by first-class mail, postage prepaid, on:
John W. Cook, Esq. Virginia S. Morgan, Esq. Hogan & Hartson L.L.P. 2 N Cascade Ave., Suite 1300 Colorado Springs, CO 80903
Raymond M. Deeny, Esq. N. Dawn Webber, Esq. Sherman & Howard L.L.C. 90 S Cascade Ave., Suite 1500 Colorado Springs, CO 80903
______________________________

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-2077 MARK E. SHEPHERD, SR.,
Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE,
Defendant.
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO THE USOC’S MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF’S SECOND AND THIRD CLAIMS FOR RELIEF
Plaintiff Mark E. Shepherd, Sr., by and through his counsel, hereby submits this Memorandum in Opposition to the USOC’s Motion for Summary Judgment on Plaintiff’s Second and Third Claims for Relief (“Defendant’s Motion” or “Def. MSJ”)
Defendant United States Olympic Committee (“USOC”) seeks for itself a status not afforded even the sovereign states: the ability to discriminate on the basis of disability unfettered by our nation’s civil rights laws. It has, however, presented no support for the proposition that in attempting to organize amateur sports, Congress placed amateur athletes outside the protection of these laws. The USOC argues, in the alternative, that even if it is subject to the Americans with Disabilities Act, 42 U.S.C. §§ 12181 - 12189 (“ADA”), and section 504 of the Rehabilitation Act 29 U.S.C. § 794 (“Section 504”), it is free to discriminate against Paralympic athletes on the implausible grounds that this classification has nothing to do with disability.

It is important to describe what is not at issue in this litigation. Plaintiff has sued under the ADA and Section 504, not the Amateur Sports Act, 36 U.S.C. §§ 220501 - 220529 (“ASA”). He does not seek to compel the USOC to modify the rules of basketball so that he can compete with the Olympic, rather than the Paralympic, team. He does not seek different, better or special benefits in comparison with the benefits provided Olympic athletes. He simply asks the USOC to cease discriminating against Paralympic athletes with respect to the same benefits they provide Olympic athletes.
The USOC has failed to excuse itself from compliance with the ADA and Section 504 or to justify its admitted discrimination. For the reasons set forth below, Defendant’s Motion should be denied.
RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS Plaintiff incorporates by reference the “Background” section of his Memorandum in Support of his Motion for Partial Summary Adjudication (“Pl. MPSA” or “MPSA”). (See id. at 2-5.) In response to Defendant’s Statement of Undisputed Material Fact, Plaintiff states: 1. Plaintiff requires additional discovery to address the broad assertion in Paragraph 1. (Second Declaration of Amy F. Robertson (“Second Robertson Decl.”) ¶¶ 5-9 (filed Oct. 9, 2002).) Defendant concedes, however, that it does not make Basic Grants, Special Assistance Grants, Tuition Assistance Grants or Elite Athlete Health Insurance available to Paralympic athletes, nor does it provide equivalent programs for Paralympic athletes. (Stipulations ¶¶ 10, 12-14 (filed Sept. 18, 2002); Def. MSJ at 5:4-5.) It provides medal incentives to Paralympic athletes in amounts one-tenth the amounts provided Olympic athletes; and it provides first
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priority access to training facilities for Olympic athletes but third priority for Paralympic athletes. (Stipulations ¶¶ 8-9.)
2. Paragraphs 2, 3, and 5 are definitions used in the Stipulations. (Id. ¶ 3.) 3. Plaintiff admits Paragraphs 4, 6, 7, 8, 9, and 10. 4. In response to Paragraph 11, Plaintiff states that he seeks to compel the USOC to cease discriminating on the basis of disability. In some cases, for example, the four programs at issue in his MPSA,1 this will take the form of providing identical programming; in other cases, the formula may be more complex.
PROCEDURAL STATUS As Plaintiff explained in support of his Motion for Partial Summary Adjudication, to obtain this Court’s guidance on an issue central to the case, the parties have cross-moved based on a set of Stipulations. Plaintiff agrees that, as to the four issues raised in his MPSA -- which relate to discrete benefits provided to Olympic but not Paralympic athletes -- there are no disputed facts and the legal issues are ripe for adjudication. With respect to factually more complex issues -- for example, the amount of funding provided to the various organizations administering Olympic as opposed to Paralympic sports -- further discovery is required. Based on the above, it is only if the Court agrees that the USOC is at liberty to

1

The four issues are: (1) the USOC’s provision of grants to Olympic athletes for

which Paralympic athletes are not eligible; (2) its provision of Elite Athlete Health Insurance to

Olympic athletes for which Paralympic athletes are not eligible; (3) its provision of medal

incentives to Olympic athletes that it (previously) did not provide to Paralympic athletes or

(more recently) provides to Paralympic athletes in amounts one-tenth of the amounts provided

Olympic athletes; and (4) its assignment of Olympic athletes first priority, and Paralympic

athletes third priority, in obtaining access to USOC training facilities.

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discriminate against Paralympic athletes that it would be appropriate to grant Defendant’s Motion. Should this Court agree with Plaintiff that such discrimination is illegal disability discrimination, the appropriate disposition would be to grant partial summary adjudication to Plaintiff on the four areas in which Defendant concedes such discrimination is explicit and to deny Defendant’s Motion pursuant to Rule 56(f) to permit the parties to conduct discovery on more complex questions of funding and support. (See Second Robertson Decl. ¶¶ 8, 9.)
ARGUMENT I. The Amateur Sports Act Does Not Bar Plaintiff’s Claim under the Americans with
Disabilities Act or Section 504. Defendant argues that Plaintiff’s claims challenging discriminatory provision of benefits under the ADA and Section 504 are preempted by the ASA. Defendant does not, however, cite to any cases that support that argument. Instead, it cites a series of cases brought directly under the ASA or under state tort law involving athlete eligibility for, or participation in, competition2 or injury in the course of competition.3 The court in each of these cases held that the ASA did

2

Michels v. United States Olympic Comm., 741 F.2d 155, 156 (7th Cir. 1984)

(addressing ASA claims of athlete challenging disqualification following drug test); Oldfield v.

Athletic Cong., 779 F.2d 505, 506 (9th Cir. 1985) (addressing ASA claims of athlete challenging

suspension of amateur status and resulting disqualification from competition); DeFrantz v.

United States Olympic Comm., 492 F. Supp. 1181, 1186 (D.D.C. 1980) (addressing ASA claims

of athletes challenging the USOC’s decision not to send a team to the Moscow Olympics);

Walton-Floyd v. United States Olympic Comm., 965 S.W.2d 35, 35-37, 40 (Tex. App. 1998)

(addressing ASA and state tort claims of athlete challenging disqualification following drug

test); Dolan v. United States Equestrian Team, Inc., 608 A.2d 434, 435 (N.J. Super. Ct. App.

Div. 1992) (addressing ASA and state tort claims of athlete challenging selection of different

athlete for world championship team), cited in Def. MSJ at 11-12.

3

Martinez v. United States Olympic Comm., 802 F.2d 1275, 1277, 1280 (10th Cir.

(continued...)

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not create a private right of action.4 The courts in the two state court cases also held that state tort claims were preempted by the ASA.5 None of these cases is relevant to Mr. Shepherd’s claims, which were not brought under the ASA or state tort law and do not relate to his eligibility to compete or an injury sustained in competition. Defendants do not cite any cases similar to the present one in which an athlete brought federal civil rights claims against the USOC.
At least one case has explicitly held that the ASA does not preempt the ADA. In Devlin ex rel. Devlin v. Arizona Youth Soccer Association, a child with a disability brought suit against the Arizona Youth Soccer Association under the ADA to be able to practice and play with a youth soccer team. No. CIV 95-745 TUC ACM, 1996 WL 118445, at *2-4 (D. Ariz. Feb. 8, 1996) (Second Robertson Decl. Ex. 1). The court rejected the defendant’s argument that the plaintiff had to arbitrate pursuant to the ASA instead, holding that “the ADA . . . preempt[s] federal and state laws that provide less protection than the ADA and by precluding a judicial remedy, the Amateur Sports Act provides less protection for the rights of individuals with disabilities than does the ADA.” Id. at *2 (citing 42 U.S.C. § 12201(b)). That is, it is the ADA that preempts the ASA, and not -- as the USOC argues -- the other way around.
In two other cases, courts considered on their merits federal civil rights claims against

3(...continued) 1986), cited in Def. MSJ at 11.

4

Martinez, 802 F.2d at 1280-81; Oldfield, 779 F.2d at 508; Michels, 741 F.2d at

157-58; DeFrantz, 492 F. Supp. at 1192; Walton-Floyd, 965 S.W.2d at 37-40; Dolan 608 A.2d at

437.

5

Dolan, 608 A.2d at 437-38; Walton-Floyd, 965 S.W.2d at 40.

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national governing bodies of sport (“NGBs”).6 In Akiyama v. United States Judo, Inc., 181 F. Supp. 2d 1179 (W.D. Wash. 2002), for example, judo competitors brought claims of religious discrimination against the NGB of judo under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a), as well as the under the ASA itself. The court ordered the plaintiffs to arbitrate their ASA claims and stayed the plaintiffs’ civil rights claims. 181 F. Supp. 2d at 1181. On the defendants’ motion to confirm the favorable arbitration decision on the ASA and for summary judgment on the remainder of the claims, the court rejected the argument that the plaintiffs’ civil rights claims were precluded by the arbitration decision: “defendants have offered no reason to believe that the legal conclusion that defendant . . . did not violate the Amateur Sports Act compels a similar finding” under the Civil Rights Act or state law. Id. at 1182-83. The court then went on to consider the plaintiffs’ Civil Rights Act claim on the merits, ultimately reaching the conclusion that forcing participants to bow did not constitute religious discrimination. Id. at 1188. See also Sternberg v. U.S.A. Nat’l Karate-Do Fed’n, Inc., 123 F. Supp. 2d 659, 661-62 (E.D.N.Y. 2000) (holding that female athlete stated cause of action against the NGB of karate gender discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, based on the NGB’s decision to withdraw a women’s team from world championship competition while permitting the equivalent men’s team to participate).
The case of Slaney v. International Amateur Athletic Federation, 244 F.3d 580 (7th Cir.),

6

NGBs are subjects of the ASA’s dispute resolution provision. See 36 U.S.C.

§§ 220504(b)(1) (defining “member” to include NGBs) & 220509(a) (the USOC is to establish a

dispute resolution system for members). It is thus significant that courts have considered civil

rights claims against NGBs without holding those claims preempted by the ASA.

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cert. denied 122 S. Ct. 69 (2001), clearly demonstrates that any preemption under the ASA is limited to state tort claims relating to athlete eligibility for competition. In Slaney, an athlete challenged her drug-related disqualification based on state tort law and the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”). The court noted specifically that “[t]here is no disagreement that state-law causes of action can be brought against the USOC,” but held that, because her state tort claims related to her eligibility for competition, they were preempted by the ASA. Id. at 595-96. Furthermore, following this narrow holding of preemption of state tort claims, the court went on to consider the plaintiff’s federal RICO claim -- relating to the same competitive eligibility decisions -- on the merits. Id. at 596-601. In addition, two other cases have permitted athletes to proceed with state contract claims against the USOC. See Foschi ex. rel Foschi v. United States Swimming, Inc., 916 F. Supp. 232, 241 (E.D. N.Y. 1996); Harding v. United States Figure Skating Ass’n, 851 F. Supp. 1476, 1480 (D. Or. 1994).
The cases discussed above confirm that any ASA preemption is limited to state tort claims that address athlete eligibility for competition and does not apply to Plaintiff’s federal civil rights claims challenging discrimination in the provision of benefits and services. II. Defendant’s Discrimination Against Paralympic Athletes Constitutes Disability
Discrimination in Violation of the ADA and Section 504. The second section of Defendant’s brief makes a series of intriguing arguments -- for a different case entirely. Its arguments would be relevant if Mr. Shepherd had sought to modify the rules of basketball to permit him to compete with the Olympic team or if he had demanded specialized insurance, with greater coverage than that offered in the current Elite Athlete Health
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Insurance. However, none of the USOC’s arguments support the proposition that it may deny Paralympic athletes the very same benefits that it provides Olympic athletes.
A. Discrimination Against Paralympians Is Disability Discrimination. While considering Defendant’s individual legal arguments, it is important to keep in mind that discrimination against Paralympians is disability discrimination. This is clear from the USOC’s own statements, for example, that “all Paralympians are disabled,” (Def. MSJ at 12), or that “[t]he Paralympics are the equivalent of the Olympic Games for the physically challenged.”7 It is underscored by the fact that the USOC can point to only one disabled Olympic athlete -Marla Runyon, a blind runner in the 2000 summer Olympics -- out of the 602 American athletes the USOC sent to those Olympics.8 As such, athletes with disabilities made up one out of 602 -or approximately 0.16% -- of that group. The USOC sent 250 athletes to the 2000 summer Paralympics.9 As such, only one out of 251 or 0.4% of elite disabled athletes -- that is, Ms. Runyon alone -- participated in the Olympics. Given that over 99% of Olympic athletes are nondisabled, “all Paralympians are disabled,” and over 99% of elite disabled athletes participate in the Paralympics rather than the Olympics, discrimination against Paralympians is simply disability discrimination. It is, at the very least, an extremely close proxy for disability discrimination and, as such, constitutes intentional, facial discrimination. See, e.g. McWright v.

7

USOC 2000 Annual Report at 18 (DP767). (Declaration of Amy F. Robertson

(filed Sept. 18, 2002) Ex.2.)

8

USOC 2000 Annual Report at 4 (DP751). (Second Robertson Decl. Ex. 2.)

9

Id.

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Alexander, 982 F.2d 222, 228 (7th Cir. 1992); Alliance for the Mentally Ill v. City of Naperville, 923 F. Supp. 1057, 1070 (N.D. Ill. 1996).
The Paralympics are not the junior varsity or the practice squad or the minor leagues for the Olympics. They are world-class sporting events in which the competitors are elite amateur athletes with “agility, strength, speed, balance and other talents,” qualities the USOC incorrectly believes are the sole province of Olympic athletes. (See Def. MSJ at 19.) Paralympic athletes, like Olympic athletes, “possess[ ] immense abilities;” they do not, as the USOC suggests, consider themselves “relegated” to the Paralympics. (Cf. id. at 16.) They are able, strong, talented and proud competitors in the Paralympic Games.
It is also inaccurate to suggest that the skills of Paralympic athletes are inferior to the skills of Olympic athletes. Rather, the amateur athletes who compete in each different sport of the Olympics and Paralympics possess different sets of elite skills. Mr. Shepherd may not be able to compete in Olympic basketball, but then an Olympic ice dancer could not compete in Olympic basketball, and an Olympic basketball player could not compete in Paralympic wheelchair basketball. There is no reason in law, logic or sport to value one set of elite athletic skills over another.
When Congress gave the USOC -- in exchange for very valuable trademark rights -- the responsibility for administering United States participation in both the Olympics and the Paralympics, that responsibility included both categories of athletes. See 36 U.S.C. §§ 220503 & 220506. Indeed, when Congress defined the term “amateur athlete” in the ASA, it explicitly included both Olympic and Paralympic athletes. Id. § 220501(b)(1). Olympic and Paralympic
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athletes are all elite amateur athletes, each highly skilled in his or her individual sport. The USOC has elected, however, to provide grants, insurance, incentives and training priorities to one set of highly-skilled elite amateur athletes (the group 99% of whom are non-disabled) and to exclude another set of highly-skilled elite amateur athletes (all of whom are disabled). This discrimination -- on its face -- excludes elite disabled athletes and denies or provides unequal benefits to those athletes, in violation of the ADA and Section 504. 42 U.S.C. §§ 12182(b)(1)(A)(i) & (ii).10 In the alternative, discrimination against Paralympic athletes screens out or tends to screen out elite disabled athletes but is not necessary to the provision of the benefits in question, making it illegal under § 12182(b)(2)(A)(i).
B. Plaintiff is Otherwise Qualified for Defendant’s Benefits Defendant provides benefits to Olympic athletes that it does not provide Paralympic athletes. (Stipulations ¶¶ 8-14.) The USOC labels these benefits “Olympic programming,” makes being an Olympic athlete a prerequisite, and argues that Plaintiff is not otherwise qualified for the benefits because he is not an Olympic athlete. (Def. MSJ at 15.) Because it is precisely the USOC’s discrimination between Olympic and Paralympic athletes that is at issue here, this argument is circular. See Clark v. Va. Bd. of Bar Exam’rs, 880 F. Supp. 430, 441 (E.D. Va. 1995) (noting, in addressing mental health question on bar application, that “[w]hile Defendant argues that [the plaintiff] is not an ‘otherwise qualified individual’ because she failed to answer [the mental health question], this argument begs the question of whether [the question]
10 See also 32 C.F.R. §§ 56.8(a)(2)(ii) & (iii); 28 C.F.R. §§ 41.51(b)(1)(i) & (ii); 45 C.F.R. §§ 84.4(b)(1)(i) & (ii). These regulations implement Section 504. See Pl. MPSA at 9 n.22 (explaining the relationship of the various sets of Section 504 regulations).
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must be answered at all.”). Discrimination against Paralympic athletes is disability discrimination which cannot be justified by declaring certain benefits available only to Olympic athletes, and then disqualifying Paralympic athletes because they are not Olympic athletes.
Defendant attempts to distract attention from this circularity by characterizing the requirement that participants be “Olympic caliber athletes” as a physical qualification. That is, Defendant’s argument that Plaintiff is not otherwise qualified proceeds as if there were a single skills test for Olympic benefits that Mr. Shepherd had sought to modify:
[a]thletic programs, such as the USOC’s Olympic Programming, are by their very nature competitive, and impose eligibility criteria that may disqualify certain people with disabilities because such programs typically require agility, strength, speed, balance, and other talents not evenly distributed among the population. . . . The purpose of the USOC’s Olympic Programming is to train and obtain the best Olympic athletes for the United States -- a purpose that clearly requires the eligibility criteria of being an Olympic caliber athlete. (Def. MSJ at 19.) The USOC’s “Olympic Programming” is not, however, a competitive athletic program; it is a series of insurance benefits, cash supports and incentives, and gym priorities. The USOC has made no showing that it is necessary to the provision of health insurance that the insureds be Olympic rather than Paralympic athletes or that it is necessary to be able to walk in order to enjoy cash grants in support of one’s training. As pointed out above, supporting Paralympic athletes serves the goal of supporting athletes with “agility, strength, speed, balance, and other talents.” The last sentence of the quote above neatly encapsulates the circularity of the USOC’s argument: it attempts to enshrine the discrimination in the goal of the program (to train and obtain the best Olympic athletes) by ignoring the remainder of the USOC’s congressionally-
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mandated mission (to train and obtain the best Paralympic athletes11). Because Defendant’s limitation of its benefits to Olympic caliber athletes is not “necessary for the provision of the [benefits] being offered,” it violates the ADA. 42 U.S.C. § 12182(b)(2)(A)(i).
The cases on which the USOC relies make this distinction clear: in each, the qualification at issue was held to be necessary to the program in question. In Southeastern Community College v. Davis, for example, the Court held that a Deaf woman was not “otherwise qualified” to be a nursing student. 442 U.S. 397, 414 (1979). The qualification at issue in Davis -- the ability to hear -- was directly related to the benefit in question -- the ability to understand one’s teachers. Id. at 407-08.12 In contrast, Plaintiff does not have to have any particular physical qualification to enjoy the USOC’s benefits; in most cases, the only physical skill required is the ability to cash a check. Davis would only be on point if the nursing school (1) had had training programs for both Deaf and hearing students; (2) offered Hearing Student Insurance, Hearing Student Grants, Hearing Student Grade Incentives, and priority time at the school gym for the Hearing Students Athletic Club; and then (3) argued that Deaf students were not otherwise qualified for those benefits simply by dint of those labels.

11 See 36 U.S.C. § 220503(4).

12

See also Sandison v. Michigan High School Athletic Ass’n, 64 F.3d 1026, 1035

(6th Cir. 1995) (holding that rule prohibiting students over 19 from playing high school sports

was necessary to safeguard other players against injury and prevent unfair advantages); Pottgen

v. Missouri State High School Activities Ass’n, 40 F.3d 926, 929 (8th Cir. 1994) (same); Rhodes

v. Ohio High School Athletic Ass’n, 939 F. Supp. 584, 591-92 (N.D. Ohio 1996) (holding that

rule disqualifying student from high school sports after eight consecutive semesters was

necessary, among other things, to limit the level of skill of the players to create a more level

playing field).

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Defendant spends a great deal of time on PGA Tour, Inc. v. Martin, a case in which an elite disabled golfer was seeking to modify the tour rules to permit him to compete against nondisabled golfers. 532 U.S. 661, 669 (2001). Martin is not relevant to the present case for two reasons. First, Mr. Shepherd does not seek to compete in Olympic basketball against nondisabled basketball players. Second, Mr. Shepherd does not seek a reasonable modification of a neutral rule under 42 U.S.C. § 12182(b)(2)(A)(ii). Rather, he seeks the removal of a facially discriminatory provision that denies disabled athletes the ability to participate in the USOC’s benefits and provides them with unequal benefits, in violation of §12182(b)(1)(A)(i) & (ii). Where a provision is facially discriminatory, a reasonable accommodation analysis is not appropriate; rather, the facially discriminatory provision constitutes a per se violation of the ADA. Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 735 (9th Cir. 1999) (analyzing the regulation under Title II of the ADA that is equivalent to the reasonable modification provision of § 12182(b)(2)(A)(ii)). Defendants’ facially discriminatory rules excluding Paralympians from specific benefits are per se violations of the ADA.
In sum, because Plaintiff is an elite amateur athlete, fully able to enjoy the USOC’s grants, insurance, incentives and training priorities without the use of his legs, he is otherwise qualified for these benefits.
C. Plaintiff Is Not Asking the USOC to Alter its Mix of Services in Order to Accommodate Him.
Plaintiff brought this suit to compel the USOC to provide Paralympic athletes with the same benefits as it provides Olympic athletes. Specifically, in his MPSA he asks this Court to
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compel the USOC to make available to him the precise same Basic Grants, Tuition Assistance Grants, Elite Athlete Health Insurance, Project Gold medal incentives, and training facility priorities that the USOC makes available to Olympic athletes. In light of this, the USOC’s argument that it should not have to alter its mix of goods or services is beside the point.
In making this argument, the USOC relies on a Department of Justice regulation which states that the ADA “does not require a public accommodation to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.” 28 C.F.R. § 36.307(a). (See Def. MSJ at 20.) This provision was put in place to ensure, for example, that book stores would not be required to stock Braille books.13 If a proprietor may refuse to sell goods to people with disabilities and then argue that forcing him to cease this discriminatory practice would turn the very same goods into “accessible or special” goods, this single exception would swallow Title III whole. Yet this is what the USOC argues: that by making its benefits available to Paralympic athletes, those same benefits would become “accessible or special.” Under this reasoning, the USOC could declare that Paralympians were not allowed to purchase the goods for sale in the USOC gift shop and then argue that any attempt to alter that discriminatory rule would be forcing it to sell “accessible or special goods.”
The cases cited by Defendant demonstrate that section 36.307(a) is not applicable here. Defendant relies on five insurance cases in which the plaintiffs were requesting insurance products with more advantageous coverage than the ones offered by the defendants. Although
13 Preamble to Regulation on Nondiscrimination on The Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. pt. 36, app. B (2002) at 691.
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the court in each case held that the ADA did not require the provider to change the content of the
insurance policy, in each case the court made clear that the defendant had offered the same
insurance product to all employees.14 Plaintiff is asking that the USOC do the equivalent of what
the defendants in each of its insurance cases had already done: make the same benefits available
to all of the elite amateur athletes for which Congress has given it responsibility.
The USOC also argues that it is only required to provide “meaningful access” to its
benefits and that it has done so. (See Def. MSJ at 22 (citing Alexander v. Choate, 469 U.S. 287,
301 (1985).)) It is not clear what the USOC means by this. If the USOC is referring to its
“Olympic Programming,” the USOC concedes that it provides no access whatsoever --
meaningful or otherwise -- to the four programs at issue in Plaintiff’s MPSA.15 If, instead, the
USOC is suggesting that, by providing support to a single elite disabled athlete who qualified for
the Olympics (see Def. MSJ at 17), it has provided meaningful access to elite disabled athletes in
14 See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1116 (9th Cir. 2000) (the defendant “gave [the plaintiff] the same opportunity that it gave all the rest of its employees”); McNeil v. Time Ins. Co., 205 F.3d 179, 188 (5th Cir. 2000) (defendant “offered the policy to [the plaintiff] on the same terms as it offered the policy to other members of the association.”), cert. denied 531 U.S. 1191 (2001); Kimber v. Thiokol Corp., 196 F.3d 1092,1101 (10th Cir. 1999) (“Every [Thiokol] employee had the opportunity to join the same plan with the same schedule of coverage, meaning that every [Thiokol] employee received equal treatment.”); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (“Mutual of Omaha does not refuse to sell insurance policies to . . . persons [with the plaintiff’s disability].”), cert. denied 528 U.S. 1106 (2000); Ford v. Schering-Plough Corp., 145 F.3d 601, 608 (3d Cir. 1998) (“Every Schering employee had the opportunity to join the same plan with the same schedule of coverage”), cert. denied 525 U.S. 1093 (1999).
15 See Stipulations ¶¶ 8-14. If the USOC is arguing that other, more complex methods of support provide meaningful access for Paralympians, further discovery will be required to address those methods. (See Second Robertson Decl. ¶¶ 5-9.)
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general, this argument has been recently been explicitly rejected. See Lovell v. Chandler, 303 F.3d 1093, 2002 WL 2022140, at *10 (9th Cir. Sept. 5, 2002) (Second Robertson Decl. Ex. 3) (holding that “appropriate treatment of some disabled persons does not permit [the defendant] to discriminate against other disabled people under any definition of ‘meaningful access.’”)
D. Disparate Funding and Unequal Benefits That Result from the Explicit Exclusion of Paralympic Athletes Violate the ADA and Section 504.
Defendant essentially argues that the Olympics and the Paralympics are two separate programs and that, because of this, it is free to support one and not the other. (Def. MSJ at 23.) Defendant relies primarily on the case of John Does 1-5 v. Chandler, which held that the state of Hawaii could place a durational limit on a program providing benefits to needy persons with disabilities, despite the fact that a program providing benefits to needy families with dependent children was not so limited. 83 F.3d 1150, 1155 (9th Cir. 1996). This decision was based in part on the court’s holding that the programs were separate and should be analyzed separately, rather than as part of a unitary general assistance program. Id. This alone makes the case inapposite, as the benefits provided to Olympic athletes are not properly analyzed as a separate program from the benefits provided to Paralympic athletes.
Assuming for the moment that it were appropriate to analyze the benefits that the USOC provides to Olympic athletes as a separate program, the present case differs from Does 1-5 in one very central respect: the favored program in Does 1-5 -- the one for needy families with dependant children -- was in fact open to all. That is, the category “families with dependent children” is in no way tantamount to or a proxy for “non-disabled families,” and the criterion of
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having dependent children does not screen out or tend to screen out individuals with disabilities. The plaintiffs in Does 1-5 made no such argument and it is simply common sense that many families with dependent children will have one or more members who have disabilities. This was essential to the court’s approval of the differing durational limitations. Id. at 1155 (holding that “a program would not violate the ADA as long as disabled people with children were not excluded from full participation in the program.”) In contrast, the two programs the USOC asks this Court to analyze separately -- and to permit the USOC to treat differently -- are almost perfectly aligned with the classification protected by the ADA. It would be as if Hawaii offered one benefit program for “families all of whose members can walk” (which had no durational limit) and a separate benefit for “families one or more of whose members have a mobility impairment” (which was limited to one year).
Plaintiff also takes issue with Defendant’s premise that it is appropriate to analyze the Olympics and Paralympics as separate programs for purposes of permitting more favorable treatment of the former. Separate analysis was only possible in Does 1-5 because “Hawaii [was] not required to have a [general assistance] program at all,” and by law could have had “a benefit program aimed only at families with dependent children.” Id. at 1155. In contrast, Congress has mandated that the USOC administer both the Olympics and the Paralympics; it does not have an option of administering neither or administering only the Olympics.
The approach taken by the court in Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994), is more on point. The defendant city originally funded a number of recreational programs but ultimately cut all of the programs
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designed specifically for individuals with disabilities. The court held that this constituted illegal
discrimination because “elimination of the [those] programs has the effect of denying persons
with disabilities the benefits of the City’s recreational programs,” despite the fact that “none of
the City’s recreational programs [was] closed to individuals with disabilities.” Id.16 The court’s
analysis of whether city residents with disabilities were otherwise qualified for the city’s
recreational programs makes clear that it is unjust to focus the inquiry too narrowly:
[I]t may be the case that there are wheelchair-bound children who cannot meet the “essential requirements” for a soccer team because they cannot run or cannot kick a ball. However, such an analysis would be persuasive only if the full and entire extent of the City’s recreational program was one soccer team. An “essential eligibility requirement” of a soccer team may be the ability to run and kick, but the only “essential eligibility requirement” of the City’s recreational program (which is the sum of a variety of individual recreational, social, and educational activities and programs) is the request for the benefits of such a program.
Id. at 990 (emphasis in original; citations omitted). Likewise, the “full and entire extent” of the
USOC’s program is not the Olympics; it is “the sum of a variety of individual” programs --
including the Olympics, the Paralympics and the Pan American games -- for which Congress
gave the USOC responsibility. See, e.g., 36 U.S.C. § 220503.
Defendant concludes with a discussion of its responsibilities under the ASA. To the
extent it is arguing that the ASA does not prohibit discrimination, it is irrelevant because
Plaintiff is not suing under the ASA. To the extent it is arguing that the ASA gives it carte
16 Defendant asserts that this case stands for the proposition that “disparate funding between different programs does not violate [the] ADA.” (Def. MSJ at 24.) This is inaccurate. The Concerned Parents court notes that a showing of disparate funding will not per se require a finding of discrimination, but emphasizes that the ADA “require[s] that any benefits provided to non-disabled persons must be equally made available for disabled persons.” Id. at 992 & n.14.
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blanche to discriminate, it is incorrect. The USOC asserts that it “has complete discretion with respect to resource allocation and programmatic decisions” and that a decision requiring equivalent programming “would be an intrusion into the USOC’s prerogatives.” (Def. MSJ at 25-26.) Whatever the USOC’s discretion or prerogatives, they must exercised in compliance with federal law. For example, the state of South Dakota attempted to control absentee land ownership by requiring that at least one of the owners of a farm reside on or be actively engaged in the labor and management of the farm, including “both daily or routine substantial physical exertion and administration.” South Dakota Farm Bureau, Inc. v. Hazeltine, 202 F. Supp. 2d 1020, 1024 (D.S.D. 2002). The court held that this constituted illegal disability discrimination: “South Dakota may legislatively place certain restrictions on how property is used. The State may legislatively place certain restrictions on who may use property. The State may not, however, base those restrictions on impermissible categories such as religion, race, gender, and, under the ADA, disability.” Id. at 1041. See also Bay Area, 179 F.3d at 735 (holding, in zoning context, “localities remain free to distinguish between land uses to effectuate the public interest -- they just must refrain from making distinctions based on what Congress has determined to be inappropriate considerations.”); Ellen S. v. Fla. Bd. of Bar Exam’rs, 859 F. Supp. 1489, 1492 (S.D. Fla. 1994) (“[T]he Board [of Bar Examiners] is authorized by state law to investigate an applicant’s character and fitness. However, the Board is not permitted to conduct such investigation in violation of federal law.”); Clark, 880 F. Supp. at 443 (“While the Board’s broad authority to set licensing qualifications is well established, such authority is subject to the requirements of the ADA.”).
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The USOC provides no basis for elevating its discretion and prerogatives above those of states, municipalities and state bar associations. Indeed, the Supreme Court has recently made clear that -- although sovereign immunity protects states from paying money damages under the ADA -- they are subject to suit for injunctive relief to bring them into compliance with that law. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (2001) (holding that the ADA “prescribes standards applicable to the States. Those standards can be enforced . . . by private individuals in actions for injunctive relief under Ex parte Young, [209 U.S. 123 (1908)].”). It is hard to believe that Congress, through the ASA, imbued the USOC with sovereignty greater than that of the States of our Union.
CONCLUSION For the reasons set forth above and in his Memorandum in Support of his Motion for Partial Summary Adjudication, Plaintiff respectfully requests that this Court deny The USOC’s Motion for Summary Judgment on Plaintiff’s Second and Third Claims for Relief and grant his Motion for Partial Summary Adjudication. Respectfully submitted,
FOX & ROBERTSON, P.C.

Darold Killmer Killmer & Lane, LLP 1543 Champa Street, Suite 400 The Odd Fellows Hall Denver, CO 80202 303.571.1000
Dated: October 9, 2002

Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiff
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Certificate of Service
I hereby certify that on October 9, 2002, copies Plaintiffs’ Memorandum in Opposition to The USOC’s Motion For Summary Judgment on Plaintiff’s Second And Third Claims For Relief, and Second Declaration of Amy F. Robertson, were served by first-class mail, postage prepaid, on:
John W. Cook, Esq. Virginia S. Morgan, Esq. Hogan & Hartson L.L.P. 2 N Cascade Ave., Suite 1300 Colorado Springs, CO 80903
Raymond M. Deeny, Esq. N. Dawn Webber, Esq. Sherman & Howard L.L.C. 90 S Cascade Ave., Suite 1500 Colorado Springs, CO 80903
______________________________

 
 464 F.Supp.2d 1072 (2006)
Mark E. SHEPHERD, Plaintiff, v.
UNITED STATES OLYMPIC COMMITTEE, a corporation, Defendant. Scot Hollenbeck Jose Antonio Inguez Jacob Walter Jung Ho Heilveil, and Vie Sports
Marketing, Inc., a Georgia corporation, Plaintiffs, v.
United States Olympic Committee, a federally chartered corporation, and U.S. Paralympics, Inc., f/k/a United States Paralympic Corporation, a Colorado non-profit
corporation, Defendants.
Civil Action Nos. 99-cv-2077-JLK, 03-cv-1364-JLK.
United States District Court, D. Colorado.
November 16, 2006.
107345 *1073 *1074 *1075 Amy Farr Robertson, Timothy Patrick Fox, Fox & Robertson, P.C., Darold W. Killmer, Killmer, Lane & Newman, LLP, Michael Wayne Breeskin, Arc of Denver, Inc., Kevin William Williams, Colorado CrossDisability Coalition, Denver, CO, for Plaintiffs.
Anne Hall Turner, John William Cook, Hogan & Hartson, LLP, Edward John Butler, Nancy Dawn Webber, Raymond Myles Deeny, Sherman & Howard, L.L.C., Colorado Springs, CO, Christopher Todd Handman, Hogan & Hartson, LLP, Washington, DC, for Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' DISPOSITIVE MOTIONS RE ATHLETE CLAIMS
KANE, Senior District Judge.
I. INTRODUCTION
These disability discrimination actions brought by elite Paralympic wheelchair athletes push the margins of federal disability discrimination laws as applied to the United States Olympic Committee (USOC) and Congress' enactment of our system of international amateur athletic competition. Civil Action No. 99-cv-2077-JLK, brought by wheelchair basketball Paralympian Mark Shepherd, challenges the USOC's purported failure to provide him with the services, benefits and financial and other support routinely provided to his Olympic counterparts. Civil Action 03-cv-1364 asserts similar claims on behalf of elite wheelchair racers Scott Hollonbeck, Jose Antonio Iniguez and Jacob Walter Jun Ho Heilveil, as well as claims related to the USOC's marketing of U.S. Paralympic trademarks as they relate to Hollonbeck's marketing company Vie Sports.
According to the Plaintiff wheelchair athletes, the USOC was established by Congress to oversee matters pertaining to the selection, training and participation of elite disabled and non-disabled amateur athletes in international Olympic, Paralympic, and Pan-American competition. Charged with obtaining the best amateur representation possible in both Olympic and Paralympic events, Plaintiffs claim it is discriminatory for the USOC 1076 to provide *1076 them programming, privileges, and financial support inferior to that provided non-disabled athletes under the Olympic program. Plaintiffs claim the USOC also discriminates against elite Paralympic athletes by promoting, marketing and selling (or limiting U.S. Paralympic's ability to promote, market and sell) rights to the Paralympic trademark at a level below the level it promotes, markets and sells rights to the Olympic mark, which has the effect of limiting the funds available for Paralympic programs and limiting the public's awareness of the Paralympics and individual Paralympic athletes. Finally, Plaintiffs claim the statutory governance structure of the USOC discriminates against Paralympic athletes by denying them representation. It

is these "Athlete Claims,"brought under § 504 of the Rehabilitation Act and Title III of the Americans with Disabilities Act, and the parties' cross-motions regarding their viability under the federal anti-disability discrimination laws, that are before me now for consideration.[1]
Given the important and novel issues raised, I set the motions for oral argument. Argument has been completed, and my rulings follow.
A. Statutory Framework.
The ASA.
Congress originally chartered the United States Olympic Association in 1950 to organize and promote the United States' participation in international Olympic competition. The USOA became the USOC in 1954. In 1978, concerned with "`the disorganization and the serious factional disputes that seemed to plague amateur sports in the United States,'" Congress enacted the Ted Stevens Olympic and Amateur Sports Act ("ASA"), P.L. 95-606 (codified at 36 U.S.C. § 371 et seq. (1978)). San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 548-544, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987)(quoting from H.R. Rep. 95-1627 at p. 8)("1978 House Report"). The ASA charged the USOC with responsibility for coordinating amateur athletics for the Olympic and Pan-American Games and for resolving disputes involving national governing bodies of individual sports. See 1978 House Report at 8, 1978 WL 8517 (Leg.Hist.). The duties of developing interest and participation in amateur athletics, as well as determining who may sponsor amateur athletic competition in the United States and what athletes will be sanctioned to compete on behalf of the United States in particular competitions, were left under the ASA to individual amateur sports organizations selected by the USOC as the "national governing bodies" in each sport on the Olympic or Pan-American program. 36 U.S.C. §§ 391 (selection and requirements for selection as "national governing body"), 392 (duties of national governing bodies).
1077 *1077 With respect to the disabled, the original ASA identified as one of the 14 enumerated purposes of the USOC "to encourage and provide assistance to amateur athletic programs and competition for handicapped individuals, including where feasible, the expansion of opportunities for meaningful participation by handicapped individuals in programs of athletic competition for able-bodied individuals." 36 § 374(13).[2] National governing bodies were delegated the specific duty to "encourage and support amateur athletic sports programs for handicapped individuals and the participation of handicapped individuals in amateur athletic activity, including where feasible, the expansion of opportunities for meaningful participation by handicapped individuals in programs of athletic competition for able-bodied individuals." 36 U.S.C. § 392(7). The ASA made no mention of the Paralympic movement or Paralympic Games, and articulated its mission in terms of fostering and developing amateur international competition at the Olympic and Pan-American Games only. See id., § 374, supra n. 2.
In 1998, the ASA was amended to reflect "significant changes"in Olympic and amateur sports at the time, 1078 specifically including the "significant" growth "in size and prestige" of the Paralympics. See S. *1078 Rep.
105-325 at p. 2, 1998 WL 604018 ("1998 Senate Report"). The 1998 version of the ASA, now codified at 36 U.S.C. § 220501 et seq., amended the statement of the USOC's purposes objectives at § 374(3) and (4) to add participation in the "Paralympic Games" (recodified at 36 U.S.C. § 220503(3), (4))[3] and amended § 391 to recognize "paralympic sports organizations" as national governing bodies for sports for which no national governing body had been designated. Id. § 220522(b). See 1998 Senate Rep. at 17.[4]
My overall impression in analyzing this legislative history is that the ASA distinguishes between authority and power the USOC has to oversee the United States' participation in international amateur athletic competition and the authority it has nationally to regulate and govern amateur sports nationally to obtain the best representation in the Olympic/Pan-American and Paralympic Games. Visávis the international community, the USOC "represent[s] the United States as its national Olympic committee in relations with the International Olympic Committee and the Pan-American Sports Organization and as [the United States'] national Paralympic committee in relations with the International Paralympic Committee," "coordinate[s] and develop[s] amateur athletic activity in the United States directly related to international amateur athletic competition,"and "organize[s], finance[s], and control[s] the

representation of the United States in the competitions and events of the Olympic, Paralympic and Pan-American Games." 36 U.S.C. §§ 220505(c)(2), (3). Visàvis individual citizens, however, and while charged generally to "encourage and provide assistance to amateur athletic activities for women" (§ 220503(12)), "minorities" (§ 220503(14)), and "amateur athletes with disabilities" (§ 220503(13)), the USOC effects this purpose under the ASA first by selecting and recognizing "national governing bod[ies]" (or, where necessary because a sport exists only for the disabled, "paralympic sports organizations") for each amateur sport in the Olympic, Pan-American or Paralympic Games (§ 220521 & 22) and then delegating to them the duties of "develop[ing] interest and participation throughout the United States" in that sport (§ 220524(1)), "allow[ing] an amateur athlete to compete 1079 in any [sanctioned] international amateur *1079 athletic competition conducted by any amateur sports organization" (§ 220524(5)), and "encourag[ing] and support[ing] amateur athletic sports programs for individuals with disabilities and the participation of individuals with disabilities in amateur athletic activity." § 220524(7). Thus, while Plaintiffs are not incorrect in claiming the USOC is charged with "obtaining" the best amateur representation both for the Olympic and Paralympic Games, they cannot ignore that it does so through "the appropriate national governing bod[ies]"to which the responsibility for supporting athletic opportunities and participation for all athletes, including the disabled, is delegated. See 36 U.S.C. §§ 22503(4)("through the appropriate national governing body"), 22523-24 (authority and duties of national governing bodies include developing interest and participation in amateur sports they represent and to encourage and support amateur sports programs for individuals with disabilities).
Moreover, it is only those individual governing bodies that have any express duties under the ASA to provide equal or nondiscriminatory participation opportunities within their particular Olympic or Paralympic sport, and even then, only on the non-disability-based factors of race, color, age, religion, sex, or national origin. 36 U.S.C. § 220522(a)(8).[5] The omission of disability as a prohibited discriminatory factor under 36 U.S.C. § 220522(a)(8) is significant. It is precisely because athletes are classified within their sports (or provided disability-specific sports) on the basis of their disabilities that the need for protection on the basis of that disability becomes problematic. Under the ASA, for example, the NWBA may not discriminate on the basis of race, sex or national origin. A prohibition against disability discrimination is omitted, ostensibly because the limits of federal antidiscrimination law are reached simply by the accommodation. No proscription against disability discrimination binds the NWBA because the NWBA's charges are all disabled by definition.
The question, then, becomes whether some other statute or regulatory scheme operates to prohibit the USOC 0907 as the umbrella organization charged with coordinating national governing organizations such as the NWBA and producing, through them, the best American representation at the Olympic, Pan-American and Paralympic Games 0907 from allocating reduced or inferior benefits to athletes training for Paralympic, as opposed to Olympic or Paralympic competition. According to Plaintiffs, the ADA and Rehabilitation Act do so.
ADA/Rehabilitation Act.
The Rehabilitation Act of 1973 and ADA comprise a comprehensive federal mandate to remedy and eliminate discrimination against disabled individuals. Section 504 of the Rehabilitation Act states that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The ADA, enacted in 1990, expanded 1080 liability for disability discrimination. *1080 Title I of the ADA, codified at 42 U.S.C. § 12112, prohibits covered employers from discriminating against individuals on the basis of disability in the workplace regardless of their status as recipients of federal funding; Title II (§ 12132) prohibits public entities from discriminating against individuals or excluding them from participation in, or the benefits of, their services or programs on the basis of disability; and Title III (§ 12182) provides injunctive relief against private entities who discriminate against the disabled in the operation of "places of public accommodation." See PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). It is Title III that provides the basis for Plaintiffs' claims in this case.
Title III provides "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public

accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). A "place of public accommodation" for purposes of Title III is a facility generally open to the public at large, including restaurants, hotels, libraries, stores, theaters, stadiums, zoos, and the like. Id. § 12181 (7). General prohibitions under Title III include denying, on the basis of disability, opportunities to participate in or benefit from the goods, services, privileges or accommodations of the private entity (§ 12182(b)(1)(A)(i)); affording disabled individuals the opportunity to participate in or benefit from such goods or services in a manner "not equal to that afforded to other individuals" (§ (b)(1)(A)(ii)); or providing disabled individuals with a good, service, facility, privilege, or accommodation "separate from" that afforded other individuals unless necessary to provide the individual a benefit "as effective" as that provided to others. (§ (b)(1)(A)(iii)). It is also unlawful under Title III to impose or apply eligibility criteria for use of a public accommodation that screen out or tend to screen out the disabled from fully and equally enjoying any goods, services, facilities, privileges, or advantages of that public accommodation (42 U.S.C. § 12182(b)(2)(A)(i)); to fail to modify policies or to take steps necessary to afford the disabled goods, services, facilities, etc. of the accommodation (§ (b)(2)(A)(ii) & (iii)); and failure to remove architectural and communication barriers to ensure that no person with a disability is excluded or denied goods, services, facilities, etc. (§ (b)(2)(A)(iv), (v)).
In their Amended Complaint, Plaintiffs assert three different theories of discrimination under Title III:(1) discrimination in the denial of participation in Olympic Programming in violation of § 12182(b)(1)(A)(i); (2) discrimination in the provision of an unequal participation opportunity in violation of § 12182(b)(1)(A)(ii); and (3) discrimination through the use an eligibility criterion for Olympic Programming that screens out the disabled from full and equal enjoyment of the public accommodation in violation of § 12182(b)(2)(A)(i). Am. Compl. ¶¶ 2, 4859. [6] Plaintiffs specifically do not assert a claim based on the provision of a separate benefit under § 12182(b)(1)(A) (iii).
1081 Plaintiffs' Title III claim, then, rests on a set of carefully crafted assumptions. *1081 First, based on the USOC's "control" over administration, housing, training, and competition in the United States, together with its operation of Olympic Training Centers in Colorado Springs (Colorado), Chula Vista (California) and Lake Placid (New York), Plaintiffs claim the USOC "operates places of public accommodation" such that it is a covered entity under Title III. Am. Compl., 03-cv-1364, ¶¶ 24, 26-33. Plaintiffs then characterize programming benefits offered athletes by the USOC and Paralympic Committee as "goods, services, facilities, privileges, advantages, or accommodations" of those "places of public accommodation,"and contend the U.S. Olympic and Paralympic Committees discriminate against them by denying them, on the basis of their disabilities, the "full and equal enjoyment" of those programming benefits.[7]Id. ¶¶ 144-146. That each of these characterizations is strained is something I address in the next section.
For their relief, Plaintiffs seek an injunction requiring Defendants to cease their discrimination and provide them "full and equal enjoyment of their goods, services, facilities, privileges, advantages, and/or accommodations in a fashion to be specified following trial."Am. Compl., 03-cv-1364 at p. 24 "Prayer for Relief."[8] Plaintiffs equivocate as to the specifics of any injunction ultimately issued, acknowledging "equal" allocations would not necessarily be appropriate or required under the ADA, and urging the adoption of an "equitable" or "proportionate" remedial standard along the lines of that available under Title IX and its implementing regulations.[9] Plaintiffs support their reliance on Title IX with a citation to Grove City College v. Bell, 465 U.S. 555, 566, 104 S.Ct. 1211, 79 L.Ed.2d 1082 516 (1984), and in particular *1082 in the Supreme Court's look to the Rehabilitation Act as an interpretive guide for Title IX, on grounds both find their source in the antidiscrimination provisions of Title VI of the Civil Rights Act of 1964. While I appreciate the analogy and agree Title IX's regulatory remedial scheme works well with Plaintiffs' theory of relief in this case, I cannot agree federal courts are authorized to cobble together congressional enactments in this manner. As I will explain more fully below, Plaintiffs' request that I graft a remedial scheme promulgated under a statute banning sex discrimination onto statutes prohibiting disability discrimination, and then infuse both into the statute establishing the federally chartered corporation that oversees the country's amateur athletic system and has exclusive jurisdiction over matters pertaining to international Olympic, Paralympic and Pan-American competition, simply falls outside the scope of federal judicial authority.
Defendants deny Plaintiffs have stated a viable claim for disability discrimination. The crux of the issues raised are set forth in the parties' cross-motions for summary judgment in Shepherd (Doc. Nos. 139 and 140) and in the

USOC's 12(b)(6) Motion to Dismiss in Hollonbeck (Doc 3). The USOC denies the ADA or Rehabilitation Act confer a cause of action for disparate treatment or discrimination in the allocation of resources between Olympic/ Pan-American athletes and Paralympians, maintaining these are separate programs across which differences in allocation are not discriminatory for purposes of federal civil rights legislation because they are not comparable.
B. The Problem of "Fit."
My ultimate and reluctant conclusion is that the USOC is correct and Plaintiffs have no actionable right under the ADA or Rehabilitation Act to enjoin the USOC's actions in allocating lesser privileges and benefits to Paralympic athletes than Olympic athletes. The overarching issue is duty, namely, whether the USOC has a duty to provide Paralympians with opportunities, support and benefits similar, proportionate, or equal to those provided Olympians. The language of the ASA imposes no such duty.[10] The question is whether, directly or by reference to other civil rights laws (such as Title IX, the ADA and Rehabilitation Act) give rise to one.
Subject matter jurisdiction is uncontested and under a liberal reading of the parties' pleadings I find it exists under 28 U.S.C. § 1343 and 1367. While I proceed to analyze Plaintiffs' claims under the ADA and Rehabilitation Acts, I pause to express my overarching concern that, absent an extension of existing law by Congress or a relevant regulatory agency, neither the wrong of which Plaintiffs complain nor the relief they seek "fit" within the rubric of the ADA or Rehabilitation Act.
My initial concern is with the assertion that U.S. Olympic Training Centers are "places of public accommodation" within the contemplation of 42 U.S.C. § 12181(7) and that financial support, insurance, being able to walk in opening ceremonies, receiving prize money, or serving on governing bodies are "goods, services, facilities, privileges, [or] advantages" attendant the operation of those "places" for purposes of the ADA. Olympic Training Centers are venues to which only the most select athletes in the nation have access. They are not recreation centers, stadia or arenas held out for use by the non-disabled public at large. The question of the ADA's applicability, in my view, is a serious threshold question that the parties largely avoid.
1083 *1083 The phrase "public accommodation" is defined for purposes of Title III in terms of 12 extensive categories of facilities leased or operated by private entities "if the operations of such entities affect commerce."The facilities covered are:
(A) an inn, hotel, motel, or other place of lodging . . . ;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D)an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
42 U.S.C. § 12181(7)(emphasis added), applied in Bauer v. Muscular Dystrophy Ass'n, Inc., 268 F.Supp.2d 1281, 1289-1290 (D.Kan.2003), aff'd 427 F.3d 1326 (10thCir.2005). Plaintiffs contend the USOC's training facilities fall within the category of "gymnasium, health spa . . . or other place of exercise or recreation" and therefore constitute a "place of public accommodation" under subsection (L). While the categories listed at § 12181(7) are to be "construed liberally to afford people with disabilities equal access to the wide variety of establishments available to the non-disabled," Bauer at 1290 (citing Martin, 532 U.S. at 666-67, 121 S.Ct. 1879), there is something fundamentally different about the establishments and "places of exercise and recreation" open to the non-disabled public generally 0907 which appear to be what the category at § 12181(7)(L) describe 0907 and the United States' four Olympic Training Centers.
Unlike the public and private golf courses operated or "leased" by the PGA in Martin 0907 to which all paying customers have access regardless of ability 0907 the training facilities operated by the USOC are accessible only to those already selected by the national governing bodies to the Olympic, Pan-American or Paralympic teams in their individual sports and identified as elite, world-class athletes. C.f. Martin, 532 U.S. at 677-78, 121 S.Ct. 1879 (among the "privileges" offered members of the general public who pay to play on PGA operated golf courses is the privilege of vying to qualify for and play in the PGA Tour); Akiyama v. United States Judo Inc., 181 F.Supp.2d 1179, 1183 (W.D.Wa.2002)(applying Martin and holding that the Civil Rights Act's prohibition against discrimination on basis of religion applied to amateur judo competition where members of general public were welcome to test their skills and talents in preliminary tournaments designed to identify the best competitors). Absent any allegation that the privileges and benefits afforded athletes at the U.S. Olympic Training Centers are 1084 available to members of the general public vying for a berth on the U.S. *1084 Olympic or Paralympic team, it is difficult to say that Martin applies. Does the ADA mandate "full and equal enjoyment" of world-class training facilities to which only the fewest among us have access, disabled or non-disabled? At best, the Supreme Court in Martin left unaddressed the question raised in the instant case, namely, whether "places of public accommodation" to which the non-disabled do not have general access fall within the purview of Title III.
Moreover, the benefits Plaintiffs seek relate less to the USOC's physical facilities than to the teams they put forth for international competition. This, too, stretches the "fit" between the discrimination alleged and the jurisdictional basis of Plaintiffs claims under the ADA. In Elitt v. U.S.A. Hockey, 922 F.Supp. 217, 223 (E.D.Mo.1996), for example, the district court determined it lacked jurisdiction over a cognitively disabled child's Title III claim against U.S. amateur hockey organization because plaintiff was challenging the "denial of participation in the youth hockey league instead of denial of access to a place of accommodation, i.e. the ice rink." Id. (youth hockey league is not a "place of public accommodation" for purposes of Subchapter III of the ADA). Only because Plaintiffs in the instant case challenge the denial of their full and equal enjoyment of the USOC's physical facilities (in their relegation to third priority for their use) do they survive scrutiny under this threshold jurisdictional requirement.
The problem of "fit" is further underscored by a look at the selective comparisons on which Plaintiffs rely. Plaintiffs allege discrimination in their treatment as disabled individuals by the USOC as Paralympians compared to the USOC's treatment of "non-disabled" Olympic (and Pan-American) athletes. The distinction is muddled by the fact that disabled athletes are not per se disqualified from participation in the Olympics or Pan-American Games.[11] Because "disabled" individuals can and have participated in the Olympics and Pan-American Games, the comparison categories on which Plaintiffs rely are not necessarily the "disabled" and non-disabled as those distinctions are drawn under the ADA, but Olympic and Paralympic athletes.
Finally, I question the viability of Plaintiffs' theory of disability-based "discrimination" as conflating Olympic benefits offered or not offered to Paralympians with the benefits of access or equal enjoyment of public accommodations by the disabled. Because this conflation is ultimately what dooms Plaintiffs' claims under an ADA analysis, the question is largely academic in this prefatory context. Wheelchair athletes are obviously treated differently (i.e. "discriminated" against) on the basis of their disability in their relegation to the Paralympic

wheelchair basketball event as opposed to the Olympic basketball event. This difference in treatment or access, however, which is obviously based on and defined solely by the player's disability, is not the "discrimination" Plaintiffs seek to call out. Rather, Plaintiffs challenge the lesser or inferior quality of the benefits allocated the 1085 Paralympic wheelchair basketball athletes by the USOC, claiming the different allocation is based on eligibility *1085 criteria (membership on the Olympic team) that screens out or tends to screen out disabled elite athletes. Again, there is an amalgam of standards forming the basis for Plaintiffs' claim. Plaintiffs, for example, take pains to distinguish theirs from a claim that the USOC provides them with an ineffective "separate benefits" under § 12182(b)(1)(A)(iii) because that analysis forces them into a separate-program paradigm that constrains their theory discrimination. Yet the remedy Plaintiffs seek is precisely that they be given benefits and privileges "as effective" or "equivalent to" those provided Olympians. Is a lack of parity or inequality between Paralympic and Olympic programming actionable except as between "separate" programs? Given the significantly smaller population (the disabled) from which Paralympians are drawn, the Paralympic Games are smaller in scale with fewer participants than the Olympics and Pan-American Games. Policies directing a lesser allocation of resources between the Olympians and Paralympians may simply reflect that fact wholly independently of any disability-based discrimination.[12] Plaintiffs concede this point, but again invoke Title IX and its implementing regulations to urge an application of the ADA that would compel the USOC's to comply with its mandated purpose to develop and increase amateur athletic opportunities for disabled athletes, not merely to reflect the status quo.
Plaintiffs' goals, noble and inspiring, extend beyond the reach of the courts to find and enforce under the ADA or the Rehabilitation Act. The Title IX analogy is apt only to the extent it suggests new legislation or the amendment of the USOC's federal charter pursuant to which a regulatory scheme for the equitable remediation of discriminatory allocations between disabled and non-disabled representatives on the United States' elite international athletic teams. Title IX does not infuse the ADA with a remedial scheme that then infuses the ASA with a cause of action for the "discrimination" alleged in this case. Title III of the ADA entitles disabled individuals with the right to seek to enjoin private entities from providing unequal or ineffective opportunities to enjoy or participate in accommodations made available to the public generally. The USOC's Paralympic program, with its attendant differences in perks and privileges compared to the USOC's Olympic program, exists to provide disabled individuals with participation opportunities fundamentally premised on and defined by the disabilities Plaintiffs argue cannot lawfully form the basis for separate treatment. There is an unavoidable non sequitur to the assertion.
In short, I am troubled that Plaintiffs' theory of relief fundamentally overreaches, looking to the courts and federal antidiscrimination law to remedy inequities in the quality of the accommodation afforded certain disabled elite athletes to compete internationally in amateur athletics 0907 accommodations that are defined exclusively by those athletes' inability to compete without accommodation 0907 that are not enjoyed by the non-disabled public at large 1086 and which exist solely as a reflection of political will (or lack thereof) within the *1086 USOC and/or the legislative and executive branches of government directing its charter.
Do I decry a culture that relegates Paralympians to second class status in the quantity and quality of benefits and support they receive from the USOC? Emphatically yes. I conclude, however, that the ADA and Rehabilitation Act are aimed at the baser stuff of discrimination, such as the denial generally of a disabled person's right to participate fully and equally in public life, including places offering sports and recreation to the general public. The ADA and Rehabilitation Act simply do not apply to the wrongs alleged by Plaintiffs.
In my view, the inequities and injustices Plaintiffs describe are ultimately for the legislative or executive,[13] and not judicial, branches of government to acknowledge and rectify. It appears, however, that for purposes of the instant Motions Defendants agree the ADA and Rehabilitation Act apply to the USOC and the U.S. Paralympic Committee and reach their programming benefits and decisions. For purposes of appeal and in order fully to develop the record, I proceed to address Defendants' Motions directed to the merits of Plaintiffs' claims.
II. MERITS.
In its effort to train and obtain the best United States athletes for the Olympic Games, the USOC offers Olympic athletes benefits and incentives. This Olympic "programming" includes providing $25,000,$10,000, and $2,500,

respectively, for each gold, silver, and bronze medal an athlete wins at the Olympic Games. (Am. Compl., 03cv-1364, ¶ 52.). Olympic programming also includes, but is not limited to, providing Olympic athletes first priority in using USOC training facilities (¶ 54) and making Basic Grants, Tuition Assistance Grants, and Elite Athlete Health Insurance available to Olympic athletes. Id. ¶¶ 5557.
Olympic programming is not offered to Paralympic athletes. Rather, Paralympic athletes receive third priority in using USOC training facilities, id. at ¶ 54, and the Paralympic medal-incentive is ten percent of that provided to Olympic athletes. Id. ¶ 53 ($2,500, $1,500, and $1,000, respectively, for each gold, silver, or bronze medal). Moreover, the USOC does not make Basic Grants, Tuition Assistance Grants, or Elite Athlete Health Insurance available to Paralympic athletes. Id. at ¶¶ 5557, 59. Plaintiffs assert the USOC's original and amended Constitutions discriminate against Paralympic athletes, first by denying them participation on the Athlete Advisory Committee all together, and now by limiting their representation to two members. Id. ¶ 68-69.
Plaintiffs Scott Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil (collectively Athlete Plaintiffs), are all current or former Paralympic athletes. (Am. Compl.¶¶ 35, 39, 42-43, 45-47.) They assert the USOC's system of distributing benefits discriminates against them on the basis of their disabilities. Id. at ¶ 48. As a result of being denied Olympic programming, Athlete Plaintiffs assert they have incurred significant personal expense 1087 that *1087 diminishes their ability to train and their opportunity to compete on behalf of the United States as Paralympians. See id. at ¶ 60. In addition, Plaintiff Hollenbeck states he was discriminated against during the 1992, 1996 and 2000 Olympic Games by being denied certain intangible benefits of participation, including medal compensation and marching in the opening ceremonies. Id. ¶¶ 61-67. As set forth above, Defendants move to dismiss.
A. Preemption.
Defendants contend Plaintiffs' ADA and Rehabilitation Act claims are "actually challenges to the method and reasoning by which the USOC decides to allocate its limited resources to numerous different athlete classes under its jurisdiction" and therefore within the USOC's exclusive jurisdiction 36 U.S.C. § 220503(3). See Defs.' Mot. Dismiss, 03-cv-1364, at 6. In support of this argument, Defendants cite several cases in which courts have held no private right of action exists under the ASA to challenge matters left exclusively to the USOC or the national governing bodies of individual amateur sports. Id. at 5 (citing Martinez v. USOC, 802 F.2d 1275 (10th Cir.1986)(holding Congress did not intend for USOC to be liable in tort for wrongful death of boxer injured during events not fully controlled by USOC); Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir.1985)(no private cause of action to challenge governing body's determination regarding loss of amateur status); Michels v. USOC, 741 F.2d 155 (7th Cir. 1984)(weight lifter had no cause of action under ASA to challenge suspension for positive drug test); DeFrantz v. USOC, 492 F.Supp. 1181 (D.D.C.1980)(1978 ASA changed USOC's charter but did not alter USOC's exclusive authority to decide not to send an American team to 1980 Olympics), aff'd, 701 F.2d 221 (D.C.Cir.1980); Walton-Floyd v. USOC, 965 S.W.2d 35 (Tex.Ct.App.1998)(no private cause of action under ASA in tort for breaching duty of care in connection with drug testing hotline); Dolan v. U.S. Equestrian Team, Inc., 257 N.J.Super. 314, 608 A.2d 434 (1992)(USOC has exclusive jurisdiction over athlete eligibility determinations and no private cause of action is recognized under ASA to challenge nonselection for U.S. equestrian team)).
Athlete Plaintiffs agree with Defendants that the ASA bars private rights of action brought under the Act (Pls.' Opp'n at 18), but reject any characterization of their claims as "pertaining" exclusively to the United States' participation in the Olympic, Paralympic and Pan-American Games. Plaintiffs contend the duty to allocate benefits to Paralympians in a nondiscriminatory manner arises not from the ASA, but from the ADA and Rehabilitation Act, and requires them to effect their corporate mandate in a way that does not discriminate on the basis of disability. Id. at 23.
Plaintiffs support their argument with several cases in which courts have permitted plaintiffs to proceed with a variety of claims in spite of the defendants being governed by the ASA. Id. at 20-21 (citing Slaney v. Int'l Amateur Athletic Fed'n, 244 F.3d 580 (7th Cir.2001))(RICO and conspiracy allegations brought by athlete against USOC in blood doping case not preempted, but failed under 12(b)(6) standard to state claim); Akiyama, 181 F.Supp.2d at 1183 (holding title II of Civil Rights Act of 1964 applied to prevent discrimination on basis of religion at judo

competition); Sternberg v. U.S.A. Nat'l Karate-Do Fed'n, Inc., 123 F.Supp.2d 659 (E.D.N.Y.2000)(female athlete stated valid Title IX claim against karate national governing body based on organization's decision to withdraw women's karate team from international competition).[14]
1088 *1088 To this list we may add Lee v. United States Taekwondo Union, 331 F.Supp.2d 1252 (D.Haw.2004), in which the district court rejected the USOC's contention that the ASA preempted federal civil rights laws and allowed former U.S. Olympic coach to bring a race discrimination claim against the USOC and the national governing body for the sport of taekwondo under 42 U.S.C. § 1981. The district court applied the reasoning in Oldfield, Slaney and Michels to distinguish between private claims challenging eligibility or similar matters "pertaining to participation" regarding which the USOC and its national governing bodies have exclusive jurisdiction under 36 U.S.C. § 220503(3) and claims that invoke rights independently of this grant of jurisdiction. Thus, to the extent plaintiff Lee was seeking a declaration of eligibility and subsequent reinstatement as coach of the U.S. Olympic Taekwondo Team through his state tort and contract claims, the court concluded such claims were preempted. Lee, 331 F.Supp.2d at 1257. To the extent Lee was invoking protections afforded him under federal civil rights laws independently of and in addition rights governed exclusively by the ASA, however, his claims were not preempted. Id. at 1260-61 ("when two federal statutes may be reconciled, the court must give effect to both"), (citing Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981)). As long as the remedy sought does not require it to enter the realm of the USOC's exclusive jurisdiction, "the [ASA] does not nullify or supersede other federal laws that provide private rights of action to ensure freedom from discrimination." Id. at 1260 (because discrimination on the basis of race in violation of § 1981 did not pertain to the United States' participation in the Olympic Games, Lee could proceed with his § 1981 claim).
The instant case presents an exceedingly close call under Lee and related authorities because the matters of which Plaintiffs complain 0907 priority usage of training facilities, training grants and insurance benefits, the USOC's Constitutional governance structure, medal incentives and decisions as to who walks or does not walk in Olympic opening ceremonies 0907 indeed sound like "matters pertaining to" the United States' participation in the Olympic or Paralympic Games within the exclusive jurisdiction of the USOC under 36 U.S.C. § 220503(3). Given the predominate mandates of the ADA to call out and remedy disability-based discrimination, as well as the 1089 inexactness of the injunctive relief sought,[15] I cannot categorically state *1089 that Plaintiffs' Athlete Claims fall within the exclusive realm of "matters pertaining to the participation of the United States in the . . . Paralympic Games."
I proceed, then, to analyze Plaintiffs' allegations of discrimination under the ADA and Rehabilitation Act under a 12(b)(6) standard.
B. Standard of Review
The purpose of a Fed.R.Civ.P. 12(b)(6) motion to dismiss is to test the sufficiency of a complaint. U.S. Olympic Comm. v. Am. Media, Inc., 156 F.Supp.2d. 1200, 1204 (D.Colo.2001). A complaint must put the defendant on notice of the plaintiff's claim and the general facts upon which it is based. Brunetti v. Rubin, 999 F.Supp. 1408, 1409-40 (D.Colo.1998)(incorporating Fed.R.Civ.P. 8(a)). A plaintiff need not precisely state the elements of each claim, but he must provide direct or inferential allegations that would support recovery under some legal theory. Id. There is a strong presumption against granting a motion to dismiss for failure to state a claim, Maez v. Mtn. States Tel. & Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995)(referring to the Federal Rules of Civil Procedure), and unless it is clear "the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,"such motions must be denied. American Media, 156 F.Supp.2d. at 1204 (internal citations and quotations omitted). Accordingly, well-pleaded allegations in the complaint must be treated as true, and any reasonable inferences arising from them must be construed in the plaintiff's favor. Id.
C. Conclusions of Law.
I have already expressed my doubts regarding the viability of Plaintiffs' ADA claim based on the disconnection between the goods and services being denied and Plaintiffs rights to them as "public accommodations,"as well as

my concerns that at least some of Plaintiffs' complaints fall outside the scope of federal antidiscrimination laws because they pertain to matters over which the USOC has exclusive jurisdiction. Nevertheless, and in order to develop the record fully, I proceed to analyze Plaintiffs' Rehabilitation Act and ADA claims on their merits.
The ADA and Rehabilitation Act are interrelated Congressional mandates designed to remedy discrimination against disabled individuals. See McGeshick v. Principi, 357 F.3d 1146, 1149 (10th Cir. 2004). The Rehabilitation Act provides the baseline level of protection from disability discrimination when the ADA must be construed. See id. at § 12201(a)("Except as otherwise provided . . . nothing in this chapter shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973. . . . ").
Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." 29 U.S.C.A. § 794(a)(2006).[16] The prima facie elements of claim under section 504 of the Rehabilitation Act are straightforward, requiring a plaintiff to show (1) he is disabled; (2) he is otherwise qualified for participation in the 1090 program; (3) the program discriminates against the plaintiff; and (4) the program receives federal financial *1090 assistance. McGeshick, 357 F.3d at 1150 (citing cases).
On the other hand, the prima facie elements of an ADA claim depend on a number of factors, including the alleged theory of discrimination, see, e.g., Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir.2004) (prima facie elements in Title III failure to accommodate case); Hubbard v. Twin Oaks Health and Rehab. Ctr., 408 F.Supp.2d 923, 929 (E.D.Cal.2004)(prima facie elements in Title III failure to remove barrier case); In re Baby K, 832 F.Supp. 1022, 1028-29 (E.D.Va.1993)(prima facie elements in Title III denial of participation case), and the factual circumstances of the case. See, e.g., Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir.2006) (plaintiff must show he was qualified academically where failure to accommodate alleged in post-secondary education context); cf.Rakity v. Dillon Companies, Inc., 302 F.3d 1152, 1164 (10th Cir.2002)(applying McDonnell Douglas burden shifting framework in Title I case "as modified to relate to differing factual situations"). As previously set forth, Plaintiffs in the instant case assert three different theories of discrimination under §§ 12182 (b)(1)(A)(i) (denial of participation), (ii)(unequal participation opportunity) and (b)(2)(A)(i) (discriminatory eligibility criteria tending to screen them from full and equal enjoyment). Accordingly, to state a prima facie case of discrimination under the ADA and Rehabilitation Act, Plaintiffs must demonstrate (1) they are disabled; (2) Defendants operate places of public accommodation; (3) Plaintiffs are qualified for participation in the program or program benefits of the public accommodation; and (4) the USOC discriminated against Plaintiffs by denying them the opportunity to participate in the program, by providing them a participation opportunity unequal to that afforded non-disabled individuals, and/or by using eligibility criteria for program benefits that screens out or tends to screen out the disabled from fully enjoying the program.
I have already determined the USOC does not operate a "place of public accommodation" or, if it does, that the discrimination alleged by Plaintiffs relates not to their rights of access to that accommodation or, with the exception of priority access to gymnasia or other physical training facilities of the U.S. Olympic Training Centers, to the benefits thereof, but to their right to participate in and receive full and equal enjoyment of membership on a USOC-sponsored team. Looking beyond those "problems of fit," however, the question arises as to whether, in a Title III case premised on allegations of disparate treatment between categories of disabled and non-disabled individuals in the benefits of an athletic program, a Title III plaintiff must, like his counterparts proceeding under the Rehabilitation Act and Titles I and II of the ADA,[17] demonstrate that he is both disabled and "otherwise qualified" to receive the benefits that form the basis of his claim of discrimination. Under the circumstances of this case, I agree with Defendants that he does.
The ADA addresses three broad categories of discrimination: disparate treatment, disparate impact, and a failure 1091 to provide a reasonable accommodation. E.g. Davidson v. America Online, Inc., 337 *1091 F.3d 1179, 1188-89
(10th Cir.2003) (making the assertion in a Title I employment case). Plaintiffs' allegations in this case are of classic disparate treatment, i e., that they, as Paralympians, receive reduced benefits and fewer privileges than their non-disabled counterparts purely on the basis of their disability. It is clear that in disparate treatment cases, an individual must be otherwise qualified to receive the benefit he asserts it is discriminatory to deny him.

The logical explanation for the omission of an "otherwise qualified" requirement under Title III is that, "in most circumstances, no qualifications are required to enjoy a public accommodation as secured by Title III." Mershon, 442 F.3d at 1076. Where, by contrast, the nature of a "public" accommodation is such that it provides programs only to qualified members of the general public, a disabled individual must show he is also qualified as an element of his prima facie case. See Martin, 532 U.S. at 680, 121 S.Ct. 1879 (significant in Title III case that, "[i]n consideration of the entry fee, any golfer with the requisite letters of recommendation acquires the opportunity to qualify for and compete in petitioner's tours"). See also Bowers, 118 F.Supp.2d at 517, n. 18 ("[w]hile words `otherwise qualified' or `qualified individual' do not appear in the language of Title III, Title II analysis can be applicable to Title III claims."); cf. Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 154 (1st Cir.1998)(finding little significance in lack of "qualified" language in Title III). This requirement is consistent with the law construing the Rehabilitation Act, and I conclude Plaintiffs must prove they were qualified individuals with a disability whose disparate treatment can only be explained as discrimination on the basis of disability.
A plaintiff is "otherwise qualified" under the Rehab Act if he "is able to meet all of a program's requirements in spite of his [disability]." Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). To satisfy the prima facie qualification element under both the ADA and Rehab Act, Athlete Plaintiffs must show that with or without reasonable modification to USOC rules, policies, or practices, they meet the essential eligibility requirements for Olympic benefits.
Appropriate Comparison Group 0907 Unified or Separate Program.
Plaintiffs contend the necessary eligibility requirement for Olympic benefits is not membership on the U.S. Olympic team, but membership on any of the three teams under the USOC's purview under its federally mandated charter (i.e., the U.S. Olympic, Pan-American or Paralympic Teams). In other words, because the USOC oversees a single, comprehensive program for that group of elite, world-class athletes who participate as representatives of the United States in the Olympic, Paralympic or Pan-American Games, Plaintiffs contend the USOC cannot discriminate in its allocation of benefits to that group on the basis of disability alone.
As previously set forth, Plaintiffs' characterization of the USOC as a single selection and training organization charged with allocating programming and benefits in a nondiscriminatory manner across all Olympic, Paralympic and Pan-American athletes is belied by the organizational structure established by the ASA, the USOC's federal charter and the legislative history evincing Congress's intent in enacting both. It suggests 0907 inaccurately 0907 that Congress's 1998 amendments to the ASA did more than formalize recognition of the existing Paralympic movement and add the Paralympics to the list of international competitions to which the United States will send 1092 representatives. It also *1092 ignores the separate nature of the participation opportunity that forms the historical essence of the Paralympic experience, and glosses over the distinction between equality of access, in terms of participation opportunity, and the quality of that access once provided. Here, the participation opportunity for wheelchair athletes is clearly provided through a separate (Paralympic) program.
The cases Plaintiffs cite to urge a comparison with the USOC's "unified" Olympic/Paralympic/Pan-American "program" do not compel a contrary conclusion because they turn on a denial of access to the unified "program," which is not at issue in this case.[18]Dreher Park, for example, involved the elimination, entirely, of all specialized recreational programs for the disabled and the district court's ruling that plaintiffs did not have to establish eligibility to participate in a specific recreational program to challenge that elimination. The court used wheelchair soccer as an example, concluding wheelchair-bound youth did not have to establish they were otherwise able "run" or "kick" to challenge the program's elimination, because the relevant program benefits they were seeking were not simply participation on a soccer team, but the benefits of the City's overall recreational/athletic program.
As a paradigmatic scenario, it may be the case that there are wheelchair-bound children who cannot meet the `essential requirements' for a soccer team because they cannot run or cannot kick a ball. However, such an analysis would be persuasive only if the full and entire extent of the City's recreational program was one soccer team. An "essential eligibility requirement" of a soccer team may be the ability to run and kick, but the only "essential eligibility requirement" of the City's

recreational program (which is the sum of a variety of individual recreational, social, and educational activities and programs) is the request for the benefits of such a program. (Citations omitted.) Therefore, the only `essential eligibility requirement' that Plaintiffs must meet is to request the benefits of a recreational program.
Dreher Park, 846 F.Supp. at 990 (emphasis original). Here, the USOC has not eliminated its Paralympic Team (and doing so would violate its federal charter) and the benefits Plaintiffs seek are not of access to the Olympic experience or participation in elite athletics, but of the quality of their experience as Paralympians compared to the experience of non-disabled Olympians. Dreher Park does not get Plaintiffs there. By refusing to couch their 1093 claims in terms *1093 of a comparison of separate benefits under 42 U.S.C. § 12182(b)(1)(A)(iii), there is simply no basis in the ASA, ADA or relevant case law to avoid the eligibility requirement of Olympic Team membership to claim discrimination in the denial of Olympic Team benefits.[19]
Next, Plaintiffs argue the criterion used to determine eligibility for Olympic programming (i.e., being selected to the Olympic, as opposed to Paralympic, Team) is invalid because it is facially discriminatory. Resp. at pp. 6-9 (arguing USOC eligibility criteria is invalid because it is a proxy for facial discrimination and is analogous to the inequities Title IX was designed to remedy). I find the argument somewhat facile and the analogy to Title IX inapt. Where factors such as disability or sex render individuals unable to participate without a separate program or participation opportunity, the question becomes one of the effectiveness or equality of the separate benefit and not that the creation of the separate participation opportunity itself is tantamount to unlawful discrimination.[20] Title III is grounded in this distinction, defining discrimination as the imposition of eligibility criteria that tend to screen out the disabled "unless . . . necessary for the provision of the goods, services, facilities . . . or accommodations being offered"; the failure to modify policies "unless . . . the entity can demonstrate that making modifications would fundamentally alter the nature of such goods, service . . ."; or failing to take steps to ensure the disabled are not segregated "unless . . . taking such steps would fundamentally alter the nature of the good, service . . .". See 42 U.S.C. § 12182(b)(2)(i)(iii). See H.R.Rep. No. 101-485, pt. 1, at 58 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 481 (providing illustrative examples such as a rule that prohibits the deaf or blind from entering a store or requiring customers to present a driver's license in order to purchase merchandise, because that would screen out persons with disabilities who do not drive). Because Plaintiffs do not challenge Paralympic programming under a separate benefit analysis, their claims hinge on the assertion that no valid basis other than invidious discrimination justifies the "eligibility criteria" of being an Olympian to receive Olympic benefits.
The Necessary "Qualification" of being an Olympian does not Constitute Discrimination under 42 U.S.C. § 1282 (b)(2)(A).
1094 The method for challenging a qualification as discriminatory in violation *1094 of the ADA and Rehab Act is to show that it either screens out or tends to screen out disabled individuals and is unnecessary or nonessential. See 42 U.S.C.A. § 12182(b)(2)(A)(i); 45 C.F.R. § 84.13 (analogous Rehabilitation Act regulation for challenging criteria that screen out or tend to screen out disabled individuals); see also Pottgen v. Missouri State High Sch. Activities Ass'n, 40 F.3d 926, 930 (8th Cir.1994)(using "necessary" and "essential" interchangeably in qualification analysis). Assuming the USOC's eligibility criteria of being an Olympic athlete screens out disabled individuals, the USOC urges it is essential to furthering its purpose of training and obtaining the best Olympic athletes to represent the United States. (Mot. Dismiss at 15.) Plaintiffs respond first by contending a determination of whether the USOC's eligibility criteria is necessary is inappropriate at this stage because they have not indicated the existence of an affirmative defense in the Amended Complaint. (Resp., p. 14.) Alternatively, Athlete Plaintiffs argue the eligibility criteria is unnecessary because the USOC mandate of training and obtaining the best athletes applies equally to Olympians and Paralympians, and therefore "limiting benefits to Olympic athletes is not necessary for the provision of the benefits being offered." Id. Both arguments fail.
First, where "the applicability of [an affirmative] defense [is] clearly indicated and . . . appear[s] on the face of the pleading,"a complaint is subject to dismissal on that basis. 5B C. Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 708-10 (3d ed.2004). Here, it is apparent from the allegations in the Complaint that Athlete Plaintiffs are challenging the eligibility criterion used to deny them Olympic programming 42 U.S.C. § 12192(b)(A) (i), which invites the affirmative defense also stated in that statute that such a criterion is permissible if it is shown to be "necessary" for the provision of the accommodations being offered generally. Id. Accordingly, I turn to

whether the facts as pleaded render the eligibility criterion of being an Olympic Team member "necessary" to the provision of Olympic programming, generally.
In assessing the necessity of the USOC's eligibility criteria for Olympic programming, the "goods, services, facilities, privileges, advantages, or accommodations" that Athlete Plaintiffs were allegedly wrongly denied must be identified. See 42 U.S.C. § 12182(b)(2)(A)(i). Plaintiffs assert the goods, services, facilities, and privileges at issue are the financial and other intangible benefits and training priority given Olympic, as opposed to Paralympic, athletes. (Pls.' Resp. at 15.) Plaintiffs plead no facts tending to demonstrate these benefits are not "necessary" to the maintenance of the Olympic team, and simply rests on the assertion that the eligibility criterion of selection to the Olympic, as opposed to the Paralympic, team in order to receive Olympic benefits is invalid.
It is here that the concern over the characterization of the Olympic Training Centers as "public accommodations" merges with the necessary elements of a claim under the Rehabilitation Act and ADA. Assuming, for the sake of argument, that the ADA requires the USOC to provide anything as a "public accommodation,"it is the opportunity to represent one's country in a recognized amateur sport in one of three categories of sanctioned (Olympic/PanAmerican or Paralympic) competition. See Martin, 532 U.S. at 680, 121 S.Ct. 1879 (the PGA provides an opportunity for any golfer, disabled and non-disabled alike, to vie for the opportunity to qualify for the PGA Tour); Henrietta D. v. Bloomberg, 331 F.3d 261, 274 (2d Cir.2003) (the ADA and Rehabilitation Act viewed as "helping 1095 individuals with disabilities access *1095 public benefits to which both they and those without disabilities are legally entitled") (emphasis added). And unlike the golfer in Martin who could compete on the PGA Tour with accommodation, Plaintiff Paralympians cannot and do not purport to be able to compete in the Olympics with or without accommodation. Instead, they compete through the separate participation opportunity of representing the United States as Paralympians. Once afforded access to the benefits of the so-called "public accommodation" afforded by Congress through the ASA, the right to the nondiscriminatory provision of Olympic benefits stops.
Simply put, it is irrelevant that the USOC chooses to provide Olympic programming only to Olympic athletes as long as the gateway to that program operates in a nondiscriminatory manner. However unfair the fact that the participation opportunity afforded Plaintiffs as Paralympians does not include full Olympic benefits, Plaintiffs are afforded a participation opportunity defined by their disability, the benefits of which are lesser based not an additional layer of discrimination but by operation of eligibility criteria beyond the reach of the ADA and Rehabilitation Act.
In short, Paralympic athletes' expectations for the equitable allocation of benefits between Paralympians and Olympians competing on behalf of the United States under the auspices of the USOC is not a matter which courts, through the ADA, may mandate or enforce. While much to be desired, such a mandate must derive from the legislative branch or appropriate agency of the Executive. As urged by Plaintiffs' counsel at oral argument, Title IX and its implementing regulations may indeed form an apt analogy 0907 not as infusing the ADA with additional remedies to then be grafted onto the ASA 0907 but as a paradigm for appropriate congressional and agency action.
Based on the foregoing, I conclude that Plaintiffs' Athlete Claims, which challenge the USOC's inequitable allocation of resources and benefits to them as Paralympians compared to those afforded Olympians generally, fail to state a claim upon which relief under the ADA or Rehabilitation Act may be granted. I therefore GRANT Defendants' Motion to Dismiss in Hollonbeck, 03-cv-1364, which in turn disposes of the identical issue presented as a Motion for Summary Judgment in Shepherd, 99-cv-2077.
These cases will be set for a status conference within ten days of the date of this Memorandum Opinion and Order to formulate a pretrial plan for Plaintiffs' remaining claims. In anticipation of this conference, the parties are to submit a brief status report setting forth their respective positions regarding the continued viability of Plaintiffs' Vie Sports Marketing-related claims in the wake of my decision.
[1] In addition to the "athlete" claims asserted on behalf of disabled athletes generally in both cases under the Americans with Disabilities Act, there are individual common law claims for damages asserted by Plaintiff Shepherd in 99-2077 and by Plaintiff Vie Sports Marketing in 03-1364. Shepherd, who was employed by the USOC for a period of time during which he also trained as a Paralympic athlete, seeks damages from the USOC

based on the USOC's refusal to allow him to train during work hours which Shepherd claims violated the express written and oral terms of his employment contract. Vic Sports, a sports marketing company formed by Plaintiff Hollenbeck in 2000 to market the Paralympic brand and trademark, asserts separate breach of contract and promissory estoppel claims against the USOC in 99-2077 based on the USOC's alleged failure to support or to allow Vie Sports to sell the rights to the Paralympic mark in the open market. These claims were addressed during oral argument in September 2005 and will proceed separately from any "athlete" claims that survive summary judgment.
[2] Specifically, the 1978 ASA stated the "objects and purposes" of the USOC as follows:
(1) establish national goals for amateur athletic activities and encourage the attainment of those goals;
(2) coordinate and develop amateur athletic activity in the United States directly relating to international amateur athletic competition, so as to foster productive working relationships among sports-related organizations;
(3)exercise exclusive jurisdiction, either directly or through its constituent members or committees, over all matters pertaining to the participation of the United States in the Olympic Games and in the Pan-American Games, including the representation of the United States in such games, and over the organization of the Olympic Games and the Pan-American Games when held in the United States;
(4) obtain for the United States, either directly or by delegation to the appropriate national governing body, the most competent amateur representation possible in each competition and event of the Olympic Games and of the Pan-American Games;
(5) promote and support amateur athletic activities involving the United States and foreign nations;
(6) promote and encourage physical fitness and public participation in amateur athletic activities;
(7) assist organizations and persons concerned with sports in the development of amateur athletic programs for amateur athletes;
(8) provide for the swift resolution of conflicts and disputes involving amateur athletes, national governing bodies, and amateur sports organizations, and protect the opportunity of any amateur athlete, coach, trainer, manager, administrator, or official to participate in amateur athletic competition;
(9) foster the development of amateur athletic facilities for use by amateur athletes and assist in making existing amateur athletic facilities available for use by amateur athletes;
(10) provide and coordinate technical information on physical training, equipment design, coaching, and performance analysis;
(11) encourage and support research, development, and dissemination of information in the areas of sports medicine and sports safety;
(12) encourage and provide assistance to amateur athletic activities for women;
(13) encourage and provide assistance to amateur athletic programs and competition for handicapped individuals, including, where feasible, the expansion of opportunities for meaningful participation by handicapped individuals in programs of athletic competition for able-bodied individuals; and
(14) encourage and provide assistance to amateur athletes of racial and ethnic minorities for the purpose of eliciting the participation of such minorities in amateur athletic activities in which they are under-represented.
36 U.S.C.A. § 374 (1990)(emphasis added).
[3] For example, as amended § 22503(3) and (4) charge the USOC
(3) to exercise exclusive jurisdiction, directly or through constituent members of committees, over 0907

(A) all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-America Games, including representation of the United States in the games; and
(B) the organization of the Olympic Games, the Paralympic Games, and the Pan-American Games when held in the United States;
(4) to obtain for the United States, directly or by delegation to the appropriate national governing body, the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and Pan-American Games. . . .
36 U.S.C. § 22503(3), (4)(emphasis added.) In addition, § 374(13) was changed to replace the term "handicapped individuals" with the more appropriate "disabled amateur athletes." Id. § 22503(13)(object and purpose of USOC includes "to encourage and provide assistance to amateur athletic programs and competition for amateur athletes with disabilities, including, where feasible, the expansion of opportunities for meaningful participation by such amateur athletes in programs of athletic competition for able-bodied amateur athletes.").
36 U.S.C. § 220503(13)(changes in italics).
[4] For example, the National Wheelchair Basketball Association (NWBA) serves as the national governing body for men's, women's and youth wheelchair basketball in the Unite States. See http://www.nwba.org, "Mission Statement."
[5] An amateur sports organization is eligible to be recognized, or to continue to be recognized, as a national governing body only if it
* * * * * *
(8) provides an equal opportunity to amateur athletes . . . to participate in amateur athletic competition, without discrimination on the basis of race, color, religion, sex, age, or national origin . . .
36 U.S.C. § 220522(a). The equal opportunity provisions do not preclude discrimination on the basis of disability, ostensibly because disabled amateur athletes participate on the very basis of their disability.
[6] The theories of discrimination set forth in Title III of the ADA also constitute discrimination under the Rehabilitation Act. Compare 28 C.F.R. § §§ 41.51(b)(1)(i)-(vii) (2006)("General prohibitions against discrimination") with § 84.13 (Rehabilitation Act regulation from which 42 U.S.C. § 12182(b)(2)(A)(i) was derived). See H.R.Rep. No. 101-485, pt. 2, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 388.
[7] For example, Plaintiffs claim they are relegated to lowest priority in terms of using Olympic training facilities, receive few or reduced financial incentives, and are ineligible for tuition grants, the Resident Athlete Program, or insurance. The USOC, according to Plaintiffs, does not even supply Paralympians with uniforms. The result, Plaintiffs contend, is that, they must pay significant training expenses out of their own pockets, impairing their ability to train for Paralympic competition. See Am. Compl., 03-cv-1364 at ¶¶ 48-60. Other complaints are less tangible, including Plaintiff Hollonbeck's allegations that he was discriminated against during exhibition events in the 1992, 1996 and 2000 Olympic Games by being denied benefits such as marching in the opening ceremonies or receiving prize money for winning medals. Id. ¶¶ 61-67. Since Hollonbeck's participation in the 2000 Olympics, Paralympians now receive financial awards for gold, silver and bronze medals, but Plaintiffs contend the practice remains discriminatory because awards are at 1/10th the amount of Olympic medal awards. Id. ¶¶ 51-53.
[8] Plaintiffs also seek a "declaration" that Defendants' discriminatory practices violate the ADA and Rehabilitation Act. Declaratory relief is redundant and therefore unavailable under these circumstances, where it seeks nothing more than a legal determination already before the court on Plaintiffs' civil rights claims. See Saum v. Widnall, 912 F.Supp. 1384, 1394 (D.Colo.1996)(Kane, J.)("declaration" of constitutional violation would be gratuitous reiteration when constitutionality of defendant's actions already before the court)(citing cases).
[9] As acknowledged by Plaintiffs' counsel at oral argument, the precise nature of Plaintiffs' claim for relief is difficult to articulate. See Rep. Tr. (10/4/05) at p. 16, 42, 59 (acknowledging "exact" or equal funding or benefits is

not required under the ADA, and suggesting adoption of "equitable" or "proportionate" remedial standard along the lines of that which Plaintiffs claim is available under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681, and its implementing regulations, which prohibit sex discrimination in the allocation of benefits between men's and women's athletic programs and suggest evolving standards for determining compliance.)
[10] See supra, n. 5 and accompanying text.
[11] The Paralympics provide participation opportunities for elite athletes belonging to six different disability groups: amputee, cerebral palsy, visual impairment, spinal cord injuries, intellectual disability and a group which includes all those that do not fit into the aforementioned groups (les autres). Athletes whose disabilities do not impact their ability to participate in events recognized by the International Olympic Committee (i.e., deaf swimmer Terence Parkin, who won a silver medal in the 2000 Olympics in Sydney) are not required to participate in the Paralympics and are ostensibly not part of Plaintiffs' theory of disability discrimination.
[12] As Defendants argue, the fewer number of participants and internationally fielded teams in the Paralympic Games results in American Paralympians, for example, having significantly greater chances of medaling at the Paralympic Games than American athletes competing in the Olympics. Parity in medal awards, then, would result in U.S. Paralympic athletes receiving far more than their Olympic counterparts. Of course, these fact-based scenarios are germane only to the extent they capture the complexity of the "discrimination" question and illustrate grounds for my unease on the issue of "fit." They are not germane, and I do not consider them, as part of my analysis of Plaintiffs' claims under a Rule 12(b)(6) standard.
[13] The legislative branch might amend the ASA or a relevant agency might promulgate regulations under the ASA to implement directives against discrimination or the fostering of athletic opportunities for disabled amateur athletes or risk losing federal funding. C.f. 34 C.F.R. § 106.41 (regulatory provisions implementing proscription against sex discrimination in education programs receiving federal funding stated in Title IX and requiring the proportionate allocation of athletic opportunities and moneys for college women or lose federal funding). See Roberts v. Colorado State Bd. of Agriculture, 998 F.2d 824, 827-28 (10th Cir.1993)(applying Title IX and its implementing regulations to order state university to reinstate terminated Division I women's softball program).
[14] I note that in addition to allowing plaintiff athlete's Title IX claim to proceed, the district court in Sternberg did, indeed, recognize an implied private right of action under the ASA to seek damages against a the karate national governing body for sex discrimination. Sternberg, 123 F.Supp.2d at 664-666 (applying four factors identified in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) and principles articulated in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) and Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) to conclude Congress's statements in ASA prohibiting sex discrimination and requiring governing bodies to provide "support and encouragement" for participation by women permit "[a] narrow right of action regarding sex discrimination by national governing sports bodies [to] be implied."). Plaintiffs do not rely on this aspect of Sternberg, conceding that in the Tenth Circuit, at least, no private right of action exists to enforce the terms of the ASA. See Martinez, 802 F.2d at 1281 (enactment of 1978 ASA included removing athlete's "bill of rights,"evincing Congress's consideration and rejection of a cause of action for athletes to enforce ASA's provisions).
[15] As previously noted, Plaintiffs request for relief in this case is in the nature of injunctive relief to be determined at trial, the goal of which is to provide Plaintiffs with benefits and incentives which, while not necessarily equal to those given Olympians, will ensure Paralympians their full and equal enjoyment of the Olympic experience.
[16] To the extent Section 504 was modified between the issuance of this Order and the time Shepherd was filed, those modifications are immaterial. Compare 29 U.S.C.A. § 794(a)(2002) with 29 U.S.C.A. § 794(a)(1998).
[17] Compare 29 U.S.C. § 794(a) (Rehabilitation Act, prohibiting discrimination against any "qualified individual with a disability" on the basis of that disability), 42 U.S.C.A. § 12112(a)(Title I, prohibiting employment discrimination against a "qualified individual with a disability") and § 12132 (Title II, public entities shall not discriminate against a "qualified individual with a disability") with § 12182(a)(private entities may not discriminate against any "individual . . . on the basis of disability,"where the term "qualified" does not appear).

[18] Both Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F.Supp. 986 (S.D.Fla.1994) and Rodde v. Bonta, 357 F.3d 988 (9th Cir.2004) involved the elimination of programs or facilities for the disabled. In Dreher Park, the district court held the elimination of specialized recreational programs for disabled children had the effect of denying disabled individuals the benefits of the city's overall recreational program in violation of Title II. The court rejected the city's argument that the elimination could not be deemed discriminatory because many of its non-specialized programs were accessible by the disabled, because the elimination had the effect of denying disabled individuals programming "needed to give equal benefits of recreation to persons with disabilities." 846 F.Supp. at 991-92. Similarly in Rodde, the Ninth Circuit held the shutting down of defendant's only hospitals designed to serve disabled individuals violated Title II because the services designed for the general population, while available to the disabled, "would not adequately serve the unique needs of the disabled who therefore would be effectively denied services that the non-disabled continued to receive." 357 F.3d at 998. The "benefits" denied plaintiffs in these cases were the benefits of access to meaningful programming, not the quality of access afforded (and access, I might add, not challenged as ineffective or unmeaningful).
[19] In this regard I agree with Defendants that Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir.1996) provides the better analogy. In Chandler, the Ninth Circuit ruled the legislature's welfare amendments to provide eligible needy individuals with dependent children benefits for unlimited duration while providing needy disabled individuals benefits for only one year did not violate Title II because disabled individuals' ineligibility for the longer term benefits did not turn on their disabled status. In so holding, the Ninth Circuit rejected appellees' reliance on Dreher Park to argue the proper characterization of the "program" for eligibility purposes was the overall purpose of benefitting the needy. According to the Court, the fact that the non-disabled needy without dependent children were not entitled to funds under the program suggested the proper view was of two discrete forms of benefit providing for two discrete subgroups of the needy population. As in Chandler, the better view of the USOC's purpose in fostering participation and competition in the Olympic/Pan-American and Paralympic Games is oversight over two discrete forms of benefits providing for two discrete subgroups of elite, world-class amateur athletes.
[20] See Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134 (10th Cir.2005)(in prisoner case, disabled prisoner would not have been "otherwise qualified" to receive medical treatment in absence of his alleged disability because his alleged disability was reason why he was seeking medical treatment in the first instance). Accord Chandler, supra, n. 16.
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 MARK E. SHEPHERD, Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE, a corporation, Defendant; SCOT HOLLENBECK JOSE ANTONIO INGUEZ
JACOB WALTER JUNG HO HEILVEIL, and VIE SPORTS MARKETING, INC, a Georgia corporation, Plaintiffs, v. UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, and U.S. PARALYMPICS, INC., f/k/a UNITED
STATES PARALYMPIC CORPORATION, a Colorado non-profit corporation, Defendants.

Civil Action No. 99-cv-02077-JLK, Civil Action No. 03-cv-1364-JLK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

June 14, 2006, Decided June 14, 2006, Filed

COUNSEL: [*1] For Mark E. Shepherd, Plaintiff: Amy Farr Robertson, Timothy Patrick Fox, Fox & Robertson, P.C., Denver, CO; Darold W. Kilmer, Kilmer, Lane & Newman, LLP, Denver, CO; Michael Wayne Breeskin, Arc of Denver, Inc., Denver, CO.
For United States Olympic Committee, a corporation, Defendant: Christopher Todd Handmanm Hogan & Hartson, LLP-DC, Washington, DC; Edward John Butler, Nancy Dawn Webber, Raymond Myles Deeny, Sherman & Howard, L.L.C. -- Colorado Springs CO, Colorado Springs, CO; John William Cook, Hogan & Hartson, LLP-Colorado Springs, Colorado Springs, CO.
Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc., a Georgia corporation, Plaintiffs: Amy Farr Robertson, Fox & Robertson, P.C., Denver, CO; Kevin William Williams, Colorado Cross-Disability Coalition, Denver, CO.
For United States Olympic Committee, a federallychartered corporation, Defendant: Christopher Todd Handman, Hogan & Hartson, LLP-DC, Washington, DC.
JUDGES: John L. Kane, SENIOR UNITED STATES DISTRICT JUDGE.
OPINION BY: John L. Kane
OPINION
ORDER
Before me are Plaintiffs' Motions for Ruling (Doc.

188 in 99-cv-2077 and Doc. 43 in 03-cv-1364) on the Motions in these [*2] related cases regarding the viability of Plaintiffs "Athlete Claims" as cognizable causes of action under the Americans with Disabilities Act. The Motions for Ruling are GRANTED. Despite having completed significant work on the parties' crossMotions for Summary Judgment in 99-cv-2077 (Docs. 139 & 140) and Defendants' Motion to Dismiss in 03-cv1364 (Doc. 3) in the weeks leading up to oral argument last fall, the intervening Cook v. Rockwell Rocky Flats class action trial and press of other business have conspired to deny the parties a written decision in a timely manner.
I recommit to completing my decision and, to aid in that effort, ask the parties over Defendants' objection to submit competing proposed orders on the Motions directed to Plaintiffs' Athlete Claims. Specifcially, the parties shall each present their respective proposed findings and conclusions with regard to the viability of Plaintiffs' Athlete Claims in a single Order with the combined caption above, and shall file their proposed Orders both in accordance with the Court's e-filing instructions as .pdf documents and as WordPerfect editable documents to my chambers email account at Kane_Chambers@cod.uscourts. [*3] gov. The proposed Orders shall include substantive and accurate citation to legal authority and present proposed rulings in defensible, competent legal analysis. The proposed Orders shall be filed on or before June 29, 2006.
Dated June 14, 2006
s/ John L. Kane
SENIOR U.S. DISTRICT JUDGE

 
 Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 1 of 19
STLMT, SuppressAnsRpt, TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:99−cv−02077−JLK−MEH

Shepherd v. US Olympic Committee, et al Assigned to: Judge John L. Kane Referred to: Magistrate Judge Michael E. Hegarty Demand: $8,041,000
Case in other court: USCA, 07−01056
Cause: 42:12101 Americans With Disabilities Act (ADA)
Plaintiff

Date Filed: 10/26/1999 Date Terminated: 01/10/2008 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Mark E. Shepherd

represented by Amy Farr Robertson Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: arob@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E. Faley Legal Center for People with Disabilities 455 Sherman Street #130 Denver, CO 80203 303−722−0300 Fax: 303−722−0720 Email: afaley@thelegalcenter.org TERMINATED: 07/02/2002 LEAD ATTORNEY

Countess Pease Jeffries Jeffries Advocates Law Offices 485 East 17th Street #390 Costa Mesa, CA 92627 949−722−0055 Fax: 722−8416 TERMINATED: 09/18/2001 LEAD ATTORNEY

Darold W. Killmer Killmer, Lane &Newman, LLP 1543 Champa Street #400 Denver, CO 80202 303−571−1000 Fax: 303−571−1001 Email: dkillmer@kln−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Wayne Breeskin Arc of Denver, Inc. 1905 Sherman Street #300 Denver, CO 80203 303−831−7733 Fax: 303−839−5178

Case: 1:99-cv-02077-JLK-MEH

As of: 06/07/2010 09:52 PM MDT 2 of 19
Email: mbreeskin@arcofdenver.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula Dee Greisen King &Greisen, LLP 1670 York Street Denver, CO 80206 303−298−9878 Fax: 303−298−9879 Email: greisen@kinggreisen.com TERMINATED: 01/03/2003 LEAD ATTORNEY
Timothy Patrick Fox Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: tfox@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Reuben Krichiver Smith &West, LLC−Denver 1860 Blake Street Blake Street Terrace #420 Denver, CO 80202 303−391−0100 Fax: 303−391−0102 Email: ari@smithandwest.com TERMINATED: 07/26/2007
Mari Anne Newman Killmer, Lane &Newman, LLP 1543 Champa Street #400 Denver, CO 80202 303−571−1000 Fax: 303−571−1001 Email: mnewman@kln−law.com ATTORNEY TO BE NOTICED

V.
Defendant
United States Olympic Committee a corporation

represented by Anne Hall Turner Colorado Springs City Attorney's Office−South Nevada P.O. Box 1575, Mail Code 510 30 South Nevada Avenue #501 Colorado Springs, CO 80901−1575 719−385−5909 Fax: 719−385−5535 Email: cattorney@springsgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Todd Handman Hogan Lovells US LLP−DC

Case: 1:99-cv-02077-JLK-MEH

As of: 06/07/2010 09:52 PM MDT 3 of 19
555 13th Street, N.W. Columbia Square #1300 Washington, DC 20004−1109 202−637−5600 Fax: 202−637−5910 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward John Butler Sherman &Howard, L.L.C.−Colorado Springs 90 South Cascade Avenue #1500 Colorado Springs, CO 80903 719−475−2440 Fax: 719−635−4576 Email: ebutler@sah.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John William Cook Hogan Lovells US LLP−Colorado Springs Two North Cascade Avenue #1300 Colorado Springs, CO 80903 719−448−5900 Fax: 719−448−5922 Email: jwcook@hhlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Dawn Webber Sherman &Howard, L.L.C.−Colorado Springs 90 South Cascade Avenue #1500 Colorado Springs, CO 80903 719−475−2440 Fax: 719−635−4576 Email: dwebber@sah.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond Myles Deeny Sherman &Howard, L.L.C.−Colorado Springs 90 South Cascade Avenue #1500 Colorado Springs, CO 80903 719−475−2440 Fax: 719−635−4576 Email: rdeeny@sah.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Virginia Starr Morgan Hogan Lovells US LLP−Colorado Springs Two North Cascade Avenue #1300 Colorado Springs, CO 80903 719−448−5900 Fax: 719−448−5922 Email: vsmorgan@hhlaw.com TERMINATED: 06/05/2006

Case: 1:99-cv-02077-JLK-MEH
Defendant International Olympic Committee a corporation TERMINATED: 04/20/2000

As of: 06/07/2010 09:52 PM MDT 4 of 19
LEAD ATTORNEY
Jeffrey S. George Hogan Lovells US LLP−Colorado Springs Two North Cascade Avenue #1300 Colorado Springs, CO 80903 719−448−5900 Fax: 719−448−5922 Email: jsgeorge@hhlaw.com ATTORNEY TO BE NOTICED
represented by James R. Asperger O'Melveny &Myers 400 South Hope Street # 1060 Los Angeles, CA 90071−2899 213−430−6000 Fax: 430−6407 TERMINATED: 04/20/2000 LEAD ATTORNEY
Susan Bernhardt Sherman &Howard, L.L.C.−Denver 633 17th Street #3000 Denver, CO 80202−3622 303−297−2900 Fax: 303−298−0940 Email: sbernhardt@shermanhoward.com TERMINATED: 04/20/2000 LEAD ATTORNEY

Date Filed 10/26/1999 10/26/1999 11/24/1999 11/24/1999 11/30/1999
12/13/1999 12/14/1999

# Docket Text
1 COMPLAINT (Summons(es) issued); jury demand (former empl) (Entered: 10/26/1999)
FILING FEE PAID: on 10/26/99 in the amount of $ 150, receipt # 210585. (former empl) (Entered: 10/26/1999)
2 MOTION by defendant US Olympic Committee to dismiss pursuant to Rule 12(b)(6) or for summary jgm pursuant to Rule 56(c) , and to strike pursuant to Rule 12(f) (former empl) Modified on 11/29/1999 (Entered: 11/29/1999)
3 BRIEF by defendant US Olympic Committee in support of motion to dismiss pursuant to Rule 12(b)(6) or for summary jgm pursuant to Rule 56(c) [2−1], motion to strike pursuant to Rule 12(f) [2−2] (former empl) (Entered: 11/29/1999)
4 MINUTE ORDER by Judge John L. Kane regarding [2−1] motion to dismiss pursuant to Rule 12(b)(6) or for summary jgm pursuant to Rule 56(c), regarding [2−2] motion to strike pursuant to Rule 12(f), response due 12/14/99, reply due 12/24/99 (cc: all counsel) ; entry date : 12/1/99 (former empl) (Entered: 12/01/1999)
5 Ex Parte MOTION by defendant Intl Olympic Comm to extend time to 12/28/99 to answer (former empl) (Entered: 12/14/1999)
6 BRIEF by plaintiff in opposition to motion to dismiss pursuant to Rule 12(b)(6) or for summary jgm pursuant to Rule 56(c) [2−1], motion to strike pursuant to Rule 12(f) [2−2]; evidentiary objection to afdt of John Samuelson (former empl) Modified on 12/14/1999 (Entered: 12/14/1999)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 5 of 19

12/14/1999 12/27/1999 12/28/1999 12/30/1999 01/05/2000 01/14/2000 01/19/2000 01/27/2000 01/27/2000 02/04/2000 04/20/2000
05/03/2000 05/05/2000 06/05/2000 06/05/2000 08/18/2000

7 MINUTE ORDER by Judge John L. Kane granting motion to extend time to 12/28/99 to answer [5−1] (cc: all counsel) entry date : 12/15/99 (former empl) (Entered: 12/15/1999)
8 REPLY by defendant US Olympic Committee to response to motion to dismiss pursuant to Rule 12(b)(6) or for summary jgm pursuant to Rule 56(c) [2−1], motion to strike pursuant to Rule 12(f) [2−2] (gms) (Entered: 12/28/1999)
9 MOTION by defendant Intl Olympic Comm to dismiss for lack of personal jurisdiction (lam) (Entered: 12/29/1999)
10 MINUTE ORDER by Judge John L. Kane regarding [9−1] motion to dismiss for lack of personal jurisdiction, response due 1/20/00, reply due 1/30/00 (cc: all counsel) ; entry date : 1/3/00 (former empl) (Entered: 01/03/2000)
11 LETTER to court from counsel for defendant US Olympic Committee requesting addition to mailing list (note: no entry of appearance filed; counsel has not signed any pleadings) (former empl) (Entered: 01/12/2000)
12 ATTORNEY APPEARANCE for defendant US Olympic Committee by John William Cook, Virginia S. Morgan (former empl) (Entered: 01/18/2000)
13 BRIEF by plaintiff in opposition to motion to dismiss for lack of personal jurisdiction [9−1]; afdt of Peter L. Warren (former empl) (Entered: 01/19/2000)
14 MOTION by defendant Intl Olympic Comm to extend time to 2/4/00 to respond to brief in opp to motion to dismiss (former empl) (Entered: 01/28/2000)
15 ORDER by Judge John L. Kane granting motion to extend time to 2/4/00 to respond to brief in opp [14−1], regarding [9−1] motion to dismiss for lack of personal jurisdiction (cc: all counsel) ; entry date : 1/28/00 (former empl) (Entered: 01/28/2000)
16 REPLY by defendant Intl Olympic Comm to brief in opp to motion to dismiss for lack of personal jurisdiction [9−1] (former empl) (Entered: 02/07/2000)
17 MEMORANDUM, OPINION, AND ORDER by Judge John L. Kane: granting dft IOC's motion to dismiss for lack of personal jurisdiction [9−1] and dismissing case against dft Intl Olympic Comm with each party to pay own costs; dft USOC's motion to dismiss purs to FRCP 12(b)(6) or in the alternative for summary jgm purs to FRCP 56(c) [2−1], and motion to strike purs to FRCP 56(c) [2−2] is granted insofar as it seeks to dismiss the claims 1, 2 and 3 w/out prejudice for failure to exhaust administrative remedies; denied insofar as it seeks dismissal of claims 4−17; granted insofar as it seeks to dismiss the 18th and 19th claims w/out prejudice; denied insofar as it seeks dismissal of the 20 claim; granted insofar as it seeks to strike as immaterial the claim for punitive damages for alleged breach of contract; granted insofar as it seeks dismissal of the 21st claim w/prejudice; denied insofar as it seeks dismissal of the 22nd claim; granted insofar as it seeks dismissal of the 23rd claim w/out prejudice; denied insofar as it seeks to dismiss the reqs for damages for emotional pain &suffering (cc: all counsel) ; entry date : 4/21/00 (lam) (Entered: 04/21/2000)
18 ANSWER by defendant to complaint [1−1] (former empl) (Entered: 05/04/2000)
19 Minute ORDER FOR RULE 16 CONFERENCE by Judge John L. Kane ; Rule 16 conference set for 9:30 6/5/00 (cc: all counsel) (gms) (Entered: 05/08/2000)
20 COURTROOM MINUTES OF SCHED CONF by Judge John L. Kane rule 16 conf held on 6/5/00 ; entry date : 6/6/00 Court Reporter: Paul Zuckerman (former empl) (Entered: 06/06/2000)
21 Stipulated SCHEDULING &Discovery ORDER Judge John L. Kane discovery cutoff 3/30/01; dispositive motions due 4/30/01 (cc: all counsel) (former empl) (Entered: 06/06/2000)
22 MOTION by Natl Archery Assoc, USA Shooting, USA Cycling, Inc., USA Swimming, United States Water Polo, United States Amateur Boxing, The United States Figure Skating Association and U.S. Modern Pentathlon Association for protective orders and to quash subpoenas (former empl) (Entered: 08/22/2000)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 6 of 19

08/21/2000 08/22/2000 08/23/2000 08/28/2000 08/30/2000 08/30/2000 09/05/2000
01/22/2001 01/22/2001 01/22/2001 01/22/2001 01/23/2001 01/23/2001 01/25/2001 01/25/2001 01/26/2001 01/26/2001 02/01/2001 02/01/2001 02/01/2001

23 Third−Party Witnesses SUPPLEMENT to motion for protective orders and to quash subpoenas [22−1] Adds USA Track &Field association as a movant (former empl) (Entered: 08/22/2000)
24 MINUTE ORDER : by Judge John L. Kane setting hearing on motion for protective orders and to quash subpoenas [22−1] 9:30 9/5/00 (cc: all counsel) ; entry date : 8/23/00 (former empl) (Entered: 08/23/2000)
25 Second SUPPLEMENT adding USA Hockey, Inc. to motion of third party witnesses for protective orders and to quash subpoenas [22−1] (former empl) (Entered: 08/24/2000)
26 Third Party SUPPLEMENT by to third party motion for protective orders and to quash subpoenas [22−1] (former empl) (Entered: 08/29/2000)
27 AFFIDAVIT of Countess Pease Jeffries in opposition to motion for protective orders and to quash subpoenas [22−1] Request for Attorneys Fees/Sanctions (former empl) (Entered: 08/30/2000)
28 Addenda (APPENDIX) filed to affidavit [27−1] (former empl) (Entered: 08/30/2000)
29 COURTROOM MINUTES by Judge John L. Kane denying third−party witnesses motion for protective orders and granting motion to quash subpoenas [22−1]; request for attorney's fees is denied. ORDERED: By 9/20/00 pla shall serve requests for production and request for admissiions on dft. Answers are due 10/20/00. No extensions. Except for production and admissions no and other discovery proceedings are stayed ; entry date : 9/5/00 Court Reporter: Geneva Mattei (former empl) (Entered: 09/05/2000)
30 TRANSCRIPT of Motion for Protective Orders on 9/5/00 before Judge Kane ( pages: 14) Prepared By: Federal Reporting Service (certified copy) (former empl) (Entered: 01/23/2001)
31 STATUS REPORT re discovery by plaintiff (former empl) (Entered: 01/23/2001)
32 MOTION by plaintiff for partial summary judgment (former empl) (Entered: 01/23/2001)
33 EXHIBITS (8 Volumes) by plaintiff Mark E. Shepherd to motion for partial summary judgment [32−1] (former empl) (Entered: 01/23/2001)
34 MINUTE ORDER : by Judge John L. Kane regarding [31−1] status report dft shall respond by 2/5/01. (cc: all counsel) ; entry date : 1/24/01 (former empl) (Entered: 01/24/2001)
35 NOTICE by plaintiff's counsel of unavailability (former empl) (Entered: 01/24/2001)
36 RESPONSE by defendant to report [31−1] (former empl) (Entered: 01/26/2001)
36 Request (MOTION) by defendant for scheduling conf (former empl) (Entered: 01/26/2001)
37 MOTION by plaintiff for leave to file first amendment to the complaint [1−1] (former empl) (Entered: 01/29/2001)
38 Amendment by dft to response to pla's status report and (AMENDED MOTION) request for scheduling conf regarding motion for scheduling conf [36−1] (former empl) (Entered: 01/29/2001)
39 REPLY by plaintiff to response [36−1] to pla's status report, affidavit of Countess Pease Jeffries (former empl) (Entered: 02/02/2001)
40 MOTION by defendant for an extension of time to fiel opp brief (former empl) (Entered: 02/02/2001)
41 MINUTE ORDER : by Judge John L. Kane granting motion for an extension of time to 3/19/01 to file opp brief [40−1] Pla may reply by 3/30/01 (cc: all counsel) ; entry date : 2/2/01 (former empl) (Entered: 02/02/2001)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 7 of 19

02/02/2001 02/02/2001 02/06/2001 02/09/2001 02/22/2001 03/07/2001 03/08/2001 03/21/2001 03/28/2001 03/30/2001 03/30/2001 04/02/2001 04/05/2001
04/10/2001 04/10/2001 04/13/2001
04/18/2001 04/19/2001 04/24/2001 04/26/2001

42 MINUTE ORDER : by Judge John L. Kane granting pla's motion for leave to file first amendment to the complaint [1−1] [37−1] (cc: all counsel) ; entry date : 2/5/01 (former empl) (Entered: 02/05/2001)
43 First AMENDment to the COMPLAINT [1−1] by plaintiff (former empl) (Entered: 02/05/2001)
46 2nd MOTION by defendant for extension of time to file opposition brief to 3/26/01 (former empl) (Entered: 03/08/2001)
44 ANSWER by defendant to first amendment to complaint [43−1] (former empl) (Entered: 02/12/2001)
45 MINUTE ORDER : by Judge John L. Kane granting dft's request for scheduling conf [38−1] ; rule 16 conference set for 2:00 5/1/01 (cc: all counsel) ; entry date : 2/26/01 (former empl) (Entered: 02/26/2001)
47 MINUTE ORDER : by Judge John L. Kane granting dft's motion for extension of time to file opposition brief to 3/30/01 [46−1] Pla shall have to 4/10/01 to reply (cc: all counsel) ; entry date : 3/8/01 (former empl) (Entered: 03/08/2001)
48 Opposition (RESPONSE) by plaintiff to dft's 2nd motion for extension of time to file opposition brief to 3/26/01 [46−1] (former empl) (Entered: 03/12/2001)
49 Unopposed MOTION by defendant for leave to file oversized brief in opp to pla's mtn for partial sum jgm (former empl) (Entered: 03/22/2001)
50 MOTION by plaintiff for sanctions and afdt of Countes Pease Jeffries (former empl) (Entered: 03/29/2001)
51 RESPONSE by defendant to in opp to pla's motion for partial summary judgment [32−1] (former empl) (Entered: 04/02/2001)
53 Separate RESPONSE by defendant to pla's separate stmt of uncontroverted facts (former empl) (Entered: 04/04/2001)
52 MINUTE ORDER : by Judge John L. Kane granting dft's unopposed motion for leave to file oversized brief in opp to pla's mtn for partial sum jgm [49−1] (cc: all counsel) ; entry date : 4/3/01 (former empl) (Entered: 04/03/2001)
54 MINUTE ORDER : by Judge John L. Kane denying as premature pla's motion for sanctions [50−1] with leave to re−file if appropriate following court's decision on mtn for sum jgm. (cc: all counsel) ; entry date : 4/6/01 (former empl) (Entered: 04/06/2001)
55 Evidentiary objs and MOTION by plaintiff to strike (certain exhibits to motion response [51−1]) (former empl) (Entered: 04/12/2001)
56 REPLY by plaintiff to dft's opposition to pla's motion for partial summary judgment [32−1] (former empl) (Entered: 04/12/2001)
57 MINUTE ORDER : by Judge John L. Kane regarding [55−1] motion to strike (certain exhibits to motion response [51−1]) Dft shall respond on or before 5/1/01. Pla shall reply on or before 5/11/01 (cc: all counsel) ; entry date : 4/17/01 (erv) (Entered: 04/17/2001)
58 Application (MOTION) by plaintiff for continuance of scheduling conference set 5/1/01 (gms) (Entered: 04/23/2001)
59 RESPONSE by defendant US Olympic Committee in opposition to motion for continuance of scheduling conference set 5/1/01 [58−1] (gms) (Entered: 04/23/2001)
60 MINUTE ORDER : by Judge John L. Kane denying pla's application (motion) for continuance of scheduling conference set 5/1/01 [58−1] (cc: all counsel) ; entry date : 4/25/01 (former empl) (Entered: 04/25/2001)
61 MINUTE ORDER : by Judge John L. Kane ; rule 16 conference time changed to 3:00 on 5/1/01 (cc: all counsel) ; entry date : 4/27/01 (former empl) (Entered: 04/27/2001)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 8 of 19

04/30/2001 05/01/2001 05/01/2001 05/07/2001 05/10/2001 05/14/2001 08/10/2001 08/10/2001
08/13/2001 08/13/2001 09/14/2001
09/18/2001
09/21/2001 09/21/2001
09/21/2001 09/24/2001 09/24/2001

62 Supplement to Stipulated Scheduling and Discovery Order: AFFIDAVIT of Countess Pease Jeffries, Esq. (former empl) (Entered: 05/01/2001)
63 MINUTE ORDER : by Judge John L. Kane Vacating rule 16 conf scheduled for 5/1/01 (cc: all counsel) ; entry date : 5/1/01 (former empl) (Entered: 05/01/2001)
64 RESPONSE in Opposition by defendant US Olympic Committee to Pltf's Evidentiary Objections and motion to strike (certain exhibits to motion response [51−1]) [55−1] (former empl) (Entered: 05/02/2001)
65 ORDER on Scheduling and Case Management Issues Judge John L. Kane ; Discovery cutoff 11/30/01 ;dispositive motions due 12/28/01 (cc: all counsel) (former empl) (Entered: 05/08/2001)
66 REPLY by plaintiff to response to motion to strike (certain exhibits to motion response [51−1]) [55−1] (former empl) (Entered: 05/10/2001)
67 ADDENDA TO STIPULATED SCHEDULING AND DISCOVERY ORDER by plaintiff (former empl) (Entered: 05/15/2001)
68 MOTION by defendant US Olympic Committee to File Amended Answer and Amended Answer to First Amendment to Complaint (former empl) (Entered: 08/10/2001)
Tendered Amended Answer and Amended Answer to First Amendment to Complaint submitted by defendant US Olympic Committee re: motion to File Amended Answer and Amended Answer to First Amendment to Complaint [68−1] (former empl) (Entered: 08/10/2001)
69 MINUTE ORDER : by Judge John L. Kane granting motion to File Amended Answer and Amended Answer to First Amendment to Complaint [68−1] (cc: all counsel) ; entry date : 8/14/01 (former empl) (Entered: 08/14/2001)
70 AMENDED ANSWER and Amended Answer to First Amendment to Complaint [44−1], [18−1] by defendant US Olympic Committee (former empl) (Entered: 08/14/2001)
71 MOTION by plaintiff for Withdrawal and Substitution of Counsel (w/drawing Countess Jeffries and substituting Timothy P. Fox, Amy F. Robertson, Michael W. Breeskin, Darold Killmer, Paula Greisen &Andrea Faley (former empl) (Entered: 09/17/2001)
72 MINUTE ORDER : by Judge John L. Kane granting motion for Withdrawal and Substitution of Counsel (w/drawing Countess Jeffries and substituting Timothy P. Fox, Amy F. Robertson, Michael W. Breeskin, Darold Killmer, Paula Greisen &Andrea Faley [71−1] attorney Countess Pease Jeffries for Mark E. Shepherd (cc: all counsel) ; entry date : 9/19/01 (former empl) (Entered: 09/19/2001)
73 MOTION by plaintiff for Leave to Submit a Supplemental Brief in Support of His Motion for Partial Sum Jgm Pursuant to FRCvP 56(a) (former empl) (Entered: 09/21/2001)
Tendered Pltf's Supplemental Brief in Support of His Motion for Partial Sum Jgm Pursuant to FRCvP 56(a) submitted by plaintiff re: motion for Leave to Submit a Supplemental Brief in Support of His Motion for Partial Sum Jgm Pursuant to FRCvP 56(a) [73−1] (former empl) (Entered: 09/21/2001)
74 MOTION by plaintiff to amend schedule order [65−1] (former empl) (Entered: 09/21/2001)
75 MOTION by plaintiff for Protective Order Regarding the Deposition of Plaintiff Shepherd (former empl) (Entered: 09/24/2001)
76 MINUTE ORDER : by Judge John L. Kane granting motion for Leave to Submit a Supplemental Brief in Support of His Motion for Partial Sum Jgm Pursuant to FRCvP 56(a) [73−1] and Dfts may file a suppl response by 10/5/01 (cc: all counsel) ; entry date : 9/25/01 (former empl) (Entered: 09/25/2001)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 9 of 19

09/24/2001 09/27/2001
09/27/2001 09/28/2001 10/05/2001
10/09/2001 10/09/2001 10/09/2001
10/09/2001
10/10/2001 10/23/2001 10/24/2001 12/28/2001 12/28/2001 01/03/2002 01/03/2002 01/14/2002 01/14/2002

77 Supplemental BRIEF by plaintiff in support of motion for partial summary judgment [32−1] pursuant to Fed.R.Civ.P. 56(a) (former empl) (Entered: 09/25/2001)
78 MINUTE ORDER : by Judge John L. Kane granting motion for Protective Order Regarding the Deposition of Plaintiff Shepherd [75−1]; hearing on sanctions previously set 10/9/01 10:00 (cc: all counsel) ; entry date : 9/28/01 (pap) (Entered: 09/28/2001)
79 MINUTE ORDER : by Judge John L. Kane setting hearing on pla's motion to amend schedule order [65−1] [74−1] 10:00 10/9/01 (cc: all counsel) ; entry date : 9/28/01 (pap) (Entered: 09/28/2001)
80 RESPONSE by defendant US Olympic Committee to pla's motion to amend schedule order [65−1] [74−1] and pla's motion for Protective Order Regarding the Deposition of Plaintiff Shepherd [75−1] (gms) (Entered: 10/01/2001)
81 STIPULATION re: 1) Pltf's Motion to Modify Case Management Order; 2) Dft's Withdrawal of Affirmative Defense; 3) Pltf's Motion for Leave to File Amended Complaint by plaintiff Mark E. Shepherd, defendant US Olympic Committee (former empl) (Entered: 10/09/2001)
82 Unopposed MOTION by plaintiff for leave to File a Second Amended Complaint (former empl) (Entered: 10/09/2001)
Tendered Second Amended Complaint submitted by plaintiff re: motion for leave to File a Second Amended Complaint [82−1] (former empl) (Entered: 10/09/2001)
83 MINUTE ORDER : by Judge John L. Kane denying as moot motion to amend schedule order [65−1] [74−1] and motion to strike (certain exhibits to motion response [51−1]) [55−1] (cc: all counsel) ; entry date : 10/10/01 (former empl) (Entered: 10/10/2001)
84 COURTROOM MINUTES by Judge John L. Kane denying w/o prej as being moot motion for partial summary judgment [32−1], granting motion for leave to File a Second Amended Complaint [82−1] ; Pltf's Oral Motion to Include the Work Willful in Describing Dft's Conduct in Count Four of the Second Amended Complaint is granted; Court will not consider sanctions on Pltf's former cnsl unless a motion is filed and served on former cnsl. Sanctions will also not be imposed on present cnsl because of their current efforts. Atty fees shall not be assessed entry date : 10/10/01 Court Reporter: ECR (former empl) (Entered: 10/10/2001)
85 SECOND AMENDED COMPLAINT [43−1] by plaintiff; jury demand (former empl) (Entered: 10/10/2001)
86 TRANSCRIPT of Hearing on 10/9/01 before Judge Kane, Jr. ( pages: 20) Prepared By: Fed Rpting Svc (certified copy) (former empl) (Entered: 10/24/2001)
87 ANSWER by defendant to second amended complaint [85−1] (former empl) (Entered: 10/25/2001)
88 Unopposed MOTION by plaintiff to file third amended complaint [85−1] (pap) (Entered: 12/31/2001)
Tendered Third Amended Complaint submitted by plaintiff re: motion to file third amended complaint [85−1] [88−1] (pap) (Entered: 12/31/2001)
89 MINUTE ORDER : by Judge John L. Kane granting motion to file third amended complaint [85−1] [88−1] (cc: all counsel) ; entry date : 1/3/02 (former empl) (Entered: 01/03/2002)
90 THIRD AMENDED COMPLAINT [85−1] by plaintiff; jury demand (former empl) (Entered: 01/03/2002)
91 ANSWER by defendant US Olympic Committee to third amended complaint [90−1] (former empl) (Entered: 01/15/2002)
92 MOTION by defendant US Olympic Committee to dismiss Claim for Wrongful Discharge in Violation of Public Policy (former empl) (Entered: 01/15/2002)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 10 of 19

01/14/2002 01/14/2002
02/01/2002 02/04/2002
02/19/2002 02/26/2002 02/26/2002
02/28/2002 03/13/2002 03/19/2002 04/18/2002 04/23/2002
05/10/2002 05/10/2002 05/10/2002 05/10/2002 05/10/2002 05/13/2002

93 BRIEF in Support by defendant in support of motion to dismiss Claim for Wrongful Discharge in Violation of Public Policy [92−1] (former empl) (Entered: 01/15/2002)
94 MINUTE ORDER : by Judge John L. Kane regarding [92−1] motion to dismiss Claim for Wrongful Discharge in Violation of Public Policy; reponse due 2/4/02 and reply due 2/14/02 (cc: all counsel) ; entry date : 1/15/02 (former empl) (Entered: 01/15/2002)
95 Unopposed MOTION by plaintiff for Extension of Time to Respond to Motion to Dismiss Claim for Wrongful Discharge in Violation of Public Policy to 2/18/02 (former empl) (Entered: 02/04/2002)
96 MINUTE ORDER : by Judge John L. Kane granting motion for Extension of Time to Respond to Motion to Dismiss Claim for Wrongful Discharge in Violation of Public Policy to 2/18/02 [95−1]; response due 2/18/02 and reply, if any, due 2/28/02 (cc: all counsel) ; entry date : 2/5/02 (former empl) (Entered: 02/05/2002)
97 RESPONSE by plaintiff to motion to dismiss Claim for Wrongful Discharge in Violation of Public Policy [92−1] (former empl) (Entered: 02/20/2002)
98 MOTION by defendant for leave to File Reply Brief in Support of Motion to Dismiss Claim for Wrongful Discharge in Violation of Public Policy (the Reply Brief was not tendered w/the motion) (former empl) (Entered: 02/26/2002)
99 MINUTE ORDER : by Judge John L. Kane denying as moot motion for leave to File Reply Brief in Support of Motion to Dismiss Claim for Wrongful Discharge in Violation of Public Policy (the Reply Brief was not tendered w/the motion) [98−1] (cc: all counsel) ; entry date : 2/26/02 (former empl) (Entered: 02/26/2002)
100 REPLY by defendant to response to motion to dismiss Claim for Wrongful Discharge in Violation of Public Policy [92−1] (former empl) (Entered: 02/28/2002)
101 NOTICE of Supplemental Authority by plaintiff re: motion response [97−1] (former empl) (Entered: 03/13/2002)
102 TRANSCRIPT of Sched Conf on 6/5/00 before Judge Kane ( pages: 19) Prepared By: P. Zuckerman (certified copy) (former empl) (Entered: 03/20/2002)
103 Joint MOTION to extend discovery to 9/30/02 and dispositive to 10/30/02 (former empl) (Entered: 04/18/2002)
104 MINUTE ORDER : by Judge John L. Kane granting motion to extend discovery to 9/30/02 and dispositive to 10/30/02 [103−1] ; discovery ddl set 9/30/02 ; disp mtn ddl set 10/30/02 (cc: all counsel) ; entry date : 4/23/02 (former empl) (Entered: 04/23/2002)
105 MOTION by plaintiff for sanctions Pursuant to Rule 11 (former empl) (Entered: 05/13/2002)
106 MOTION by plaintiff for sanctions Pursuant to 28 USC Sect. 1927 (former empl) (Entered: 05/13/2002)
107 Memorandum by plaintiff in support of motion for sanctions Pursuant to Rule 11 [105−1], motion for sanctions Pursuant to 28 USC Sect. 1927 [106−1] (former empl) (Entered: 05/13/2002)
108 DECLARATION of Amy F. Robertson by plaintiff re: motion for sanctions Pursuant to Rule 11 [105−1], re: motion for sanctions Pursuant to 28 USC Sect. 1927 [106−1] (former empl) (Entered: 05/13/2002)
109 CERTIFICATE of Service by plaintiff of Motions for Sanctions and Memorandum and Declaration in Support Thereof (former empl) (Entered: 05/13/2002)
110 MINUTE ORDER : by Judge John L. Kane regarding [106−1] motion for sanctions Pursuant to 28 USC Sect. 1927, regarding [105−1] motion for sanctions Pursuant to Rule 11 responses due 5/24/02 (cc: all counsel) ; entry date : 5/13/02 (former empl) (Entered: 05/13/2002)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 11 of 19

05/21/2002 05/21/2002 05/22/2002
05/29/2002 05/29/2002 05/30/2002 06/03/2002 06/04/2002 06/11/2002 06/12/2002
06/14/2002 06/14/2002 06/14/2002 06/14/2002 06/14/2002
06/24/2002

111 MINUTE ORDER : by Judge John L. Kane setting hearing on motion for sanctions Pursuant to 28 USC Sect. 1927 [106−1] 2:00 6/17/02, setting hearing on motion for sanctions Pursuant to Rule 11 [105−1] 2:00 6/17/02 (cc: all counsel) ; entry date : 5/21/02 (former empl) (Entered: 05/21/2002)
112 Unopposed MOTION by defendant for Extension of Time to File Response in Opposition to Pltf's Motion for Sanctions (former empl) (Entered: 05/21/2002)
113 MINUTE ORDER : by Judge John L. Kane granting unopposed motion for Extension of Time to File Response in Opposition to Pltf's Motion for Sanctions [112−1], regarding pla's [106−1] motion for sanctions Pursuant to 28 USC Sect. 1927, dfts opposition due by 6/11/02 (cc: all counsel) entry date : 5/22/02 (dlb) (Entered: 05/22/2002)
114 MOTION by plaintiff to compel (docs) (former empl) (Entered: 05/29/2002)
115 DECLARATION of Timothy P. Fox by plaintiff re: motion to compel (docs) [114−1] (former empl) (Entered: 05/29/2002)
116 MINUTE ORDER : by Judge John L. Kane setting hearing on motion to compel (docs) [114−1] 2:00 6/17/02; response due 6/11/02 (cc: all counsel) ; entry date : 5/31/02 (former empl) (Entered: 05/31/2002)
117 Unopposed MOTION by defendant for an Extension of time to File a Response in Opposition to Pltf's Motion to Compel to 6/13/02 (former empl) (Entered: 06/03/2002)
118 MINUTE ORDER : by Judge John L. Kane granting motion for an Extension of time to File a Response in Opposition to Pltf's Motion to Compel to 6/13/02 [117−1] (cc: all counsel) ; entry date : 6/4/02 (former empl) (Entered: 06/04/2002)
119 Response (BRIEF) by defendant US Olympic Committee in opposition to pla's motions for sanctions Pursuant to 28 USC Sect. 1927 [106−1] and Pursuant to Rule 11 [105−1] (dlb) (Entered: 06/12/2002)
120 MINUTE ORDER : by Judge John L. Kane resetting hearing on motion to compel (docs) [114−1] 4:00 7/1/02, regarding [106−1] motion for sanctions Pursuant to 28 USC Sect. 1927, regarding [105−1] motion for sanctions Pursuant to Rule 11 hearing on motion for sanctions will proceed as scheduled on 6/17/02 (cc: all counsel) ; entry date : 6/13/02 (former empl) (Entered: 06/13/2002)
121 Unopposed MOTION by plaintiff for leave to File a Reply Memorandum in Support of His Motion for Sanctions Pursuant to 28 USC Sect. 1927 and His Motion for Sanctions Pursuant to Rule 11 (former empl) (Entered: 06/17/2002)
Tendered Reply Memo in Support submitted by plaintiff re: motion for leave to File a Reply Memorandum in Support of His Motion for Sanctions Pursuant to 28 USC Sect. 1927 and His Motion for Sanctions Pursuant to Rule 11 [121−1] (former empl) (Entered: 06/17/2002)
122 MINUTE ORDER : by Judge John L. Kane granting motion for leave to File a Reply Memorandum in Support of His Motion for Sanctions Pursuant to 28 USC Sect. 1927 and His Motion for Sanctions Pursuant to Rule 11 [121−1] (cc: all counsel) ; entry date : 6/17/02 (former empl) (Entered: 06/17/2002)
123 REPLY Memo in Support by plaintiff to response to motion for sanctions Pursuant to 28 USC Sect. 1927 [106−1], motion for sanctions Pursuant to Rule 11 [105−1] (former empl) (Entered: 06/17/2002)
124 AMENDED MINUTE ORDER : by Judge John L. Kane resetting hearing on motion for sanctions Pursuant to Rule 11 [105−1] 3:00 6/24/02, resetting hearing on motion for sanctions Pursuant to 28 USC Sect. 1927 [106−1] 3:00 6/24/02, setting hearing on motion to compel (docs) [114−1] 4:00 7/10/02 (cc: all counsel) ; entry date : 6/17/02 (former empl) (Entered: 06/17/2002)
125 COURTROOM MINUTES by Judge John L. Kane denying motion for sanctions Pursuant to 28 USC Sect. 1927 [106−1], denying motion for sanctions Pursuant to Rule 11 [105−1] ; entry date : 6/25/02 Court Reporter: ECR − Terasaki (former empl) (Entered: 06/25/2002)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 12 of 19

06/27/2002
06/28/2002 06/28/2002 07/02/2002 07/10/2002 07/10/2002 07/10/2002
07/24/2002 07/25/2002 07/29/2002 08/22/2002 08/22/2002 08/26/2002
09/18/2002 09/18/2002 09/18/2002 09/18/2002 09/18/2002 09/18/2002

126 MINUTE ORDER : by Judge John L. Kane motion to compel (docs) [114−1] ; motion hearing vacated for 4:00 p.m. on 7/10/02 ; Pltf has until 7/10/02 to w/draw motion to compel or file a status report (cc: all counsel) ; entry date : 6/28/02 (former empl) (Entered: 06/28/2002)
127 NOTICE of Change of Firm, Address &Telephone Number of Darold W. Killmer, Esq. cnsl for plaintiff (former empl) (Entered: 07/01/2002)
128 MOTION by cnsl for plaintiff to withdraw as counsel of record − Andrea E. Faley, Esq. (former empl) (Entered: 07/01/2002)
129 ORDER by Judge John L. Kane granting motion to withdraw as counsel of record − Andrea E. Faley, Esq. [128−1] attorney Andrea E. Faley for Mark E. Shepherd (cc: all counsel) ; entry date : 7/3/02 (former empl) (Entered: 07/03/2002)
130 STATUS REPORT by plaintiff Regarding His Motion to Compel (former empl) (Entered: 07/10/2002)
131 Exhibit by plaintiff to status report regarding his motion to compel [130−1] (former empl) (Entered: 07/10/2002)
132 MINUTE ORDER : by Judge John L. Kane regarding [130−1] status report and exhibit [131−1]; Pltf's request to file supplemental status report RE: Motion to Compel by 7/24/02 is granted (cc: all counsel) ; entry date : 7/11/02 (former empl) Modified on 07/11/2002 (Entered: 07/11/2002)
133 Second STATUS REPORT by plaintiff RE: His Motion to Compel (former empl) (Entered: 07/25/2002)
134 MINUTE ORDER : by Judge John L. Kane regarding [133−1] status report; Pltf's request to file supplemental status rpt RE: Motion to Compel by 8/23/02 is granted (cc: all counsel) ; entry date : 7/26/02 (former empl) (Entered: 07/26/2002)
135 TRANSCRIPT of Hearing on Motion for Sanctions on 6/24/02 before Judge Kane ( pages: 26) Prepared By: Fed Rpting Svc (certified copy) (former empl) (Entered: 07/30/2002)
136 Third STATUS REPORT by plaintiff RE: Motion to Compel (former empl) (Entered: 08/23/2002)
137 JOINT MOTION for Briefing Sched (on cross motions for partial sum jgm) and to Extend Discovery (and dispositive motion ddls) (former empl) (Entered: 08/23/2002)
138 MINUTE ORDER : by Judge John L. Kane granting motion for Briefing Sched (on cross motions for partial sum jgm) and to Extend Discovery (and dispositive motion ddls) [137−1] ; discovery ddl set 11/30/02 ; disp mtn ddl set 12/31/02 withdrawing motion to compel (docs) [114−1] (cc: all counsel) ; entry date : 8/27/02 (former empl) (Entered: 08/27/2002)
139 MOTION by defendant US Olympic Committee for summary judgment on Pltf's Second and Third Claims for Relief (former empl) (Entered: 09/19/2002)
140 MOTION by plaintiff for partial summary adjudication (former empl) (Entered: 09/19/2002)
141 Memorandum by plaintiff in support of motion for partial summary adjudication [140−1] (former empl) (Entered: 09/19/2002)
142 DECLARATION of Mark E. Shepherd, Sr. by plaintiff re: motion for partial summary adjudication [140−1] (former empl) (Entered: 09/19/2002)
143 DECLARATION of Amy F. Robertson by plaintiff re: motion for partial summary adjudication [140−1] (former empl) (Entered: 09/19/2002)
144 STIPULATIONS by defendant US Olympic Committee (in response to the Doc Requests at issue in Pltf's Motion to Compel filed 5/29/02) (former empl) (Entered: 09/19/2002)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 13 of 19

10/09/2002 10/09/2002 10/09/2002 10/16/2002 10/16/2002 10/16/2002 11/29/2002 12/03/2002 12/31/2002 01/02/2003 01/02/2003
01/03/2003 02/18/2003 02/18/2003 04/02/2003 04/02/2003 04/03/2003
04/04/2003 04/30/2003

145 Memorandum (BRIEF) by plaintiff Mark E. Shepherd in opposition to USOC's motion for summary judgment on Pltf's Second and Third Claims for Relief [139−1] (dlb) (Entered: 10/10/2002)
146 Response (BRIEF) by defendant US Olympic Committee in opposition to pla's motion for partial summary adjudication [140−1] (dlb) (Entered: 10/10/2002)
147 Second DECLARATION of Amy F. Robertson by plaintiff re: declaration [143−1], re: motion for partial summary adjudication [140−1] (dlb) (Entered: 10/10/2002)
148 REPLY memo in support by plaintiff Mark E. Shepherd to dft's response to pla's motion for partial summary adjudication [140−1] (dlb) (Entered: 10/17/2002)
149 REPLY by defendant US Olympic Committee to pla's response to dft's motion for summary judgment on Pltf's Second and Third Claims for Relief [139−1] (dlb) (Entered: 10/17/2002)
150 Third DECLARATION of Amy F. Robertson by plaintiff re: declaration [147−1], re: declaration [143−1], re: motion for partial summary adjudication [140−1] (dlb) (Entered: 10/17/2002)
151 Unopposed MOTION by plaintiff Mark E. Shepherd to extend discovery cutoff for employment claims (dlb) (Entered: 12/02/2002)
152 MINUTE ORDER : by Judge John L. Kane granting motion to extend discovery cutoff for employment claims [151−1] ; discovery ddl set 1/31/03 (cc: all counsel) ; entry date : 12/4/02 (dlb) (Entered: 12/04/2002)
153 Unopposed MOTION by defendant US Olympic Committee for enlargement of time to file dispositive motions regarding employment claims up to and including 3/3/3 (pap) (Entered: 01/02/2003)
154 MOTION by plaintiff's counsel Paula Griesen to withdraw attorney Paula Greisen for the pla (pap) (Entered: 01/02/2003)
155 MINUTE ORDER : by Judge John L. Kane orders granting motion for enlargement of time to file dispositive motions regarding employment claims up to and including 3/3/3 [153−1] (cc: all counsel) ; entry date : 1/3/03 (pap) (Entered: 01/03/2003)
156 MINUTE ORDER : by Judge John L. Kane granting motion to withdraw attorney Paula Greisen for the pla [154−1] attorney Paula Dee Greisen for Mark E. Shepherd (cc: all counsel) ; entry date : 1/6/03 (dlb) (Entered: 01/06/2003)
157 Unopposed MOTION by defendant US Olympic Committee to extend time to file dispo mtns (dlb) (Entered: 02/19/2003)
158 MINUTE ORDER : by Judge John L. Kane granting motion to extend time to file dispo mtns [157−1] ; discovery ddl satisfied 1/31/03 ; disp mtn ddl set 4/2/03 (cc: all counsel) ; entry date : 2/19/03 (dlb) (Entered: 02/19/2003)
159 MOTION by defendant US Olympic Committee for summary judgment on pla's employment claims (dlb) (Entered: 04/03/2003)
160 BRIEF by defendant US Olympic Committee in support of motion for summary judgment on pla's employment claims [159−1] (dlb) (Entered: 04/03/2003)
161 MINUTE ORDER : by Judge John L. Kane regarding [159−1] dft's motion for summary judgment on pla's employment claims, pla has to 5/2/03 to respond; dft has to 5/19/03 to reply (cc: all counsel) ; entry date : 4/4/03 (dlb) (Entered: 04/04/2003)
162 SUPPLEMENT by defendant US Olympic Committee to brief in support of [160−1] dft's motion for summary judgment on pla's employment claims [159−1] (dlb) (Entered: 04/04/2003)
163 Unopposed MOTION by plaintiff Mark E. Shepherd to extend time to 6/2/03 to respond to dft's mtn for sum jgm (dlb) (Entered: 05/01/2003)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 14 of 19

05/01/2003
06/02/2003 06/17/2003 07/25/2003 02/10/2004 02/12/2004
02/20/2004 07/27/2004 06/27/2005 07/06/2005 08/17/2005
09/15/2005 09/16/2005 09/19/2005
09/21/2005
09/21/2005

164 MINUTE ORDER : by Judge John L. Kane granting motion to extend time to 6/2/03 to respond to dft's mtn for sum jgm [163−1], regarding [159−1] motion for summary judgment on pla's employment claims, regarding [139−1] motion for summary judgment on Pltf's Second and Third Claims for Relief (cc: all counsel) ; entry date : 5/2/03 (dlb) (Entered: 05/02/2003)
165 RESPONSE by plaintiff Mark E. Shepherd to motion for summary judgment on pla's employment claims [159−1] *large document (dlb) Modified on 06/03/2003 (Entered: 06/03/2003)
166 REPLY by defendant US Olympic Committee to response to motion for summary judgment on pla's employment claims [159−1] (dlb) (Entered: 06/17/2003)
167 SUPPLEMENTAL Disclosures purs to Fed.R.Civ.P. 26(E)(1) by plaintiff Mark E. Shepherd (dlb) (Entered: 07/28/2003)
168 MOTION by plaintiff Mark E. Shepherd for leave to submit recently−decided authority in support of pla's mtn for partial sum jgm and in opp to dft's mtn for sum jgm *attached to motion (dlb) Modified on 02/10/2004 (Entered: 02/10/2004)
169 MINUTE ORDER : by Judge John L. Kane granting motion for leave to submit recently−decided authority in support of pla's mtn for partial sum jgm and in opp to dft's mtn for sum jgm [168−1], regarding [140−1] motion for partial summary adjudication, supplement due by 1/20/04 (cc: all counsel) ; entry date : 2/13/04 (dlb) (Entered: 02/13/2004)
170 RESPONSE by defendant US Olympic Committee to pla's Supplemental Authority [167−1] (dlb) (Entered: 02/23/2004)
171 NOTICE of Change of counsel's firm name of Killmer, Lane &Newman, LLP by plaintiff (dlb) (Entered: 07/28/2004)
172 MOTION for Ruling or Combined Oral Argument by Plaintiff Mark E. Shepherd. (Robertson, Amy) (Entered: 06/27/2005)
173 BRIEF in Opposition re 172 MOTION for Ruling or Combined Oral Argument filed by Defendant United States Olympic Committee. (Webber, Nancy) (Entered: 07/06/2005)
174 MINUTE ORDER granting in part 172 MOTION for Ruling or Combined Oral Argument by Plaintiff Mark E. Shepherd. Oral argument set for 9/21/05 at 1:30 p.m., Ctrm A802. Argument w/be limited to the athlete issues common in this case and 03−cv−1364−JLK by Judge John L. Kane on 8/17/05. (dlb, ) (Entered: 08/17/2005)
175 NOTICE of Entry of Appearance of Christopher T. Handman by John William Cook on behalf of United States Olympic Committee (Cook, John) (Entered: 09/15/2005)
176 NOTICE of Entry of Appearance (Amended) for Christopher T. Handman as Co−Counsel by John William Cook on behalf of United States Olympic Committee (Cook, John) (Entered: 09/16/2005)
177 Dft's Submission (SUPPLEMENT) of Recently−Decided Authority in support of its response in opposition to 140 MOTION by plaintiff for partial summary adjudication by Defendant United States Olympic Committee. (Attachments: # 1 Exhibit Exhibit A (part 1 of 2)# 2 Exhibit Exhibit A (part 2 of 2))(Cook, John) (Modified on 9/20/2005 to correct linkage) (dlb, ). (Entered: 09/19/2005)
178 Minute Entry for proceedings held before Judge John L. Kane : Motion Hearing held on 9/21/2005 Denying 159 Motion for Summary Judgment filed by United States Olympic Committee, denying 92 Motion to Dismiss filed by United States Olympic Committee and taking under advisement 139 Motion for Summary Judgment filed by United States Olympic Committee and 140 Motion for Partial Summary Judgment filed by Mark E. Shepherd (Court Reporter Adrienne Whitlow.) (gms, ) (Entered: 09/23/2005)
179 ORDER denying 92 Motion to Dismiss, taking under advisement 139 Motion for Summary Judgment, taking under advisement 140 Motion for Partial Summary

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 15 of 19

10/04/2005 06/01/2006 06/05/2006 06/05/2006 06/05/2006 06/08/2006 06/09/2006 06/13/2006
06/13/2006 06/14/2006
06/15/2006 06/20/2006 06/21/2006 06/22/2006 07/12/2006

Judgment, denying 159 Motion for Summary Judgment pursuant to the minutes by Judge John L. Kane on 9/21/05. (gms, ) (Entered: 09/23/2005)
180 TRANSCRIPT of Motions Hearing held for Case No. 99−cv−02077−JLK and 03−cv−01364−JLK on September 21, 05 before Judge John L. Kane, Jr. Prepared by: Adrienne Whitlow, CSR. Pages: 1 − 61. (certified copy) Text Only Entry − Available in paper format at the Clerk's Office (dlb, ) (Entered: 10/06/2005)
181 MOTION to Withdraw as Attorney of Virginia S. Morgan by Defendant United States Olympic Committee. (Attachments: # 1 Proposed Order (PDF Only) Granting Motion to Withdraw)(Morgan, Virginia) (Entered: 06/01/2006)
182 ORDER granting 181 Motion to Withdraw Attorney Virginia Starr Morgan as counsel for MOTION to Defendant United States Olympic Committee. Signed by Judge John L. Kane on 6/5/06. (dln, ) (Entered: 06/05/2006)
183 MOTION for Trial on Plaintiff's Employment Claims by Plaintiff Mark E. Shepherd. (Killmer, Darold) (Entered: 06/05/2006)
184 MOTION for Ruling on 140 Motion for Partial Summary Judgment, 139 Motion for Summary Judgment by Plaintiff Mark E. Shepherd. (Robertson, Amy) (Entered: 06/05/2006)
185 MINUTE ORDER re: 183 MOTION for Trial on Plaintiff's Employment Claims by Plaintiff. Defendants shall repond by 6/15/06. No reply is necessary by Judge John L. Kane on 6/7/06. (dln, ) (Entered: 06/08/2006)
186 MOTION to Substitute Motion for Ruling by Plaintiff Mark E. Shepherd. (Attachments: # 1 Motion for Ruling# 2 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 06/09/2006)
187 ORDER: 186 MOTION to Substitute Motion for Ruling by Plaintiff is granted and the same is accepted for filing. 184 MOTION for Ruling on 1. 140 Motion for Partial Summary Judgment, 139 Motion for Summary Judgment by Plaintiff terminated. Signed by Judge John L. Kane on 6/13/06. (dln, ) (Entered: 06/13/2006)
188 MOTION for Ruling on 139 MOTION by defendant US Olympic Committee for summary judgment on Pltf's Second and Third Claims for Relief and 140 MOTION by plaintiff for partial summary adjudication by Plaintiff Mark E. Shepherd. (dln, ) (Entered: 06/13/2006)
189 ORDER granting as specified 188 MOTION for Ruling on 139 MOTION by defendant US Olympic Committee for summary judgment on Pltf's Second and Third Claims for Relief and 140 MOTION by plaintiff for partial summary adjudication by Plaintiff . Signed by Judge John L. Kane on 6/14/06. (dln, ) (Entered: 06/14/2006)
190 RESPONSE to Motion re 183 MOTION for Trial on Plaintiff's Employment Claims filed by Defendant United States Olympic Committee. (Webber, Nancy) (Entered: 06/15/2006)
191 Joint MOTION For Extension of Time to Submit Proposed Orders by Defendant United States Olympic Committee. (Attachments: # 1 Proposed Order (PDF Only) Order)(Cook, John) (Entered: 06/20/2006)
192 ORDER granting to 7/12/06 191 Joint MOTION For Extension of Time to Submit Proposed Orders by Defendant . Signed by Judge John L. Kane on 6/21/06. (dln, ) (Entered: 06/21/2006)
193 NOTICE of Entry of Appearance by Anne Hall Turner on behalf of United States Olympic Committee (Turner, Anne) (Entered: 06/22/2006)
194 NOTICE re 145 Brief in Opposition to Motion, 141 Brief in Support of Motion, 146 Brief in Opposition to Motion, 149 Reply to Response to Motion, 188 MOTION for Ruling on 140 Motion for Partial Summary Judgment, 139 Motion for Summary Judgment, 189 Order on Motion for Ruling,, 148 Reply to Response to Motion, 139 Motion for Summary Judgment Submission of Proposed Order by Plaintiff Mark E. Shepherd (Attachments: # 1 Proposed Order (PDF

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 16 of 19

07/12/2006 11/16/2006
11/21/2006 11/22/2006 11/30/2006 01/02/2007 01/02/2007
01/03/2007 01/04/2007
01/10/2007 01/10/2007
01/10/2007 01/10/2007 02/01/2007
02/01/2007 02/06/2007 02/07/2007

Only))(Robertson, Amy) (Entered: 07/12/2006)
195 NOTICE re 189 Order on Motion for Ruling, by Defendant United States Olympic Committee (Attachments: # 1 Proposed Order (PDF Only) Defendants' Proposed Order)(Cook, John) (Entered: 07/12/2006)
196 MEMORANDUM OPINION AND ORDER: 139 MOTION by defendant US Olympic Committee for summary judgment on Pltf's Second and Third Claims for Relief and 140 MOTION by plaintiff for partial summary adjudication are granted. Signed by Judge John L. Kane on 11/16/06. (dln, ) (Entered: 11/16/2006)
197 MINUTE ORDER : Status Conference set for 12/7/2006 10:00 AM in Courtroom A 802 before Judge John L. Kane. Parties to file Joint Status Report by 12/5/06 by Judge John L. Kane on 11/21/06. (dln, ) (Entered: 11/21/2006)
198 NOTICE of Entry of Appearance by Jeffrey S. George on behalf of United States Olympic Committee (George, Jeffrey) (Entered: 11/22/2006)
199 MINUTE ORDER: RESETTING Status Conference for 1/4/2007 10:30 AM in Courtroom A 802 before Judge John L. Kane by Judge John L. Kane on 11/30/06. (dln, ) (Entered: 11/30/2006)
200 NOTICE of Entry of Appearance by Ari Reuben Krichiver on behalf of all plaintiffs (Krichiver, Ari) (Entered: 01/02/2007)
201 Joint STATUS REPORT by Plaintiff Mark E. Shepherd, Defendants United States Olympic Committee, International Olympic Committee. (Attachments: # 1 Exhibit Stipulation Concerning Vie Sports Marketing, Inc.'s ADA and Rehabilitation Act Claims)(George, Jeffrey) (Entered: 01/02/2007)
202 NOTICE of Entry of Appearance of Mari Newman by Mari Anne Newman on behalf of Mark E. Shepherd (Newman, Mari) (Entered: 01/03/2007)
203 Minute Entry for proceedings held before Judge John L. Kane : Status Conference held on 1/4/2007.Status Report due by 4/15/2007 as to both cases. Status Conference set for 6/25/2007 09:30 AM before Judge John L. Kane. (Court Reporter Adrienne Whitlow.) (jjh, ) (Entered: 01/04/2007)
204 NOTICE of Filing Proposed Direction of Final Judgment Pursuant to F.R.C.P. Rule 54(b) by Plaintiff Mark E. Shepherd (Attachments: # 1 Proposed Document Judgment)(Robertson, Amy) (Entered: 01/10/2007)
205 Direction of Final Judgment Pursuant to FRCP Rule 54(b) (ORDER): Judgment be entered on Counts II and III of the Third Amended Complaint against Plaintiff. Signed by Judge John L. Kane on 01/10/07. (jjh, ) (Modified on 1/10/2007 to clarify entry is an Order not Judgment) (lamsl, ). (Entered: 01/10/2007)
206 Docket Annotation re: 205 Direction of Final Judgment. This entry was modified to clarify it is not the Final Judgment. Text only entry − no document attached. (lamsl, ) (Entered: 01/10/2007)
207 JUDGMENT entered against Plaintiff on Counts II and III of the Third Amended Complaint. Signed on 01/10/07. (jjh, ) (Entered: 01/10/2007)
208 Minute ORDER denying without prejudice Plaintiff's 183 Motion for Trial on Plaintiff's Employment Claims, by Judge John L. Kane on 02/01/07.(jjh, ) Modified on 2/1/2007 to specify it was denied without prejudice (jjh, ). (Entered: 02/01/2007)
209 Docket Annotation re: 208 Order on Motion for Trial. Modified to specify that motion was denied without prejudice. Text only entry − no document attached. (jjh, ) (Entered: 02/01/2007)
210 NOTICE OF APPEAL as to 196 Memorandum &Opinion, 207 Clerk's Judgment Joint Notice of Appeal by Plaintiff Mark E. Shepherd (Robertson, Amy) (Entered: 02/06/2007)
211 LETTER re Appeal to all counsel advising of the transmittal of the 210 Joint Notice of Appeal filed by Mark Shepherd to the U.S. Court of Appeals. (Retained

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 17 of 19

02/07/2007
02/09/2007 02/13/2007 02/16/2007 02/20/2007 03/13/2007 04/13/2007 04/13/2007 04/27/2007 07/02/2007
07/02/2007 07/02/2007
07/02/2007

counsel; Fees not paid) (Attachments: # 1 Joint Notice of Appeal# 2 Docket Sheet)(bjr, ) (Entered: 02/07/2007)
213 TRANSCRIPT of Status Conference filed for dates of 01/04/07 before Judge John L. Kane, re 210 Notice of Appeal Prepared by: Adrienne Whitlow. Pages: 1−12. (certified copy) Text Only Entry − Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or, in the case of a transcript prepared from a digital−audio taped record, the courtroom deputy for the judicial officer. (bjr, ) (Entered: 02/12/2007)
212 USCA Case Number 07−1056 for 210 Notice of Appeal filed by Mark E. Shepherd. The appellant has 30 days to either pay the $455.00 filing fee or file an application for leave to proceed without prepayment of fees to the district court.(bjr, ) (Entered: 02/12/2007)
214 USCA Appeal Fees (USCA Case No. 07−1056); received $ 455 receipt number 274436 re 210 Notice of Appeal filed by Mark E. Shepherd (bjr, ) (Entered: 02/14/2007)
215 TRANSCRIPT ORDER FORM re 210 Notice of Appeal by Plaintiff Mark E. Shepherd (Robertson, Amy) (Entered: 02/16/2007)
216 LETTER TO USCA and all counsel certifying the record is complete as to 210 Notice of Appeal filed by Mark E. Shepherd. ( Appeal No. 07−1056) (bjr, ) (Entered: 02/20/2007)
217 MINUTE ORDER Setting Status Conference for 7/2/2007 09:30 AM in Courtroom A 802 before Judge John L. Kane. Status Conference set for 06/25/07 is vacated by Judge John L. Kane on 03/13/07. (jjh, ) (Entered: 03/13/2007)
218 NOTICE Joint Status Report by Plaintiff Mark E. Shepherd, Defendants United States Olympic Committee, International Olympic Committee (Newman, Mari) (Entered: 04/13/2007)
219 MINUTE ORDER: Matter is stayed pending continued settlement discussions. Additional Status Report due by 4/27/2007, by Judge John L. Kane on 4/13/07. (gms, ) (Entered: 04/13/2007)
220 Second STATUS REPORT by Plaintiff Mark E. Shepherd. (Newman, Mari) (Entered: 04/27/2007)
221 MINUTE ORDER setting Pretrial Conference for 12/12/2007 10:00 AM in Courtroom A 802 before Judge John L. Kane by Judge John L. Kane on 07/02/07. (Attachments: #(1) Instructions Regarding Proposed Jury Instructions #(2) Standard Jury Insructions #(3) Memorandum)(jjh, ) Modified on 7/2/2007 to clarify Attachment title (jjh, ). (Entered: 07/02/2007)
222 Docket Annotation re: 221 Order. Modified to clarify attachment title. Text only entry − no document attached. (jjh, ) (Entered: 07/02/2007)
223 Minute Entry for proceedings held before Judge John L. Kane : Status Conference held on 7/2/2007. (Civil Action Nos. 99−cv−02077−JLKand 03−cv−01364−JLK are called together for discovery purposes only. ORDERED: A 2week Jury Trial is set for February 18 29, 2008. ORDERED: The Final Trial Preparation Conference is set for 02/08/08 at 10:00 a.m. ORDERED: The Pretrial Conference is set for 12/12/07 at 10:00 a.m. Counsel are allowed to submit the Stipulated Pretrial Order on 12/12/07. If not stipulated, counsel shall submit the Pretrial Order by 12/07/07. ORDERED: Any designation of experts must be submitted on or before 09/01/07. ORDERED: Any Daubert objections must be submitted on or before 10/02/07. (Court Reporter Darlene Martinez.) (jjh, ) (Entered: 07/02/2007)
224 AMENDED Minute Entry for proceedings held before Judge John L. Kane : Status Conference held on 7/2/2007. (Civil Action Nos. 99−cv−02077−JLKand 03−cv−01364−JLK are called together for discovery purposes only. ORDERED: A 2week Jury Trial is set for February 19−29, 2008 at 8:30am. ORDERED: The Final Trial Preparation Conference is set for 02/08/08 at 10:00 a.m. ORDERED: The Pretrial Conference is set for 12/12/07 at 10:00 a.m. Counsel are allowed to submit the Stipulated Pretrial Order on 12/12/07. If not stipulated, counsel shall submit the

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 18 of 19

07/02/2007
07/24/2007 07/25/2007 07/26/2007 11/01/2007 11/06/2007
11/07/2007 11/15/2007 11/20/2007 11/21/2007 12/04/2007
12/04/2007 01/07/2008 01/10/2008 01/16/2008

Pretrial Order by 12/07/07. ORDERED: Any designation of experts must be submitted on or before 09/01/07. ORDERED: Any Daubert objections must be submitted on or before 10/02/07. (Court Reporter Darlene Martinez.) (jjh, ) (Entered: 07/02/2007)
225 Utility Setting/Resetting Deadlines/Hearings: Final Pretrial Conference set for 2/8/2008 10:00 AM before Judge John L. Kane., Jury Trial set for 2/19/2008 08:30 AM before Judge John L. Kane. Trial Preparation Conference set for 12/12/2007 at 10:00 AM before Judge John L. Kane. Text only entry − no document attached. Pursuant to Minutes of 07/02/07. (jjh, ) (Entered: 07/02/2007)
226 MOTION to Withdraw as Attorney by Plaintiff Mark E. Shepherd. (Krichiver, Ari) (Entered: 07/24/2007)
227 Proposed MOTION for Order to Withdraw as Counsel of Record by Plaintiff Mark E. Shepherd. (Krichiver, Ari) (Entered: 07/25/2007)
228 ORDER granting 226 Motion to Withdraw as Attorney. Attorney Ari Reuben Krichiver terminated. Signed by Judge John L. Kane on 07/26/07.(jjh, ) (Entered: 07/26/2007)
229 ORDER REFERRING CASE to Magistrate Judge Kristen L. Mix. Signed by Judge John L. Kane on 11/1/07. (sss, ) (Entered: 11/01/2007)
230 ORDER reassigning Order of Reference to Magistrate Judge Michael E. Hegarty. The Order of Reference to Magistrate Judge Mix (doc. #229), entered on November 1, 2007, is VACATED. Signed by Judge John L. Kane on 11/6/07. (sss, ) (Entered: 11/06/2007)
231 MINUTE ORDER: Counsel are directed to conference together and then contact theCourt to obtain a date for a Settlement Conference on 11/13/07, by Magistrate Judge Michael E. Hegarty on 11/7/07. (sss, ) (Entered: 11/07/2007)
232 MINUTE ORDER: Settlement Conference set for 11/20/2007 08:00 AM in Courtroom C203 before Magistrate Judge Michael E. Hegarty, by Magistrate Judge Michael E. Hegarty on 11/15/07. (sss, ) (Entered: 11/15/2007)
233 Minute Entry/Minute Order for proceedings held before Magistrate Judge Michael E. Hegarty: Status Conference held on 11/20/2007. (Court Reporter FTR − C. Coomes) (mehcd) (Entered: 11/20/2007)
234 MINUTE ORDER: Continued Settlement Conference set for 12/4/2007 09:30 AM in Courtroom C203 before Magistrate Judge Michael E. Hegarty, by Magistrate Judge Michael E. Hegarty on 11/21/07. (sss, ) (Entered: 11/21/2007)
235 Minute Entry/Minute Order for proceedings held before Magistrate Judge Michael E. Hegarty: Settlement Conference held on 12/4/2007. All future hearings set before Magistrate Judge Michael E. Hegarty and all Scheduling Order deadlines are to be vacated. (Court Reporter FTR − Cathy Coomes.) (sss, ) (Entered: 12/05/2007)
236 Minute Entry for proceedings held before Magistrate Judge Michael E. Hegarty: Settlement Conference held on 12/4/2007. Settlement was reached, a record was made, settlement conference was concluded. (sss, ) (Entered: 12/05/2007)
237 STIPULATION of Dismissal of Case With Prejudice by Plaintiff Mark E. Shepherd, Defendant United States Olympic Committee. (Attachments: # 1 Proposed Order (PDF Only))(Newman, Mari) (Entered: 01/07/2008)
238 ORDER: Complaint is dismissed with prejudice, each party to bear its attorneys fees and costs. Signed by Judge John L. Kane on 1/10/07. (sss, ) (Entered: 01/11/2008)
239 USCA Opinion and Judgment as to 210 Notice of Appeal filed by Mark E. Shepherd : The judgment of the district court is affirmed. (USCA Case No. 07−1056) (This document is not the Mandate) (Attachments: # 1 USCA Judgment, # 2 Letter)(bjr2, ) (Entered: 01/17/2008)

Case: 1:99-cv-02077-JLK-MEH As of: 06/07/2010 09:52 PM MDT 19 of 19

04/29/2008

240 MANDATE of USCA as to 210 Notice of Appeal filed by Mark E. Shepherd, 239 USCA Order and Judgment : The judgment of the district court is affirmed.(USCA Case No. 07−1056) (bjr2, ) (Entered: 04/29/2008)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-2077 MARK E. SHEPHERD, SR.,
Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE,
Defendant.
SECOND AMENDED COMPLAINT
Plaintiff Mark E. Shepherd, by and through his attorneys, Fox & Robertson, P.C., and Miller, Lane, Killmer & Greisen, LLP, hereby bring this Second Amended Complaint against Defendant United States Olympic Committee (“USOC”) for violation of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act and for breach of contract or promissory estoppel.
Jurisdiction 1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. 2. Venue is proper within this District pursuant to 28 U.S.C. § 1391. 3. A charge of employment discrimination on the basis of disability was filed with the Equal Employment Opportunity Commission (“EEOC”), within 180 days of the commission

of the unlawful employment practice alleged herein. The claims related to retaliation are like or related to the original EEOC charge and/or arise out of the allegations contained in that charge.
4. The EEOC issued a Notice of Right to Sue on October 25, 2000 and a Dismissal and Notice of Rights on November 14, 2000. All administrative prerequisites to the bringing of this action have been met.
Parties 5. Plaintiff Mark E. Shepherd is and was at all times material hereto a resident of Colorado. As a result of a spinal cord injury, Mr. Shepherd is substantially impaired in several major life activities including but not limited to walking and requires manual a wheelchair for mobility. He has a record of such impairments and is regarded by Defendant as having such impairments. 6. Defendant USOC is a federally chartered corporation, 36 U.S.C. § 220502(a), registered to do business in the State of Colorado with its principal place of business in Colorado Springs, Colorado.
Facts 7. Defendant USOC has “exclusive jurisdiction, directly or through constituent members of committees, over all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-American Games, including representation of the United States in the games; and the organization of the Olympic Games, the Paralympic Games, and the Pan-American Games when held in the United States.” 36 U.S.C. § 220503(3).
-2-

8. The USOC is charged with “obtain[ing] for the United States, directly or by delegation to the appropriate national governing body, the most competent amateur representation possible in each event of the Olympic Games [and] the Paralympic Games . . ..” 36 U.S.C. § 220503(4).
9. One of the USOC’s purposes is “to foster the development of amateur athletic facilities for use by amateur athletes and assist in making existing amateur athletic facilities available for use by amateur athletes.” 36 U.S.C. § 220503(9).
10. Another of the USOC’s purposes is “to encourage and provide assistance to amateur athletic programs and competition for amateur athletes with disabilities, including, where feasible, the expansion of opportunities for meaningful participation by such amateur athletes in programs of athletic competition for able-bodied amateur athletes.” 36 U.S.C. § 220503(13).
11. The USOC serves as the United States Paralympic Committee and is so recognized by the International Olympic Committee. United States Paralympic athletes are under the jurisdiction of the USOC.
12. Pursuant to this authority, the USOC controls many aspects of Olympic and Paralympic organization, administration, housing, training, and competition in the United States, including but not limited to managing, regulating and/or controlling the conditions of such organization, administration, housing, training, and competition. As such, the USOC operates the places of public accommodation where such organization, administration, housing, training, and competition take place.
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13. The USOC operates and, on information and belief, owns several places of public accommodation, including but not limited to the Colorado Springs Olympic Training Center in Colorado Springs, Colorado, the Lake Placid Olympic Training Center in Lake Placid, New York, and the ARCO Olympic Training Center, in Chula Vista, California.
14. Plaintiff Shepherd is an elite wheelchair basketball athlete. He can compete in elite wheelchair athletic events with and/or without reasonable accommodation. As such, he is a qualified individual with a disability as that term is used in 29 U.S.C. § 794.
15. Plaintiff competed in the 1996 Paralympic Games in Atlanta, Georgia and the 1998 World Championships in Sydney, Australia.
16. Since 1998, he has continued to compete as an elite athlete for the National Wheelchair Basketball Association (“NWBA”). He was invited to attend the 2000 Paralympic trials in 1999 but did not attend because of resistance and lack of support from the USOC.
17. He is currently competing for a space on the 2002 men’s wheelchair basketball world championship team and is identified as an elite athlete by Wheelchair Sports USA and the NWBA.
18. The USOC discriminates, directly and indirectly, against athletes with disabilities, including Mr. Shepherd, and the organizations that represent them. This discrimination includes but is not limited to that discussed in this Second Amended Complaint.
19. The USOC provides certain goods, services, facilities, privileges, advantages, and accommodations to non-disabled amateur athletes that it either does not provide to amateur athletes with disabilities, including Mr. Shepherd, or provides to such athletes in inferior
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quantities, manners and/or forms. These include but are not limited to tuition assistance and other financial support both for individual athletes, programs and organizations as well as medical insurance, eligibility for the Resident Athlete Program and other goods, services, facilities, privileges, advantages, and accommodations.
20. The USOC provides goods, services, facilities, privileges, advantages, and accommodations to organizations representing non-disabled athletes that it either does not provide to organizations representing amateur athletes with disabilities or provides to such organizations in inferior quantities, manners and/or forms.
21. The USOC improperly segregates athletes with disabilities, including Mr. Shepherd, and the organizations that represent them from non-disabled athletes and the organizations that represent them.
22. The USOC refuses to make reasonable modifications in policies and procedures that are necessary to afford its goods, services, facilities, privileges, advantages, or accommodations to athletes with disabilities, including Mr. Shepherd, and the organizations that represent them.
23. The USOC imposes and applies eligibility criteria that screen out or tend to screen out athletes with disabilities, including Mr. Shepherd, and the organizations that represent them from fully and equally enjoying its goods, services, facilities, privileges, advantages, and accommodations.
24. The USOC provides athletes with disabilities, including Mr. Shepherd, and the organizations that represent them with goods, services, facilities, privileges, advantages, and
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accommodations that are different or separate from those provided to other individuals and organizations but that are not as effective as those provided to other individuals and organizations.
25. The disparities, segregation, criteria, polices, practices and procedures referred to in this Second Amended Complaint constitute discrimination based on disability.
26. Defendant’s discrimination has caused, and will continue to cause, injury to Mr. Shepherd, including but not limited to the fact that he receives inferior support and incentives in his training program, must spend money out of pocket for benefits provided to non-disabled athletes, and is otherwise impeded in his opportunity to advance and compete on the level of an elite athlete.
27. From September 6, 1994 to May 8, 2001, Mr. Shepherd was employed by the USOC as Manager of Disabled Sports Services. He was employed by the USOC pursuant to an employment contract.
28. In his position as Manager of Disabled Sports Services, Mr. Shepherd’s duties included but were not limited to promoting awareness of disabled sports and policies with respect to disabled sports, advising and assisting the USOC on matters pertaining to international issues in disabled sports, attending and participating in disabled sporting events and serving as liaison to various disabled sports organizations.
29. Plaintiff was and is qualified for this position and other positions in that he could and can perform their essential functions with and/or without reasonable accommodation.
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30. The USOC intentionally discriminated and retaliated against Plaintiff. These acts of discrimination and retaliation include but are not limited to those described in this Second Amended Complaint.
31. The USOC failed and refused to provide Plaintiff with pay, advancements, bonuses, budgeting and support staff equal to similarly situated non-disabled employees of the USOC. For example, the USOC did not afford Mr. Shepherd perquisites equivalent to those provided similarly-situated non-disabled employees and removed him from the Senior Staff listing following the initiation of the present lawsuit.
32. The USOC failed and refused to promote Plaintiff, who was the only employee with a visible disability on the Senior Staff, to a position comparable to the able-bodied members of the Senior Staff and refused Plaintiff access to Senior Staff meetings.
33. The USOC failed and refused to make reasonable accommodations for Mr. Shepherd’s known physical limitations.
34. The USOC has retaliated and continues to retaliate against Mr. Shepherd for his activities in opposing acts and practices illegal under the Americans with Disabilities Act and because he filed the present claims and otherwise assisted and participated in proceedings under the Americans with Disabilities Act.
35. The USOC has coerced, intimidated, threatened, and/or interfered (and continues to coerce, intimidate, threaten and/or interfere) with Mr. Shepherd in the exercise and/or enjoyment of, and/or on account of his having exercised or enjoyed, and/or on account of his
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having aided or encouraged any other individual in the exercise or enjoyment of, rights granted and/or protected by the Americans with Disabilities Act.
36. The USOC’s discrimination culminated in its discriminatory and retaliatory termination of Mr. Shepherd on May 8, 2001.
37. Pursuant to its agreement with Mr. Shepherd, the USOC promised that Mr. Shepherd would be permitted to train for and participate in national and international wheelchair basketball competitions during working hours and continue to receive compensation from the USOC for such time.
38. The USOC breached this agreement by not permitting Mr. Shepherd to be compensated for any such time.
39. As such, the USOC breached its agreement with Mr. Shepherd and did not fulfil its promise to him.
40. Mr. Shepherd performed and worked for the benefit of USOC during sporting events without consideration from USOC.
41. Defendant’s discrimination, breach of contract and/or breach of its legally enforceable promise to Mr. Shepherd has caused, and will continue to cause, injury to Mr. Shepherd, including but not limited to lost wages, benefits and employment opportunities, pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.
Count I: Violation of Title I of the Americans with Disabilities Act
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42. Plaintiff realleges and incorporates by reference the allegations set forth in this Second Amended Complaint as if fully set forth herein.
43. The USOC employs more than 15 employees and is therefore an “employer” as that term is defined in 42 U.S.C. § 12111(5)(A). On information and belief, the USOC has -and has had at all times relevant to the litigation -- more than 500 employees.
44. For reasons including but not limited to those described in this Second Amended Complaint, the USOC has discriminated and continues to discriminate and retaliate against Mr. Shepherd because of his disability in regard to hiring, advancement, discharge, compensation, and other terms, conditions and privileges of employment in violation of in violation of Title I of the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq, and its implementing regulations.
45. Plaintiff has been and continues to be damaged by the USOC’s discrimination and retaliation in regard to hiring, advancement, discharge, compensation, and other terms, conditions and privileges of employment.
46. In violating the Americans with Disabilities Act, Defendant acted intentionally and with malice and/or reckless, callous and/or deliberate indifference to Plaintiff’s federally protected rights. Plaintiff is therefore entitled to compensatory and punitive damages pursuant to 42 U.S.C. § 12117.
Count II: Violation of Title III of the Americans with Disabilities Act 47. Plaintiff realleges and incorporates by reference the allegations set forth in this Second Amended Complaint as if fully set forth herein.
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48. For reasons including but not limited to those described in this Second Amended Complaint, the USOC owns, operates, leases and/or leases to places of public accommodation.
49. For reasons including but not limited to those described in this Second Amended Complaint, the USOC has discriminated and continues to discriminate against Mr. Shepherd on the basis of his disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq, and its implementing regulations.
50. Plaintiff has been and continues to be damaged by the USOC’s discrimination on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations, making prospective, injunctive relief appropriate pursuant to 42 U.S.C. § 12188.
Count III: Violation of The Rehabilitation Act 51. Plaintiff realleges and incorporates by reference the allegations set forth in this Second Amended Complaint as if fully set forth herein. 52. The USOC and its programs and activities receive -- and have received at all times relevant to the litigation -- federal financial assistance as that term is used in 29 U.S.C. § 794. 53. For reasons including but not limited to those described in this Second Amended Complaint, the USOC has excluded Plaintiff from participation in, denied him the benefits of, and subjected him to discrimination in employment, programs and activities solely by reason of his disability in violation of 29 U.S.C. § 794 and its implementing regulations.
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54. Plaintiff has been and continues to be damaged by the USOC’s exclusion, denial and discrimination referred to in this Second Amended Complaint.
55. In violating the Rehabilitation Act, Defendant acted intentionally, maliciously, and/or with reckless, callous and/or deliberate indifference to Plaintiff’s federally protected rights.
Count IV: Breach of Employment Contract or, in the Alternative, Promissory Estoppel 56. Plaintiff realleges and incorporates by reference the allegations set forth in this
Second Amended Complaint as if fully set forth herein. 57. Mr. Shepherd was employed by the USOC pursuant to an agreement the terms of
which that took both written and oral form. Pursuant to this agreement, the USOC offered Mr. Shepherd employment on terms that included but were not limited to permitting Mr. Shepherd to train for and participate in athletic competitions on company time.
58. Mr. Shepherd accepted the USOC’s offer to allow him to complete on company time and was employed by the USOC pursuant to this agreement and promise.
59. The USOC breached that agreement by refusing to permit Mr. Shepherd to train for or participate in athletic competitions on company time.
60. The USOC promised that Mr. Shepherd could train for and participate in athletic competitions on company time as part of his employment with the USOC.
61. The USOC should reasonably have expected that this promise would induce Mr. Shepherd to accept employment and to anticipate being able to train for and participate in athletic competitions on company time.
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62. Mr. Shepherd reasonably relied on the USOC’s promise to his detriment, including foregoing other employment.
63. Mr. Shepherd has been harmed by the USOC’s breach of contract and failure to abide by its promise.
64. Injustice can be avoided only by enforcement of USOC’s promise. PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully prays: 1. That this Court assume jurisdiction; 2. That this Court declare the actions of Defendant USOC described in this Second Amended Complaint to be in violation of Titles I and III of the Americans with Disabilities Act and the Rehabilitation Act and to constitute breach of contract or breach of a legally enforceable promise. 3. That this Court award Mr. Shepherd damages for backpay, front pay, benefits and other compensation in an amount to be proved at trial; 4. That this Court award Mr. Shepherd compensatory damages in an amount to be proved at trial; 5. That this Court award Mr. Shepherd punitive damages in an amount commensurate with Defendant’s ability to pay and sufficient to deter future illegal conduct; 6. That this Court enter an injunction ordering Defendant to provide him full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations in a
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fashion to be specified following trial and award any further injunctive or equitable relief allowed by law;
7. That this Court award Mr. Shepherd his reasonable attorneys’ fees and costs; and 8. That this Court award such additional or alternative relief as may be just, proper and equitable. JURY DEMAND: Plaintiff demands a jury on all issues which can be heard by a jury. Respectfully submitted,
FOX & ROBERTSON, P.C.

Dated: October 9, 2001
Address of Plaintiff Mark E. Shepherd:
8418 Winncrest Lane Colorado Springs, CO 80920

Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700 Darold Killmer Paula Greisen Andrea Faley Miller, Lane, Killmer & Greisen, LLP 730 17th Street, Suite 600 Denver, CO 80202 303.534.6400 Attorneys for Plaintiff
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-2077 MARK E. SHEPHERD, SR.,
Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE, et al.,
Defendants.
PLAINTIFF’S SUPPLEMENTAL BRIEF IN SUPPORT OF HIS MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56(a)
Plaintiff Mark Shepherd, Sr., hereby submits this Supplemental Brief in Support of His Motion for Partial Summary Judgment Pursuant to Fed. R. Civ. P. 56(a).
BACKGROUND In Plaintiff’s Motion for Partial Summary Judgment Pursuant to Fed. R. Civ. P. 56(a) (“Plaintiff’s Opening Brief”), Plaintiff argued that revenues received by the United States Olympic Committee (“USOC”) from the commemorative coin program constitute federal financial assistance for purposes of the Rehabilitation Act. Plaintiff’s Opening Brief at 20-21. Pursuant to the commemorative coin program, the United States government mints and sells coins, revenues from which are given to the USOC. The commemorative coin program has continued over the years through the passage of various Congressional Acts, including the “Doug Barnard, Jr.--1996 Atlanta Centennial Olympic Games Commemorative Coin Act,” Pub.

L. 102-390, 106 Stat. 1620 (1992) (the “1996 Act”) (attached hereto as Exhibit 1), and the “2002 Winter Olympic Commemorative Coin Act,” Pub. L. 106-435, 114 Stat. 1916 (2000) (the “2002 Act”) (collectively “the Acts”) (attached hereto as Exhibit 2). The Acts require the government to pay all the costs of the program, including the costs of obtaining the gold and silver for the coins, the cost of minting the coins, and the cost of issuing the coins. 1996 Act at §§ 102-03, 105-06; 2002 Act at §§ 2-3, 5-6. The USOC pays none of these costs. The Acts further provide that the coins are to be sold at a price consisting of the face value of the coins, the cost of designing and issuing the coins, and a surcharge. 1996 Act at § 106; 2002 Act at § 6. The government can recoup its costs but cannot share in any profits of the program; all such profits are divided equally between the USOC and a third party. 1996 Act at §§ 108, 110; 2002 Act at § 7. The virtually identical preambles to the 1996 and 2002 Acts state that one of the purposes of the Acts is “to support . . . the programs of the United States Olympic Committee . . .” Preamble to 1996 Act; Preamble to 2002 Act.
ARGUMENT The Rehabilitation Act prohibits discrimination on the basis of disability by recipients of “federal financial assistance.” 29 U.S.C. § 794. Federal funding is “financial assistance” under the Rehabilitation Act if Congress intended that the funding subsidize the recipient, and is not “financial assistance” if Congress intended that the funding compensate the recipient for goods or services provided by the recipient. See DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 911 F.2d 1377, 1382 (10th Cir. 1990), cert. denied, 498 U.S. 1074 (1991). Thus, in order to determine whether revenues from the commemorative coin program constitute “financial
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assistance,” this Court must determine what Congress’s intent was in giving these revenues to the USOC.
“We presume the plain language of a statute expresses congressional intent.” In re Hamilton Creek Metro. Dist., 143 F.3d 1381, 1385 (10th Cir. 1998); see also New Mexico Cattle Growers Assoc. v. United States Fish and Wildlife Serv., 248 F.3d 1277, 1281-82 (10th Cir. 2001) (“‘[W]e will assume that Congress’s intent is expressed correctly in the ordinary meaning of the words it employs . . . .’” (citation omitted)). This cardinal principal applies in determining Congress’s intent in providing federal funding. The single case cited by the USOC, Jacobson v. Delta Airlines, Inc., 742 F.2d 1202 (9th Cir. 1984), cert. dismissed, 471 U.S. 1062 (1985), emphasizes this point:
Courts should determine whether the government intended to provide assistance or merely to compensate. The relevant intention is that of Congress . . . In short, the question of which programs are subject to the civil rights laws is a question of law, to be answered in most cases by reference to the statutory authority for the particular disbursements at issue . . .” Id. at 1210 (emphasis added); see also United States Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 607 (1986) (Holding that in determining whether funding provided pursuant to a statute constitutes “financial assistance” for purposes of the Rehabilitation Act, “the relevant starting point is the grant statute.”). Thus in this case, the Court should examine the 1996 and 2002 Acts to determine whether Congress set forth its intent in the language of those Acts. The clear language of the 1996 and 2002 Acts conclusively demonstrates that Congress intended to subsidize, not to compensate, the USOC through the commemorative coin program. Indeed, the first sentence of both the 1996 and 2002 Acts, which sets forth the purpose of each
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Act, states: “An Act to provide for the minting of commemorative coins to support . . . the

programs of the United States Olympic Committee.” Preamble to 1996 Act (emphasis added);

Preamble to 2002 Act (emphasis added). Because this language plainly expresses Congress’s

intent to subsidize the USOC, the language is conclusive and no further analysis is necessary or

appropriate. See Negonsott v. Samuels, 113 S. Ct. 1119, 1122-23 (1993) (“‘Our task is to give

effect to the will of Congress, and where its will has been expressed in reasonably plain terms,

that language must ordinarily be regarded as conclusive.’” (citation omitted)).

The USOC argues that the commemorative coin program is akin to a “profit sharing

arrangement” in which the revenues received by the USOC are essentially “royalties” to

compensate the USOC for the use of its trademarks that are protected under 36 U.S.C. § 220506.

As an initial matter, Congress did not require that the commemorative coins include any

USOC trademarks protected under 36 U.S.C. § 220506. The 1996 and 2002 Acts required that

the coins: !
!

be emblematic of the participation of athletes from the United States of America in the Olympic Games; and
include a designation of the value of the coin, an inscription of the date of the coin, and inscriptions of the words “Liberty,” “In God We Trust,” “United States of America,” and “E Pluribus Unum.”

The following marks are protected by 36 U.S.C. § 220506:

! The name “United States Olympic Committee;”
! The symbol of the International Olympic Committee, consisting of 5 interlocking rings;
! The symbol of the International Paralympic Committee, consisting of 3 TaiGeuks;

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! The symbol of the Pan-American Sports Organization, consisting of a torch surrounded by concentric rings;
! The emblem of the corporation, consisting of an escutcheon having a blue chief and vertically extending red and white bars on the base with 5 interlocking rings displayed on the chief; and
! The words “Olympic,” “Olympiad,” “Citius Altius Fortius,” “Paralympic,” “Paralympiad,” “Pan-American,” “America Espirito Sport Fraternite,” or any combination of those words.
Thus neither of the Acts require the use of USOC marks. Even had Congress required that the coins include marks protected under 36 U.S.C.
§ 220506, there is nothing in the 1996 or 2002 Acts to indicate that Congress intended the revenues as compensation for such marks. Congress stated that its intention was “to support” the USOC, not to compensate it.
In fact, the express terms of both Acts prevent Congress and the government from receiving any profits which might justify paying “royalties” to the USOC. To “compensate” by definition requires that the compensating party have received something of value. See Black’s Law Dictionary 283 (6th ed. 1990) (defining “compensate” as “to make equivalent return to”). Courts frequently focus on whether the government receives value from a transaction with a funding recipient to determine whether Congress intended the funding as a subsidy or as compensation. See, e.g., DeVargas., 911 F.2d at 1382 (funding was found to be compensation in part because transaction resulted in savings of $3.5 million to government); Mass v. Martin Marietta Corp., 805 F. Supp. 1530, 1542 (D. Colo. 1992) (distinguishing between Medicare and Medicaid payments, which are subsidies because the government receives no goods or services
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in return, and compensation payments under a contract under which the government receives goods and services); Tanberg v. Weld County Sheriff, 787 F. Supp. 970, 974 (D. Colo. 1992) (holding that federal grants were subsidies because the government received no services in return).
In this case, no matter how successful the program is, the best that the government can do is to recover its costs. 1996 Act at §§ 108(b) & 110(a); 2002 Act at § 7(b). Once such costs are recovered, the government cannot receive any profits or surcharges from the commemorative coin program. This is why Defendant’s “profit sharing” analogy is wrong. The government is precluded by the terms of the Acts from sharing in any profits resulting from the program. Thus the government receives nothing of value, further demonstrating that Congress meant it when it said that the commemorative coin program was intended “to support” the USOC.
CONCLUSION For the reasons set forth above, the commemorative coin program revenues given to the USOC are subsidies and thus constitute “financial assistance” for purposes of the Rehabilitation Act. Respectfully submitted,
FOX & ROBERTSON, P.C.
Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street, Suite 610
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Dated: September 21, 2001

Denver, CO 80202 303.595.9700
Darold Killmer Paula Greisen Andrea Faley Miller, Lane, Killmer & Greisen, LLP 730 17th Street, Suite 600 Denver, CO 80202 303.534.6400
Attorneys for Plaintiff

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 Nos. 07-1053 & 07-1056 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SCOT HOLLONBECK, JOSE ANTONIO INIGUEZ, and JACOB WALTER JUNG HO HEILVEIL, Plaintiffs-Appellants,
v.
UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, Defendant-Appellee.
and
MARK E. SHEPHERD, SR., Plaintiff-Appellant,
v.
UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, Defendant-Appellee.

On Appeal from the United States District Court for the District of Colorado The Honorable John L. Kane, United States District Judge Civil Action Nos. 99-cv-2077-JLK & 03-cv-1364-JLK

APPELLANTS’ REPLY BRIEF

Respectfully submitted,
Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Appellants.

Kevin W. Williams Legal Program Director Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Attorney for Appellants Hollonbeck, Iniguez and Heilveil.

TABLE OF CONTENTS
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. The Athlete Plaintiffs Are Otherwise Qualified for the Athlete Support Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. Denying Benefits to Paralympic Athletes That Are Provided to Pan American and Olympic Athletes Violates Section 504. . . . . . . . . . . 7
A. Section 504 Mandates Meaningful Access to, and Equal Opportunity to Participate in or Benefit from, the Benefits and Services of a Recipient of Federal Funding. . . . . . 7
B. The USOC Does Not Provide Equal Opportunity or Meaningful Access to its Athlete Support Programs for Elite Athletes with Disabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. Denying Athlete Support Programs to Paralympic Athletes is a Proxy for Disability Discrimination. . . . . . . . . . . . . . 14
D. Patton and Choate Do Not Permit The USOC to Deny Athlete Support Programs to Paralympic Athletes . . . . . . . . . . . . . . . . . . . . 17
III. The USOC’s Separate Benefits Argument Fails . . . . . . . . . . . . . . . . . . . . . 20
A. The Separate Benefits Argument is Based on a False Premise . . . . 21
B. Separate Benefits Are Prohibited By Section 504 Because the USOC Has Not Demonstrated That it is Necessary in Order to Provide Benefits That Are As Effective As Those Provided Others . . . . . . . . . . . . . . . . . . . . . . 22
C. The USOC’s Separate Benefits Argument is a Pretext . . . . . . . . . . 22
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D. Even If Separate Benefits Programs Were, Theoretically, Permitted, the USOC Could Not Provide Systematically Inferior Benefits to Paralympic Athletes . . . . . . . . . . . . . . . . . . . . . 24
E. The Prohibition on Discrimination among Equivalent Programs for Disabled and Nondisabled Participants Does Not Require Equal Funding Across All Programs . . . . . . . . . . . . . . 29
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Certificate Regarding Length of Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Addendum Tab 1: 45 C.F.R. § 84.52(a)(2), 42 Fed. Reg. 22676, 22685 (June 3, 1977) Tab 2: 45 C.F.R. § 85.51(b)(1)(ii), 43 Fed. Reg. 2132, 2138 (January 13, 1978)
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TABLE OF AUTHORITIES
Cases
Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9, 17-19
Asbury v. Brougham, 866 F.2d 1276 (10th Cir.1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14
Bass v. City of Orlando, 57 F. Supp. 2d 1318 (M.D. Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Castellano v. City of New York, 142 F.3d 58 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28-29, 31
Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10, 19
Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491 (W.D. Wash. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-26
Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Fobar v. City of Dearborn Heights, 994 F. Supp. 878 (E.D. Mich. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 31
John Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27, 31
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Klinger v. Department of Corrections, 107 F.3d 609 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 30-31
Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
McFadden v. Grasmick, 485 F. Supp. 2d 642 (D. Md. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
McWright v. Alexander, 982 F.2d 222 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
Patton v. TIC United Corp., 77 F.3d 1235 (10th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19
Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-26
Sharpvisions, Inc. v. Borough of Plum, 475 F. Supp. 2d 514 (W.D. Pa. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Statutes
Title IX of the Education Amendments of 1972 20 U.S.C. § 1681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
The Rehabilitation Act of 1973 Section 504, 29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
The Americans with Disabilities Act of 1990 42 U.S.C. § 12131 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 12183(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Regulations 28 C.F.R. § 41.51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 22
28 C.F.R. § 41.58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
34 C.F.R. § 106.41(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 31
45 C.F.R. § 84.52(a)(2), 42 Fed. Reg. 22676, 22685 (June 3, 1977) . . . . . . . . . . 11
45 C.F.R. § 85.51(b)(1)(ii), 43 Fed. Reg. 2132, 2138 (January 13, 1978) . . . . . . 11
Legislative History S. Rep. No. 105-325 (1998) 1998 WL 604018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Other Authorities Linda Toms Barker and Vida Maralani, “Challenges and Strategies of Disabled Parents: Findings From a National Survey of Parents with Disabilities,” Berkeley Planning Associates (July 1997) . . . . . . . . . . . . . . . . . . . 27
Mitchell P. LaPlante, et al., “Families with Disabilities in the United States,” 8 Disability Statistics Report, Nat’l Inst. on Disability and Rehabilitation Report No. ED-OSERS-96-12, Univ. of Cal. San Francisco (Sept. 1996) . . . . . . . . . . . . . . . 27
“The Pan American Games: History,” http://www.cob.org.br/pan2007/ingles/jogos_historico.asp . . . . . . . . . . . . . . . . 23
“The Pan American Games: PASO,” http://www.cob.org.br/pan2007/ingles/jogos_odepa.asp . . . . . . . . . . . . . . . . . . . 23
“Prevalence of Disability by Age, Sex, Race, and Hispanic Origin: 2002,” http://www.census.gov/hhes/www/disability/sipp/disab02/ds02t1.pdf. . . . . . . . 29
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USA Track & Field 2007 Competition Rules, http://www.usatf.org/about/rules/2007/2007USATFRules.pdf . . . . . . . . . . . . . . 12 Webster’s Third New International Dictionary Unabridged (2002) . . . . . . . . . . . . 8
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INTRODUCTION Appellees’ brief is long on adjectives -- “high-pitched,” “sprawling,” “newly-minted”1 -- but short on substance, presenting a series of unsupported facts and meritless legal arguments to defend the policy of the United States Olympic Committee (“USOC”) of providing its Athlete Support Programs to two of the three teams for which it is responsible, denying them only to the one team that consists entirely of athletes with disabilities. The USOC’s brief confirms that it is responsible for the U.S. teams in the Olympic, Pan American and Paralympic Games, not amateur athletes in general. (USOC Br. at 39.) Paralympic athletes are, thus, “otherwise qualified” for benefits offered to participants in the other two Games. The mere fact that the Olympics are technically open to individuals with disabilities does not provide the meaningful access required by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), and does not, therefore justify the categorical exclusion of Paralympic athletes from the Athlete Support Programs. Finally, where a single entity administers separate but equivalent programs for disabled and nondisabled individuals, it cannot provide benefits to the latter that it does not provide -- or provides in systematically inferior amounts -- to the former.
1 Brief for Appellees (“USOC Brief” or “USOC Br.”) at 19, 42, 25. -1-

Appellants Mark Shepherd, Scot Hollonbeck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil (the “Athlete Plaintiffs”) begin by summarizing the key undisputed facts and identifying several unsupported assertions on which the USOC relies in its brief.
The parties agree that the scope of the USOC’s responsibility is organizing, financing and controlling U.S. participation in the Olympic, Pan American, and Paralympic Games. (USOC Br. at 39.) The teams for which the USOC asserts responsibility will be referred to herein as “The International Teams.”
The parties agree that “[t]he Paralympics are the equivalent of the Olympic Games for the physically challenged.” (JA at 167, 302.) Indeed, Congress has stated that the Paralympics are “the Olympics for disabled amateur athletes.” S. Rep. No. 105-325 at 2 (1998), 1998 WL 604018.
Contrary to the USOC’s assertion, there is no evidence that Pan American Athletes are “almost always the same athletes” as Olympic athletes. (See USOC Br. at 7 n.2.) This assertion is not only unsupported within or outside the record in this case -- the USOC offers no citations for it -- it also requires the implausible assumption that Olympic level sprinters, swimmers, or skaters, for example, spend their off-season not training for their own sport but pursuing Pan American medals in non-Olympic sports like bowling or water skiing.
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There is no evidence that the USOC provides separate benefits for separate programs. The only evidence in the record is that the USOC administers a single benefits program: the Athlete Support Programs. (JA at 110.) This program is made available to participants on two of the three International Teams: Olympic and Pan American. There is no evidence of separate Pan American benefits; those athletes are eligible for the Athlete Support Programs just as Olympic athletes are. And there is no evidence of separate Paralympic benefits: those athletes are not eligible for benefits at all.2 Thus, when the USOC states that it “operates . . . a separate Paralympic Team benefits package . . .” (USOC Br. at 40), this is unsupported in the record. If such a program exists, it was the USOC’s decision not to produce evidence of it in Shepherd v. United States Olympic Committee, No. 07-1056 -- but instead to defend the pure legal position that it has the right to deny benefits to Paralympic athletes -- and to move to dismiss before discovery in
2 Paralympic athletes were not eligible for any Athlete Support Programs during the period relevant to the events in the record. After the Shepherd litigation commenced and after the Athlete Plaintiffs had already won a number of Paralympic medals for which they were not compensated, Paralympic athletes became eligible for one small part of the Athlete Support Programs: they are eligible to receive monetary rewards for medals in amounts lower than those afforded Olympic athletes but similar to those awarded Pan American athletes. Compare JA at 103-04 with JA at 115. There is no evidence of a separate benefit program.
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Hollonbeck v. United States Olympic Committee, No. 07-1053. (See Appellants’ Consolidated Opening Brief (“Athletes’ Br.”) at 4-5, 7.)
There is no evidence that the USOC excludes Paralympic athletes from the Athlete Support Programs to promote U.S. standing or obtain the best delegation of athletes for international competition. (See USOC Br. at 6, 38.) The USOC has a bright line rule: Olympic and Pan American athletes are eligible for Athlete Support Programs; Paralympic athletes are not. The USOC presented no evidence of any more nuanced analysis concerning the use of funds to promote U.S. teams. the USOC’s record citations for these points are to a recitation of medal statistics without any explanation of how they influenced funding decisions (JA at 240-45) and a portion of counsel’s oral argument on summary judgment (JA 486-88).
ARGUMENT I. The Athlete Plaintiffs are Otherwise Qualified for the Athlete Support
Programs. The USOC has done precisely what the Supreme Court told it not to do. In limiting its benefits to Olympians, it has “defined [its benefits] in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled.” See Alexander v. Choate, 469 U.S. 287, 301 (1985). Indeed, the effort the USOC has to put into this act of redefinition
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underscores how improper it is. First, the USOC ignores the definition that would flow naturally from the category that the USOC itself insists is the most salient: the athletes on the International Teams (see USOC Br. at 39), and defines eligibility only by membership on the Olympic team. Next, the USOC takes what it called -- pre-litigation -- its “Athlete Support Programs” (see JA at 110), and relabels them “Olympic Team benefits.” (See, e.g., USOC Br. at 3, 14-21.) Finally, since it is inconvenient for this new label that Pan American athletes are also qualified for “Olympic Team benefits,” the USOC declares -- without support -- that Pan American athletes are “almost always the same athletes” as Olympic athletes. (USOC Br. at 7 n.4.)
After relabeling its benefits, artificially limiting their scope to Olympic athletes, and counterfactually declaring all Pan American athletes to be Olympic athletes, the USOC declares circularly that it does not constitute discrimination to limit “Olympic Team benefits” to the Olympic team. Both parties -- and Congress -- agree, however, that the Paralympics are the equivalent of the Olympics and Congress assigned the USOC responsibility for all three International Teams. Thus, the proper qualifying criterion is membership on one of those teams, a criterion Paralympic athletes meet.
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This conclusion defeats the USOC’s assertion that it does not discriminate against Paralympians on the basis of disability but rather “because they -- like more than 99% of the general population -- are not training for the Olympic team.” (USOC Br. at 15.) The USOC’s responsibility does not extend to the general population but rather is limited to the International Teams which, again, include the Paralympics. This argument makes as much sense as a Denver law firm refusing to hire lawyers with gray hair, and asserting that they do not discriminate on the basis of age because the gray-haired lawyers who it refused to hire are treated the same as the over 99% of the population of Colorado who do not have law licenses. The relevant universe is, of course, lawyers, not the population of the entire state, just as here the relevant universe consists of the International Teams, not the population of the United States, athlete and couch potato alike.3
The USOC’s example of a special benefits package for active-duty soldiers or foot-patrol police officers suffers from a similar analytical flaw. (See USOC Br. at 30-31.) In neither case is there -- at least in the example constructed by the USOC -- an equivalent but disabled group that is systematically denied those
3 Likewise, it is clear that -- within the relevant universe as defined by the USOC (see USOC Br. at 39), limiting benefits to Olympic athletes “has the effect” of discriminating on the basis of disability. See 28 C.F.R. § 41.51(b)(3)(i). It is not relevant that it screens out 99% of the American population.
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benefits. For example, if a city had two sets of police officers, one who patrolled on foot, while another patrolled in wheelchairs, but provided benefits only to the former, we would easily recognize the situation as discriminatory. II. Denying Benefits to Paralympic Athletes That Are Provided to Pan
American and Olympic Athletes Violates Section 504. A. Section 504 Mandates Meaningful Access to, and Equal
Opportunity to Participate in or Benefit from, the Benefits and Services of a Recipient of Federal Funding. The USOC attempts improperly to restrict the requirements of Section 504, asserting that it only requires “evenhanded treatment” or the “same access” for individuals with disabilities. (See, e.g., USOC Br. at 12, 52.) This proposition is essential to the success of its argument, because the Olympics and Pan American Games are effectively closed to most elite disabled athletes, especially those with mobility disabilities. Thus, the USOC’s policy of offering benefits only to athletes on those two teams -- and denying them athletes in the third, all-disabled, of the International Teams -- is only defensible if Section 504’s mandate is limited to technical access rather than meaningful access. Throughout its brief, the USOC attempts to contrast the ostensibly barebones requirements of Section 504 with what it portrays as the “unique”4 and
4 See, e.g., USOC Br. at 8, 13, 25, 33. -7-

presumably more onerous requirements of Title IX of the Education Amendments
of 1972, 20 U.S.C. § 1681 (“Title IX”). The USOC labels this “unique”
requirement “parity” -- often followed by a hyphen and the word “like” in order to increase the aura of strangeness.5 The word “parity” is not found in Title IX’s
statutory or regulatory language, however, and it is not, in any event, an alien concept: “parity” means simply “equality,”6 a concept that is common to Section
504, Title IX, and other antidiscrimination statutes.
As part of its effort to use the alleged contrast with Title IX to water down
Section 504, the USOC asserts that “the inquiry under [Title IX] is necessarily
much different than it is with any other anti-discrimination statute. Thus, the
[Title IX] regulations try to guarantee ‘equality’ by requiring that a college
‘provide equal opportunities for members of both sexes.’” (USOC Br. at 37-38 (quoting 34 C.F.R. § 106.41(c)).)7 According to the USOC, Title IX is irrelevant
5 See id. at 8, 11, 25. 6 See Webster’s Third New International Dictionary 1642 (2002) (“the quality or state of being equal”). 7 The reason Title IX inquiry is “much different,” per the USOC, is that, “unlike all other anti-discrimination statutes -- including [Section 504] -- the [Title IX] regulations recognize that there are many times in which it will be necessary to segregate along strictly gendered lines.” USOC Br. at 37. This is incorrect. As explained in greater detail below, where a defendant can
(continued...) -8-

to the Court’s analysis here because it requires “equal opportunity” while Section 504 requires only “the same access.”
To the contrary: Section 504 explicitly requires equal opportunity and meaningful -- not just technical -- access. Thus while reference to Title IX precedent is helpful in this case -- in light of the similarity of the situations in which the cases arise and the fact that both Congress and this Court have noted the similarity of the two laws in scope and effect8 -- it is in no way necessary. Cases interpreting, and regulations implementing, Section 504 demonstrate that providing benefits to Olympic and Pan American athletes while denying them to Paralympic athletes constitutes illegal disability discrimination.
Section 504 requires that “an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.” Choate, 469 U.S. at 301. In Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003), this Court rejected the assertion that mere access was sufficient
7(...continued) demonstrate that it is necessary to the provision of equally effective benefits, it may provide separate benefits or services to individuals with disabilities. 28 C.F.R. § 41.51(b)(1)(iv); see infra at 21-22.
8 See Athletes’ Br. at 31-32. -9-

under the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”).9 In that case, individuals who used wheelchairs challenged the physical access at the Kansas State Fair. The state argued that because the plaintiffs had access to the fairgrounds, the ADA did not require it to provide specialized facilities designed to ensure that people with disabilities could use the restrooms or enjoy a concert. Id. at 857. This Court held: “We reject the argument that the ADA requires no more than mere physical access. Instead, we have held that the ADA requires public entities to provide disabled individuals ‘meaningful access’ to their programs and services. . . ..” Id. This Court further observed that, with the ADA, “Congress prohibited a broad, comprehensive concept of discrimination . . . includ[ing] . . . relegation to lesser services, programs, activities, benefits, and other opportunities.” Id. at 858. Here, the USOC has taken an entire category of disabled athletes who participate on International Teams and relegated them to lesser services, programs, and benefits.
There is nothing “radically new,” “newly-minted,” or “novel” (see USOC Br. at 25, 33, 34) about this right to equal opportunity and meaningful access. Section 504 regulations have required recipients to provide qualified individuals
9 Both parties agree that precedent interpreting the ADA is instructive in interpreting Section 504. See USOC Br. at 17 n.3.
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with disabilities an equal opportunity to participate in their benefits since 1977. 28 C.F.R. § 41.51(b)(1)(ii) (2007); see also 45 C.F.R. § 84.52(a)(2), 42 Fed. Reg. 22676, 22685 (June 3, 1977) (Addendum Tab 1); 45 C.F.R. § 85.51(b)(1)(ii), 43 Fed. Reg. 2132, 2138 (January 13, 1978) (Addendum Tab 2).10 The commentary to these latter regulations made clear what this meant:
[I]t is equal opportunity, not merely equal treatment, that is essential to the elimination of discrimination on the basis of handicap. Thus, in some situations, identical treatment of handicapped and nonhandicapped persons is not only insufficient but is itself discriminatory. 43 Fed. Reg. at 2134. Another helpful example appeared in the commentary to the earlier regulations: “eliminating . . . gross exclusions and denials of equal treatment is not sufficient to assure genuine equal opportunity. . . . [I]t is meaningless to ‘admit’ a handicapped person in a wheelchair to a program if the program is offered only on the third floor of a walk-up building.” 42 Fed. Reg. at 22676.
10 The Supreme Court has held that these 1978 regulations “particularly merit deference.” Consol. Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984).
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B. The USOC Does Not Provide Equal Opportunity or Meaningful Access to its Athlete Support Programs for Elite Athletes with Disabilities.
The USOC asserts that it satisfies Section 504 because the Olympics are technically open to all, that is, there is no rule barring people with disabilities. This is nonsense: athletes with mobility disabilities -- the wide variety of conditions that impair one’s ability to walk, run, jump, swim, ski, or skate -cannot, by definition, compete in most of the events of the Olympics, and do not, therefore, have meaningful access. Indeed, the USOC points to four disabled Olympic athletes over a period of 101 years, only two of whom have mobility disabilities. (See USOC Br. at 21.) It is clear that the Athlete Plaintiffs would neither be able to compete in Olympic track trials without their racing wheelchairs nor be welcome to compete in them.11 The fact that the occasional deaf or blind runner might be able to participate in an Olympic sport does not provide meaningful access for Paralympic wheelchair racers, amputee swimmers, soccer players with cerebral palsy, and other elite athletes who are unable to compete in the Olympics precisely because of their disability.
11 See, e.g., USA Track & Field 2007 Competition Rules, Rule 143(3)(a) - (f) (defining precisely the types of shoes in which racers must race), http://www.usatf.org/about/rules/2007/2007USATFRules.pdf at 57.
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The USOC’s argument that the Olympics are open to all is the equivalent of the Kansas State Fair arguing that it did not discriminate because people who use wheelchairs could get onto the fairgrounds, or a recipient of federal funding arguing that a program held on the third floor of a walk-up building was open to all. Although it’s true in each case that there is no rule barring people with disabilities and that some people with certain disabilities will be able to access the programs -- those who do not need specialized restroom facilities or concert seats, or an elevator to get to the third floor, or whose disabilities permit them to run, jump, swim, skate or ski -- this does not constitute the meaningful access and equal opportunity required by Section 504.
Providing access to some individuals with disabilities does not constitute meaningful access. The Ninth Circuit addressed this question in the context of a state benefit program that categorically excluded individuals with disabilities. Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002). The state argued that it did not violate Section 504 because many individuals with disabilities received similar benefits from the state because they were poor enough to qualify for Medicaid. Id. at 1053. The Ninth Circuit rejected this argument, holding “[t]he . . . appropriate treatment of some disabled persons does not permit [the defendant] to discriminate against other disabled people . . ..” Id. at 1054; cf. Asbury v. Brougham, 866 F.2d
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1276, 1281-82 (10th Cir.1989) (holding that evidence of a high percentage of protected-class residents could not by itself defeat an intentional housing discrimination claim). Likewise, it is illegal under both Section 504 and the ADA to construct a new building so as to be physically inaccessible to individuals who use wheelchairs. 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 41.58. That is, it is discriminatory to construct a building that is fully accessible to people who are blind or deaf but excludes people who use wheelchairs.
Ultimately, there is no need for this Court to refer to Title IX or cases interpreting that statute in order to conclude that the USOC is violating Section 504. Section 504, its regulations and the cases interpreting it all demonstrate that -- by offering Athlete Support Programs only to Olympic and Pan American athletes -- the USOC does not provide meaningful access and equal opportunity to elite disabled athletes.
C. Denying Athlete Support Programs to Paralympic Athletes is a Proxy for Disability Discrimination.
It is irrelevant that the USOC does not explicitly exclude disabled athletes from its Athlete Support Programs; excluding Paralympic athletes is a proxy for that protected class. A defendant commits discrimination by proxy when the “fit” between an excluded category and a protected class is sufficiently close that
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discrimination against the former constitutes facial discrimination against the latter. See, e.g., McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992). In this case, Paralympic athletes are the only category of athletes on International Teams that are denied eligibility for Athlete Support Programs. Because Paralympic athletes are, by definition, disabled, this is an excellent proxy for disability discrimination.
The USOC attempts to rebut this argument by asserting that it does not exclude Paralympic athletes, but rather only includes Olympic athletes, and excludes the rest of the world. (USOC Br. at 50.) First, this is simply incorrect: the USOC includes both Olympic and Pan American athletes in its Athlete Support Programs. In addition, this approach -- Olympics vs. the rest of the world -- contradicts the USOC’s own statement that it is obligated to organize, finance and control U.S. teams in the Olympics, Pan American Games, and Paralympics and not, it emphasizes, to organize, finance and control elite athletic competition or amateur athletics generally. (USOC Br. at 39.) Thus, the USOC defines the relevant universe and, within that universe, excludes Paralympic athletes.
The USOC also argues, oddly, that “the Olympic athlete classification is no proxy for disability” because some Olympic athletes are disabled. (USOC Br. at 50.) The Athlete Plaintiffs do not argue that “Olympic” is a proxy for disability
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but rather that “Paralympic” is a proxy for disability. Considering that Paralympic athletes are all disabled, this is a self-evident proposition. If the USOC meant to argue that the Paralympic classification cannot be a proxy for disability since some disabled athletes compete in the Olympics, this goes to the question of “fit.”
In one of the earliest proxy discrimination case, the Seventh Circuit held that a policy requiring women to provide advance notice of maternity leave could be a proxy for disability discrimination because it effectively discriminated against women who, due to infertility, had to adopt, a process that was not as predictable as pregnancy. McWright, 982 F.2d at 228. While this policy tended to exclude women disabled by infertility, the fit was not perfect in either direction: the policy would disadvantage nondisabled adoptive mothers, id.; and would not affect women with disabilities not affecting their fertility. The court provided other examples of “fit.” “[U]sing gray hair as a proxy for age: there are young people with gray hair (a few), but the ‘fit’ between age and gray hair is sufficiently close that they would form the same basis for invidious classification.” Id. at 228. Similarly, a policy excluding wheelchairs would “no doubt” be proxy discrimination. Id. This is so despite the fact that many people with disabilities do not need wheelchairs and would thus not be affected by such a policy.
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There are a number of cases holding that zoning classifications based on the need for on-site staff constitute proxies for disability. See, e.g., Sharpvisions, Inc. v. Borough of Plum, 475 F. Supp. 2d 514, 524-25 (W.D. Pa. 2007) (holding that definition of “group home” as up to ten persons “plus staff” was a proxy for persons with disabilities); Children’s Alliance v. City of Bellevue, 950 F.Supp. 1491, 1496 (W.D. Wash. 1997) (same with respect to the category “staffed living facilit[ies] for a group of persons, which may include both children and adults”). In each of these cases, the fact that the category singled out some people with disabilities for less favorable treatment was sufficient to conclude it constituted facial discrimination, notwithstanding that the category did not affect the many people with disabilities who do not require in-home staff.
The fact that the occasional disabled Olympic athlete may qualify for Athlete Support Programs under the current policy does not make the decision to categorically exclude Paralympic athletes anything other than a very tight fit with -- and therefore an excellent proxy for -- disability discrimination.
D. Patton and Choate Do Not Permit The USOC to Deny Athlete Support Programs to Paralympic Athletes.
This case is not one -- like Choate, 469 U.S. 287, or Patton v. TIC United Corp., 77 F.3d 1235 (10th Cir. 1996) -- in which a defendant provides benefits in
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the same quantity to everyone -- disabled and nondisabled -- but people with disabilities, because of their disabilities, tend to need more of the benefit. In Choate, the state limited the number of inpatient hospital days available to Medicaid recipients. The plaintiffs argued that because people with disabilities generally required more inpatient hospital days, this regulation affected them disproportionately. Id., 469 U.S. at 289. Similarly, in Patton, the state of Kansas capped tort damage awards for noneconomic loss at $250,000. The plaintiff in that case argued that this cap discriminated against him on the basis of disability. Id., 77 F.3d at 1246. In each case, however, there is no dispute that people with disabilities -- all of them -- got the mandated benefit. The disabled Medicaid recipients in Choate got their 14 inpatient hospital days; the disabled tort litigants in Patton were eligible for the full $250,000 in noneconomic damages. This is in stark contrast to the present case in which an entire category of elite athletes -defined by the fact that they are elite disabled athletes -- is ineligible for the Athlete Support Programs.
These cases would only apply here if the USOC allowed Paralympic athletes to be eligible for Athlete Support Programs such as Elite Athlete Health Insurance, and the Athlete Plaintiffs were arguing that, based on their disabilities, they required a more robust health insurance plan than the USOC offered. In such
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a case, Choate and Patton would mandate the result that offering the same Elite Athlete Health Insurance to Olympic, Pan American and Paralympic athletes would not violate Section 504. Those cases do not permit the USOC to deny all health insurance to Paralympic athletes while offering it to Olympic and Pan American athletes.
The USOC also makes much of a quote in Patton to the effect that Section 504 “requires only that Patton have the same access to a jury determination of damages as everyone else.” Id., 77 F.3d at 1246. The USOC repeatedly quotes the phrase “same access” in support of the concept that merely not barring disabled athletes from the Olympics constitutes the “same access” for everyone. (See, e.g., USOC Br. at 12, 23.) But, again, in Patton, all disabled litigants in fact had access to the same damages as other litigants. This Court’s understanding of the access required by Choate and Patton was explained in greater detail in Chaffin -- which the USOC does not cite -- in which it stressed that mere access was not enough. According to the USOC’s understanding of the term, the disabled plaintiffs in Chaffin had the “same access” to the restrooms and concert seats as did nondisabled attendees; that “same access” was not, however, meaningful access. Id., 348 F.3d at 857.
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The USOC also relies on the case of McFadden v. Grasmick, 485 F. Supp. 2d 642 (D. Md. 2007). In that case, a high school athletic league had a rule providing that the results of a new event would not count in state tournaments until high schools representing 40% of the jurisdictions participated in that event. Id. at 646. The plaintiff challenged the application of that rule to wheelchair racing. The court held that the rule was “neutral in intent and in effect,” and denied the racer’s request for an injunction. Id. at 650. The USOC argues that its rule limiting the Athlete Support Programs to Olympic and Pan American athletes is neutral in the same way that the 40% rule is neutral. But the McFadden opinion makes clear that this is not the case: the 40% rule in fact applied to exclude similarly situated teams of non-disabled students, for example, diving and pole vaulting. Id. at 646. That is, among the relevant universe -- high school athletes -the neutral rule excluded not only wheelchair racers but also nondisabled teams as well. In contrast, the allegedly neutral rule at issue here works to exclude -- within the relevant universe -- only disabled athletes. III. The USOC’s Separate Benefits Argument Fails.
The USOC’s catch-all argument is that Section 504 “does not require equal benefits across separate programs.” (USOC Br. at 12, 26-32.) This argument fails because is based on a false premise -- there are no separate benefits -- and
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incorrectly assumes that separate benefits would be permissible in this case. The application of this rationale to deny benefits to Paralympic athletes is a pretext for discrimination. Finally, even if the USOC were permitted to maintain separate benefits programs, it would not be permitted to discriminate among separate but equivalent -- that is, similarly situated -- athletic programs for disabled and nondisabled athletes.
A. The Separate Benefits Argument is Based on a False Premise. The USOC argues that it provides separate benefits for athletes on the Olympic and Paralympic teams. (See USOC Br. at 34.) This is incorrect. Although the teams are separate, there is no evidence in the record of any other benefit program besides the Athlete Support Programs. Specifically, there is no evidence of what the USOC refers to as “Paralympic Team benefits.” There are no separate benefits; there is one unified set of benefits -- provided to Olympic and Pan American athletes -- from which Paralympic athletes are excluded. This alone is sufficient to demonstrate a violation of Section 504.
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B. Separate Benefits Are Prohibited By Section 504 Because the USOC Has Not Demonstrated That They Are Necessary in Order to Provide Benefits That Are As Effective As Those Provided Others.
Even if the USOC did provide a separate benefits package for Paralympic athletes, this would violate Section 504 unless the USOC could demonstrate that it was necessary to do this in order to provide Paralympic athletes with benefits that were as effective as those provided others. 28 C.F.R. § 41.51(b)(1)(iv). The Athlete Plaintiffs made this argument in their opening brief, and explained that this was a defense as to which the USOC had the burden of proof. (See Athletes’ Br. at 45-46.) The USOC did not mention -- much less attempt to rebut -- this argument.
Because there is no evidence in the record that it would be necessary to provide a separate package of grants and health insurance in order to provide Paralympic athletes with equally effective grants and health insurance, separate benefits are not permitted, and Paralympic athletes must be eligible for the Athlete Support Programs.
C. The USOC’s Separate Benefits Argument is A Pretext. The USOC supports its argument for providing (theoretical though nonexistent) separate benefits to Paralympic athletes by stating that Olympic and
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Paralympic athletes “compete in separate athletic competitions that are organized by entirely separate entities: the International Olympic Committee, on the one hand, and the International Paralympic Committee, on the other.” (USOC Br. at 33-34.) The Olympic and Pan American teams differ in precisely the ways the Olympic and Paralympic teams differ: (1) they “compete in separate athletic competitions” -- the Pan American Games involve athletes only from the Americas, occur every four years the year before the Olympic games,12 and include sports that are not part of the Olympics (USOC Br. at 7 n.2); and (2) they are “organized by entirely separate entities” -- the International Olympic Committee and the Pan American Sports Organization.13
The fact that the reasons given by the USOC for denying benefits to Paralympic athletes are equally applicable to Pan American athletes, and yet those latter athletes are not denied benefits, demonstrates that these reasons are a pretext for discrimination.
12 “The Pan American Games: History,” ¶ 1, http://www.cob.org.br/pan2007/ingles/jogos_historico.asp (last visited July 11, 2007).
13 “The Pan American Games: PASO, ¶¶ 1-2, http://www.cob.org.br/pan2007/ingles/jogos_odepa.asp (last visited July 11, 2007).
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D. Even If Separate Benefits Programs Were, Theoretically, Permitted, the USOC Could Not Provide Systematically Inferior Benefits to Paralympic Athletes.
Even if, arguendo, separate benefits were permissible under 28 C.F.R. § 41.51(b)(1)(iv), and if, theoretically, the USOC in fact provided separate benefits to Olympic, Pan American and Paralympic athletes, because those programs are equivalent and together constitute the limited universe -- per the USOC -- of the athletes for which it is responsible, the USOC cannot provide systematically inferior benefits to the one of the three programs composed entirely of disabled athletes.
This is the lesson of Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004), and Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994). In both of those cases, the defendant offered a set of separate but equivalent programs. In Rodde, it was a series of county-run hospitals, only one of which offered services for individuals with disabilities. Id., 357 F.3d at 990. In Dreher Park, it was a series of recreational programs, only some of which were designed for individuals with disabilities. Id., 846 F. Supp. at 988-89. In each case, the decision to close or withdraw funding from the programs designed for individuals with disabilities violated Section 504. See Rodde, 357 F.3d at 998; Dreher Park, 846 F. Supp. at 991-92. And this was so
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despite the fact that the programs that the defendants continued to support -- the non-specialized hospitals and the general recreational programs -- were technically but not effectively open to people with disabilities.
Those cases are directly applicable here. The only “programs” for which the USOC provides benefits -- the Olympic and Pan American teams -- are not meaningfully accessible to Paralympic athletes. Participants in a third, designed for persons with disabilities, are not eligible. Indeed, on this issue, Dreher Park is directly on point. The programs at issue in that case were a general recreation program and a recreation program designed for individuals with disabilities. The former program would be just as available to disabled participants as the Olympics are: a blind runner or deaf swimmer (see USOC Br. at 7, 21, 50) or any other athlete with a non-mobility disability would be well-served by the general recreational programs of the City of West Palm Beach. That court made clear that this was not sufficient. While it was true that the general programs did not explicitly exclude people with disabilities, because of the nature of their disabilities and the activities involved, many people with disabilities could not benefit from them. Dreher Park, 846 F. Supp. at 991. Ultimately, without the specialized recreational programs, the disabled plaintiffs were “without a meaningful access to the benefits of the City’s recreational programs.” Id. at 992
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n.14. Similarly, while athletes with disabilities are not barred from Olympic competition, it is clear that the Olympics do not provide meaningful access to elite disabled athletes.
The results in Rodde and Dreher Park are consistent with the results in Klinger v. Department of Corrections, 107 F.3d 609, 615-16 (8th Cir. 1997), and Jeldness v. Pearce, 30 F.3d 1220, 1229 (9th Cir. 1994), both of which held that, under Title IX, a prison system could not discriminate between separate but equivalent programs for men and women. Klinger is especially relevant here, because it relied on the definition of “program or activity” in Title IX that is identical to that in Section 504 to hold that equivalent programs must be compared throughout an institution. Id. at 615. (See Athletes’ Br. at 23-24, 31.)
Neither John Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996), nor Castellano v. City of New York, 142 F.3d 58 (2d Cir. 1998), is relevant here: in neither case was the court addressing separate but equivalent programs; and in both cases the favored program was not only technically but effectively open to people with disabilities.
In Chandler, the Ninth Circuit held that a state did not violate the ADA when it provided benefits of unlimited duration to needy persons with dependent children and benefits of up to one year in duration to needy disabled persons. Id.,
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83 F.3d at 1151-52. For this case to be relevant, the Olympics would have to be as
open to disabled athletes as the category needy persons with dependent children is
to disabled persons. Not so. Approximately 30% of all disabled adults are parents,14 and approximately 30% of all families have one or more members who have a disability.15 So “families with dependent children” will include a
significant percentage of individuals with disabilities. In contrast, again, the
USOC can point to only four disabled Olympians in over 100 years.
Furthermore, in contrast to the Paralympics -- which are the “equivalent of
the Olympics” for disabled athletes -- needy disabled persons are not the disabled
equivalent of needy persons with dependent children. In Does 1-5, there was no
equivalent-but-disabled group to whom the state was permitted to provide no or
lesser benefits.
14 Linda Toms Barker and Vida Maralani, “Challenges and Strategies of Disabled Parents: Findings From a National Survey of Parents with Disabilities,” Berkeley Planning Associates (July 1997) at 2-5.
15 Mitchell P. LaPlante, et al., “Families with Disabilities in the United States,” 8 Disability Statistics Report, Nat’l Inst. on Disability and Rehabilitation Report No. ED-OSERS-96-12, Univ. of Cal. San Francisco (Sept. 1996) at 7. The USOC argues that the category “families with dependent children” will tend to screen out those whose disabilities affect their fertility. USOC Br. at 29. However, the category is not “families with dependent biological children,” but simply dependent children, including adoptive and foster children as well as those conceived naturally.
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In Castellano, the City of New York provided different benefits packages to “for-service” retirees -- those who had retired after twenty or more years of service -- than it did to those who had retired before that time. Id., 142 F.3d at 64. A number of individuals who had retired before 20 years due to disability filed suit alleging that they should be entitled to the for-service benefits. In contrast to the situation here -- involving participants in three equivalent sets of athletic programs -- the Second Circuit made clear that these two sets of retirees were not equivalent. Rather those disabled retirees who had retired before completing twenty years of service “are similarly situated not with twenty-year ‘for-service’ retirees, but with non-disabled retirees who retire after an equivalent period of service. Because the latter group is not entitled to [for-service] benefits, there is no unlawful discrimination. ” Id., at 70. Similarly, the for-service retirement benefits “are available equally to persons with and without disabilities who retire after twenty years of service.” Id.16 In other words, all pre-20-year retirees were treated the same and all post-20-year retirees were treated the same, disabled or not.
16 The other two cases on which the USOC relies concerned identical situations with identical results. See Bass v. City of Orlando, 57 F. Supp. 2d 1318, 1325 (M.D. Fla. 1999) (relying on the analysis in Castellano cited in text); Fobar v. City of Dearborn Heights, 994 F. Supp. 878, 887 (E.D. Mich. 1998) (“In the instant case, all employees, including disabled employees, may qualify for the regular pension so long as they meet the age and service requirements.”).
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Furthermore, the favored group -- post-20-year retirees -- was effectively, not just technically, open to all: it is common sense that the rate of disability among those who have served as peace officers for more than twenty years will be similar to or greater than what it is in the general population.17
E. The Prohibition on Discrimination among Equivalent Programs for Disabled and Nondisabled Participants Does Not Require Equal Funding Across All Programs.
It is premature to state the contours of an eventual injunction should the Athlete Plaintiffs ultimately prevail. As explained in the Athletes’ Brief, the Hollonbeck case was resolved on a motion to dismiss, before any discovery had been conducted, and the cross-motions for summary judgment that the district court resolved in Shepherd were filed in order to address the USOC’s refusal to provide discovery concerning the benefits it was providing to various Olympic athletes. (Athletes’ Br. at 4-5, 7.) With this discovery, the parties can propose, and the district court order, proper relief. The fact that complying with antidiscrimination statutes can be analytically complex does not obviate the need to comply.
17 This common sense is supported by census statistics. Approximately 18% of all individuals have disabilities; the figure is 32.8% for individuals 45 years and older. See “Prevalence of Disability by Age, Sex, Race, and Hispanic Origin: 2002,” http://www.census.gov/hhes/www/disability/sipp/disab02/ds02t1.pdf.
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One thing is clear, however: the USOC’s caricature of compliance is inaccurate and unhelpful. The USOC asserts that the ruling requested by the Athlete Plaintiffs would be “unworkable” because recipients of federal funding “would be required to halt, aggregate and then evenly redistribute across all of their programs, regardless of the programs’ need or objective, the funding, resources and benefits the institution provides.” (USOC Br. at 45; see also id. at 42 (“sprawling, open-ended, institution-wide parity requirement”).) Section 504 requires no such thing. Rather, where two programs are equivalent but one is designed specifically for individuals with disabilities while the other is effectively closed to individuals with disabilities, the two programs must be compared and subjected to an antidiscrimination analysis.
Indeed, even Title IX -- which the USOC is attempting to lampoon through the description above -- does not compare all programs, only equivalent programs. For example, Title IX would not require equal funding between men’s basketball and women’s chorus or -- in the prison context -- men’s educational programs and women’s nutritional programs. Only within the relevant universe -- for example, athletics or prison education programs -- is an antidiscrimination comparison required. This is the lesson of Klinger, 107 F.3d at 616, which held that a proper Title IX analysis would compare “educational opportunities for female and male
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prisoners within the entire system of institutions . . ..” See also Jeldness, 30 F.3d at 1229 (“The prohibited activity would be the offering of educational programs only in the men’s prisons, without offering equivalent programs in the women’s prison.”). It is also why the ruling requested by the Athlete Plaintiffs would not require the city in Castellano to provide identical retirement programs or the state in Chandler to provide identical support for needy families with children and needy disabled people: in neither case are the programs at issue equivalent to one another. See supra at 26-28.
The USOC implicitly recognizes the need for a “system-wide analysis” here when it states that the Title IX regulations “try to guarantee ‘equality’ by requiring that a college ‘provide equal opportunities for members of both sexes.’ . . . And to do that, courts must necessarily undertake a system-wide analysis.” (USOC Br. at 37-38 (quoting 34 C.F.R. § 106.41(c)).) As demonstrated in detail above, Section 504 also requires equal opportunities for individuals with disabilities. To do this, a system-wide analysis of equivalent programs is required; here, it requires a comparison of benefits provided to Olympic, Pan American and Paralympic athletes.
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CONCLUSION For the reasons set forth above and in the Athletes’ Brief, Appellants respectfully request that this Court reverse the District Court’s decision granting the USOC’s motion for summary judgment in the Shepherd case and its motion to dismiss in the Hollonbeck case and remand for further proceedings in both cases.
CERTIFICATE REGARDING LENGTH OF BRIEF As required by Fed. R. App. P. 32(a)(7)(C), undersigned counsel certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i), and that this brief contains 6,969 words. Counsel relied on the word count of WordPerfect X3, which was used to prepare this brief.
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Respectfully submitted this 13th day of July, 2007.

/s/ Amy F. Robertson Amy F. Robertson Timothy P. Fox FOX & ROBERTSON, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs-Appellants Shepherd, Hollonbeck, Iniguez, and Heilveil

Kevin W. Williams Legal Program Director Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Attorney for Plaintiffs-Appellants Hollonbeck, Iniguez and Heilveil.

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Certificate of Service and Digital Submission
The undersigned hereby certifies that,
1. Appellants’ Reply Brief including the Addendum thereto were filed in writing and in Digital Form (as that term is defined in the Emergency General Order of October 20, 2004) and/or scanned PDF with the United States Court of Appeals for the Tenth Circuit on July 13, 2007.
2. No redactions being required, every document submitted in Digital Form (as that term is defined in the Emergency General Order of October 20, 2004) or scanned PDF format is an exact copy of the written document filed with the Court.
3. The digital submissions references in Paragraph 1 have been scanned for viruses with the most recent version of eTrust Antivirus and, according to the program, are free of viruses.
4. On July 13, 2007, copies of Appellants’ Reply Brief including the Addendum thereto were sent by electronic mail and in hard copy, by first-class mail, postage prepaid, to:
John W. Cook jwcook@hhlaw.com Jeffrey S. George jsgeorgh@hhlaw.com Anne H. Turner ahturner@hhalw.com Hogan & Hartson, LLP 2 N Cascade Ave., Suite 1300 Colorado Springs, CO 80903
Christopher Todd Handman cthandman@hhlaw.com Hogan & Hartson, LLP 555 Thirteenth Street, N.W. Washington, DC 20004-1109

Samuel R. Bagenstos One Brookings Dr., Box 1120 St. Louis, MO 63130 srbagenstos@wulaw.wustl.edu
/s/ Amy F. Robertson Signature
July 13, 2007 Dated signed
Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street Suite 610 Denver, CO 80202

 
 Nos. 07-1053 & 07-1056 UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
SCOT HOLLONBECK, JOSE ANTONIO INIGUEZ, and JACOB WALTER JUNG HO HEILVEIL, Plaintiffs-Appellants v.
UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, Defendant-Appellee. and
MARK E. SHEPHERD, SR., Plaintiff-Appellant, v.
UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, Defendant-Appellee.
On Appeal from the United States District Court for the District of Colorado The Honorable John L. Kane, United States District Judge Civil Action Nos. 99-cv-2077-JLK & 03-cv-1364-JLK
APPELLANTS’ CONSOLIDATED OPENING BRIEF
STATEMENT REGARDING ORAL ARGUMENT Oral argument is requested.

Respectfully submitted,
Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs-Appellants Shepherd, Hollonbeck, Iniguez and Heilveil.

Kevin W. Williams Legal Program Director Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Attorney for Plaintiffs-Appellants Hollonbeck, Iniguez and Heilveil.

TABLE OF CONTENTS Statement of Related Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Issue Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Shepherd v. United States Olympic Committee, No. 07-1056 . . . . . . . . . . . 4
Hollonbeck v. United States Olympic Committee, No. 07-1053 . . . . . . . . . 6
Cases Consolidated for Oral Argument and Decision . . . . . . . . . . . . . . . . . 7
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
II. Elements of a Claim under Section 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III. The Fact That Olympic and Paralympic Athletes Participate in Separate International Competitions Does Not Justify Denying Paralympic Athletes Benefits Offered Other Amateur Athletes . . . . . . . . 19
A. Legislative History and the USOC’s Structure Demonstrate that It Has Direct and Equal Responsibility for all Amateur Athletes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. The District Court Erred in Focusing its Analysis Only on the Olympics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
C. Other Cases Decided Under Section 504 and Title IX Suggest That The Proper Focus of Analysis is the USOC as a Whole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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1. The Fact That An Organization’s Disabled Participants May be In a Separate Program Does not Excuse Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2. Cases Decided under Title IX Demonstrate That it Is Appropriate to Analyze Discrimination on an Institution-Wide Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3. The District Court Erred In Rejecting The Relevance of Title IX Precedent . . . . . . . . . . . . . . . . . . . . . . 31
IV. The District Court Erred in Holding That the Athlete Plaintiffs Were Not Qualified for the Benefits at Issue Here . . . . . . . . . . . 34
V. The District Court Erred In Holding That Exclusion of Paralympic Athletes from Athlete Support Programs Was Not Discriminatory . . . . . . 38
A. Exclusion of Paralympic Athletes from the Athlete Support Programs is Facial Disability Discrimination . . . . . . . . . . . 38
B. “Paralympic Athlete” Is a Proxy for Disabled Amateur Athlete, Making Discrimination Against the Former Facial Discrimination Against the Latter . . . . . . . . . . . . . . . 39
C. It Is Irrelevant That the Occasional Olympic Athlete May Have a Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
D. The District Court Erred In Concluding that The Mere Existence of the Paralympics Satisfied Section 504 . . . . . . . . . . . 43
E. The So-Called “Separate Benefit” Provision Is Irrelevant Here and Is, in Any Event, an Affirmative Defense Not Pleaded or Proved by the USOC . . . . . . . . . . . . . . . . . . . . . . . . 45
VI. The District Court Erred in Rejecting the Athlete Plaintiffs’ Claim That the Challenged Criterion Had the Effect of Screening Out Amateur Athletes with Disabilities . . . . . . . . . . . . . . . . . . . 46
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Certificate Regarding Length of Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Addendum

Tab 1:

Memorandum Opinion and Order Granting Defendants’ Dispositive Motions re: Athlete Claims.

Tab 2: 29 U.S.C. § 794

Tab 3: 28 C.F.R. § 41.32

Tab 4: 28 C.F.R. § 41.51

Tab 5: 20 U.S.C. § 1681

Tab 6: 20 U.S.C. § 1687

Tab 7: 36 U.S.C. § 220501

Tab 8: 36 U.S.C. § 220503

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TABLE OF AUTHORITIES
Cases
Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 37, 43, 46
Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Bangerter v. Orem City Corp., 46 F.3d 1491 (10th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Barnes v. Gorman, 536 U.S. 181 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-33
Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Bryant v. Independent School Dist. No. I-38, 334 F.3d 928 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 44, 46
Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491 (W.D. Wash. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Clark v. Va. Bd. of Bar Exam’rs, 880 F. Supp. 430 (E.D. Va. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Colorado Cross Disability Coalition v. Hermanson Family Ltd. P’ship I, 264 F.3d 999 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45-46
Community Services, Inc. v. Wind Gap Municipal Auth., 421 F.3d 170 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41-42
-iv-

Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27
Erie County Retirees Ass’n v. County of Erie, 220 F.3d 193 (3d Cir.2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41
Grove City College v. Bell, 465 U.S. 555 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
John Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-29
Klinger v. Department of Corrections, 107 F.3d 609 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24, 31
Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42-43
Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d 893 (10th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
McWright v. Alexander, 982 F.2d 222 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40, 41
National Collegiate Athletic Ass’n v. Smith, 525 U.S. 459 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
N.L.R.B. v. Ky. River Cmty. Care, Inc., 532 U.S. 706 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Powers v. MJB Acquisition Corp., 184 F.3d 1147 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372 (10th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 31-32
Roberts v. Colo. State Bd. of Agric., 998 F.2d 824 (10th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 30
Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-27
Ryan v. Shawnee Mission U.S.D. 512, 437 F. Supp. 2d 1233 (D. Kan. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Sharpvisions v. Borough of Plum, 475 F. Supp. 2d 514 (W.D. Pa. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Sternberg v. U.S.A. Nat’l Karate-Do Fed’n, Inc., 123 F. Supp. 2d 659 (E.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Sullivan v. Vallejo City Unified Sch. Dist., 731 F.Supp. 947 (E.D.Cal.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Wells v. Colo. Dep’t of Transp., 325 F.3d 1205 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Statutes
Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988) . . . . . . . . . . . . . . . . . . . . . . . 23-24
Title IX of the Education Amendments of 1972
20 U.S.C. § 1681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
20 U.S.C. § 1687 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Rehabilitation Act of 1973
Section 501, 29 U.S.C. § 791 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Section 504, 29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim The Ted Stevens Olympic and Amateur Sports Act 36 U.S.C. §§ 220501-220529 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 36 U.S.C. § 220501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 20 36 U.S.C. § 220502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 36 U.S.C. § 220503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 20, 35 Title VI of the Civil Rights Act of 1964 42 U.S.C. § 2000d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25, 31-32 The Age Discrimination Act of 1975 42 U.S.C. § 6101 - 6107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 32 The Americans with Disabilities Act of 1990 Title I, 42 U.S.C. §§ 12111 - 12117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Title II, 42 U.S.C. §§ 12131 - 12165 . . . . . . . . . . . . . . . . . . . . . . . . . passim Title III
42 U.S.C.§§ 12181 - 12189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 8
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42 U.S.C. § 12182(b)(1)(A)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 42 U.S.C. § 12182(b)(2)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Regulations 28 C.F.R. pt. 35, app. A (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 28 C.F.R. 36.307(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 28 C.F.R. § 41.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 28 C.F.R. § 41.32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 34 28 C.F.R. § 41.51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Rules Federal Rule of Appellate Procedure 4(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Federal Rules of Civil Procedure
Rule 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17, 45 Rule 54(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2, 8 Rule 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 45
Legislative History H. R. Rep. No. 101-485, pt. 2 (1990), reprinted in 1990 U.S.C.C.A.N. 303. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 47 S. Rep. No. 100-64 (1988), reprinted in 1988 U.S.C.C.A.N. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25, 32 S. Rep. No. 105-325 (1998) 1998 WL 604018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
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Other Authorities “U.S. going to Rio for 2007 Pan Am Games,” http://www.rio2007.org.br/pan2007/ingles/jogos_historico.asp (last accessed April 28, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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STATEMENT OF RELATED CASES Hollonbeck v. United States Olympic Committee, No. 07-1053, and Shepherd v. United States Olympic Committee, No. 07-1056, are related and have been consolidated for briefing. There are no other related cases.
JURISDICTIONAL STATEMENT The District Court’s subject-matter jurisdiction arose under 28 U.S.C. §§ 1331 and 1343, because Plaintiffs-Appellants Mark Shepherd, Scot Hollonbeck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil (“the Athlete Plaintiffs”) allege discrimination on the basis of disability by Defendant-Appellee the United States Olympic Committee (“USOC”) in violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”). 29 U.S.C. § 794. This Court’s jurisdiction arises under 28 U.S.C. § 1291 because the Athlete Plaintiffs appeal from a final judgment of the United States District Court for the District of Colorado. Judgment entered on January 10, 2007. (Joint Appendix (“JA”) at 545, 550.) The Athlete Plaintiffs filed their Notice of Appeal on February 6, 2007 (JA at 595), within 30 days of that judgment. This appeal is therefore timely pursuant to Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure. This appeal is from a judgment pursuant to Rule 54(b) of the Federal
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Rules of Civil Procedure as to the claims of the Athlete Plaintiffs under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 - 12189.
STATEMENT OF ISSUE PRESENTED FOR REVIEW Does the United States Olympic Committee, which is responsible for supporting the Amateur Athletes who compete in the Olympics, Pan-American Games, and Paralympics, violate Section 504 when it excludes Paralympic athletes -- all of whom are disabled -- from the grants, tuition support, and health insurance provided to competitors in the Olympic and Pan-American Games? This question was raised in the parties’ cross-motions for summary judgment and partial summary adjudication in Shepherd v. United States Olympic Committee and in the parties’ briefing on the USOC’s motion to dismiss in Hollonbeck v. United States Olympic Committee. (JA at 73, 135, 178, 227, 246, 260, 277, 325, 355.) It was ruled on in the district court’s Memorandum Opinion and Order Granting Defendants’ Dispositive Motions re Athlete Claims, dated November 16, 2006. (JA at 500.)
STATEMENT OF THE CASE The USOC offers benefits through its Athlete Support Programs -including, for example, grants, tuition assistance, and health insurance -- to
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Olympic and Pan-American athletes that it denies to Paralympic athletes, a class that the USOC itself defines as elite disabled athletes. Plaintiffs allege that this denial of benefits constitutes a violation of Section 504, which prohibits discrimination on the basis of disability by recipients of federal financial assistance.
The USOC defends its right to deny these benefits to Paralympic athletes based on its assertion that the Olympics are a separate program from the Paralympics and that its treatment of participants in the two programs cannot be compared -- under any circumstances -- to determine whether disabled athletes were denied the benefits of” the USOC’s programs or activities in violation of Section 504. The USOC does not attempt to put before the Court -- much less legally defend -- any particular level of funding or support for the Paralympics. Rather, it reserves for itself the unilateral right to determine what benefits, if any, it may elect to provide to Paralympic athletes, free from the antidiscrimination requirements that apply to all other recipients of federal financial assistance.
This issue arose in two cases before the United States District Court for the District of Colorado: Shepherd v. United States Olympic Committee, 99-cv-2077JLK, and Hollonbeck v. United States Olympic Committee, 03-cv-1364-JLK. Although the two cases came before that court in differing procedural postures,
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there are no facts in dispute in either case and very little relevant discovery has been conducted in either case. The district court consolidated the cases for oral argument and decision of the issues now before this Court. Shepherd v. United States Olympic Committee, No. 07-1056
Mark Shepherd filed suit against the USOC on October 26, 1999. His Third Amended Complaint included claims under Section 504 as well as title I and title III (“Title III”) of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111 - 12117, 12181 - 12189, and two state-law employment-related claims. (JA at 54-61.) Mr. Shepherd’s Section 504 and Title III claims (the “Athlete Claims”) related to his status as a Paralympic athlete; the remainder, to his status as a former employee of the USOC. In his Athlete Claims, Mr. Shepherd asserted that the USOC violated Title III and Section 504 by providing benefits to Olympic and Pan-American athletes that it did not provide to Paralympic athletes. Only the Section 504 claim is at issue here.
In 2002, the parties reached an impasse concerning the proper scope of discovery relating to the Athlete Claims. Because the USOC asserted that it had the power and discretion to provide benefits to Olympic athletes that it did not provide to Paralympic athletes, unfettered by the antidiscrimination provisions of Section 504 and Title III, it refused to produce in discovery certain information
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and documents relating to such benefits. Plaintiff Shepherd moved to compel. In an attempt to resolve the impasse, the parties agreed to stay discovery on the Athlete Claims and to submit to the district court -- on stipulated facts and cross-motions for summary judgment -- the question whether the USOC violates Section 504 and/or Title III by providing benefits to Olympic and Pan-American athletes that it does not provide to Paralympic athletes. (JA at 142-45.) As part of that agreement, the parties entered a series of stipulations concerning the benefits that the USOC denies to Paralympic athletes. (JA at 171.)
The question of discrimination under Title III and Section 504 was thus before the district court based on these stipulations and a limited set of undisputed exhibits submitted by the parties. No evidence was before the court concerning the USOC’s actual levels of funding or support for Olympic, Pan-American, or Paralympic athletes.
In accordance with the parties’ agreement, in the fall of 2002, the USOC moved for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure and Mr. Shepherd moved for partial summary adjudication pursuant to Rule 56(d) on the designated question. (JA at 73, 135.) The USOC argued that the Athlete Plaintiffs were in reality asserting claims under the Ted Stevens Olympic and Amateur Sports Act (“ASA”), 36 U.S.C. §§ 220501-220529, which
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does not have a private right of action. In the alternative, it argued that the Olympics and Paralympics were separate programs that could not be compared for purposes of an antidiscrimination analysis, that Paralympic athletes were not qualified for the benefits at issue because they were not Olympic athletes, and that the Athlete Plaintiffs were requesting “accessible or special goods,” in violation of Title III regulations, 28 C.F.R. § 36.307(a).
The Athlete Plaintiffs responded by demonstrating that the ASA does not preempt federal antidiscrimination claims, that the USOC in fact discriminates against Paralympic athletes by denying them the benefits of the Athlete Support Programs that it provides to Olympic and Pan-American athletes, and that the Athlete Plaintiffs were not asking for anything special, but rather that they be eligible for the same types of Athlete Support Programs provided Olympic and Pan-American athletes.
While those motions were pending, Scot Hollonbeck and his co-plaintiffs filed suit. Hollonbeck v. United States Olympic Committee, No. 07-1053
Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, and Vie Sports Marketing, Inc. (“Vie Sports”), filed suit against the USOC on July 28, 2003, alleging claims under Title III and Section 504 that raised the same issues as
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the Athlete Claims in Shepherd. The complaint also included claims for breach of contract and promissory estoppel on behalf of Vie Sports. (JA at 299.)
In lieu of filing an answer, on October 6, 2003, the USOC moved to dismiss the Hollonbeck Athlete Claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (JA at 277.) The parties’ briefs made virtually the same arguments as they had made in connection with the cross-motions in Shepherd. Cases Consolidated for Oral Argument and Decision.
The parties and the district court agreed that the Athlete Claims in the Shepherd and Hollonbeck cases raised identical legal issues. The district court consolidated the cases for purposes of oral argument on the cross-motions in Shepherd and the motion to dismiss in Hollonbeck, which argument was held on September 21, 2005. (JA at 439.)
On November 16, 2006, the district court issued its consolidated decision, granting the USOC’s motion for summary judgment and denying Mr. Shepherd’s motion for partial summary adjudication as to the Athlete Claims in the Shepherd case and granting the USOC’s motion to dismiss in the Hollonbeck case. (JA at 500.)
The district court held that the Athlete Plaintiffs’ claims were not preempted by the ASA. (JA at 527.) The USOC has not appealed this holding.
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The district court went on to analyze the merits of the Title III and Section 504 claims, holding -- in relevant part1 -- (1) that the Paralympics were a separate program from the Olympics and Pan-American games, and thus the USOC could deny benefits to Paralympic athletes that it provided to Olympic and Pan-American athletes (JA 534), and (2) that Paralympic athletes were not qualified for the benefits at issue because they were not Olympic athletes, a necessary criterion (JA at 532). The court did not address the USOC’s “accessible or special goods” argument.
On January 10, 2007, the district court issued an order directing entry of judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure as to the Athlete Claims in each case. (JA at 542, 546.) On the same date, final judgment entered as to those claims. (JA at 545, 550.)
The Athlete Plaintiffs appeal only their Section 504 claims, that is, the granting of the USOC’s motion for summary judgment on Mr. Shepherd’s Section 504 claim and the granting of the USOC’s motion to dismiss the Section 504 claims of Messrs. Hollonbeck, Iniguez, and Heilveil. The Athlete Plaintiffs do not
1 The district court also questioned whether the USOC was a “place of public accommodation” as that term is defined in Title III. (JA at 531.) Because the Athlete Plaintiffs do not appeal their Title III claims, this holding is not relevant to the present appeal.
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appeal their Title III claims and Vie Sports does not appeal either its Section 504 or Title III claims. Mr. Shepherd’s employment claims, Vie Sports’s breach of contract and promissory estoppel claims, and the USOC’s counterclaim against Vie Sports remain pending before the district court.
The Athlete Plaintiffs in both cases filed an unopposed motion before this Court to consolidate the Shepherd and Hollonbeck cases for briefing, which motion was granted by Order dated February 23, 2007.
STATEMENT OF FACTS Because the questions before this Court were presented to the district court on cross motions for summary judgment and summary adjudication based on stipulated facts (in Shepherd) and on a motion to dismiss (in Hollonbeck), the following facts are undisputed. The Paralympics are a series of highly competitive elite athletic competitions for athletes with disabilities. They are the second-largest sporting event in the world behind the Olympics. (JA at 169, 303.) Paralympic athletes are elite athletes with disabilities that include, for example, blindness, cerebral palsy, spinal cord injury, multiple sclerosis, and dwarfism. (JA at 170.) The first Paralympic Games were held in 1960. Recent Paralympic Games -- now occurring immediately after the Olympic Games in the same host city -- have involved more
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than 4,000 athletes in the summer games and more than 1,100 athletes in the winter games. (JA at 169.)
The USOC equates Paralympic athletes with elite athletes with disabilities. It states that the Paralympics “showcas[e] the talents and abilities of the world’s most elite athletes with physical disabilities” (JA at 169), and that “[t]he Paralympics are the equivalent of the Olympic Games for the physically challenged” (JA at 167, 302). Similarly, the legislative history of the 1998 amendments that gave the USOC responsibility for the Paralympics and Paralympic athletes described the Paralympics as “the Olympics for disabled amateur athletes.” S. Rep. No. 105-325 at 2 (1998), 1998 WL 604018.
The Athlete Plaintiffs are all Paralympic athletes. Mark Shepherd is a wheelchair basketball player who was a member of the United States Paralympic Wheelchair Basketball team in 1996. (JA at 171.) Scot Hollonbeck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil are all wheelchair racers. Mr. Hollonbeck has competed in three Paralympic Games, winning two gold medals and a silver medal in 1992, two silver medals in 1996, and competing as a finalist in three events in 2000. (JA at 304.) Mr. Iniguez competed in the 1992 Paralympic Games, in the 100 and 800 meter races and the marathon and qualified for the 2000 Paralympic Games in several distances. (JA at 305.) Mr. Heilveil
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competed in the Paralympic Games in 2000, racing in the 800 meter, the 1500 meter, the 5000 meter, the 10,000 meter, and the marathon. (JA at 306.) The Athlete Plaintiffs all have disabilities that cause them to use wheelchairs for mobility. (JA at 171, 301.)
The USOC is a federally chartered corporation, 36 U.S.C. § 220502(a), that receives federal financial assistance (JA at 43, 320). The corporation is defined by the ASA, which gives it responsibility for “all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-American Games, including representation of the United States in the games.” Id. § 220503(3)(A).2 The USOC’s purposes include “obtain[ing] for the United States the most competent amateur representation possible in each event” in the Olympic, Pan-American, and Paralympic Games. Id. § 220503(4).
The term “amateur athlete” -- which plays a role in so many of the USOC’s purposes, see, e.g., id. § 220503(1), (2), (5) - (9) -- is central to understanding what the USOC does and who it serves. Although to read the USOC’s briefing
2 “The Pan American games are a continental version of the Olympic Games which includes the Olympic Program sports and others that are not part of the Olympics.” “U.S. going to Rio for 2007 Pan Am Games,” http://www.rio2007.org.br/pan2007/ingles/jogos_historico.asp (last accessed April 28, 2007). This evidence was not in the record below; it is included here as explanatory material.
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below, one might believe that Olympic and Pan American athletes enjoy a more favored status under the ASA than Paralympians, that is not the case.
The ASA defines “amateur athlete” -- capitalized as “Amateur Athlete” herein to reference the statutory definition -- as “an athlete who meets the eligibility standards established by the national governing body or paralympic sports organization for the sport in which the athlete competes.” 36 U.S.C. § 220501(b)(1). That is, the term “Amateur Athlete” includes Paralympic athletes. Further, in crafting the amendment to the ASA that assigned the USOC responsibility for Paralympic athletes and the development of our country’s Paralympic team, Congress stated that “[t]he legislation would fully incorporate the Paralympics into the Amateur Sports Act . . .” and “would give the USOC the same duties with respect to the Paralympic Games as it has with the Olympic Games.” S. Rep. No. 105-325 at 2, 5 (1998), 1998 WL 604018. The legislation was also intended to “make clear that disabled athletes are ‘amateur athletes’ under the Act’s existing definition . . .” Id. at 5.
Despite this comprehensive definition of the participants in its program, the USOC provides a number of benefits and services to the (largely non-disabled) Amateur Athletes who participate in the Olympic Games and Pan-American Games that it denies to the (by definition disabled) Amateur Athletes who
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participate in the Paralympic Games. The USOC’s “Resource Allocation Policy” states that “Participation in Athlete Support Programs is available only to athletes who are eligible to represent the United States and who intend to compete, if selected, in the next Olympic or Pan American Games.” (JA at 110.) Paralympic athletes are not eligible to apply for Athlete Support Programs. For example, the USOC provides grants and health insurance to Olympic and Pan-American athletes for which Paralympic athletes are ineligible to apply. (JA at 112, 173, 307.) For the purposes of this case, the USOC denominates these benefits “Olympic Programming.” (See, e.g., JA at 171.) The USOC’s Resource Allocation Policy, however, refers to these benefits as “Athlete Support Programs.” (JA at 110.) This is more accurate: the Resource Allocation Policy makes clear that both Olympic and Pan-American athletes are eligible to apply for the Athlete Support Programs from which Paralympic athletes are excluded. (Id.)3
3 The only one of the Athlete Support Programs that has, more recently, been opened to Paralympic athletes is the award of cash for medals. This part of the program excluded Paralympic athletes completely until 2002. (JA at 103-04, 110-15.) That is, during the period when the Athlete Plaintiffs were competing and winning medals, the USOC provided such cash awards to Olympic and Pan American athletes but not to Paralympic athletes. Starting in 2002, Paralympic athletes who won medals were awarded cash in amounts one-tenth that awarded Olympic athletes. (JA at 103.)
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While there is much discussion in the USOC’s briefs below and in the district court’s opinion concerning “separate benefits,” this phrase is a misnomer. The benefits at issue here are in a unified program -- the Athlete Support Programs -- from which the USOC has elected to exclude Paralympic athletes. It is true that the Amateur Athletes for which the USOC is responsible all compete in different sports comprising different international competitions; however, the Athlete Plaintiffs do not seek to alter the rules of or qualifications for any of those sports or competitions. The USOC’s benefits, on the other hand, are not -- nor need they be -- separated for Olympic, Pan-American, and Paralympic athletes, except to the extent the USOC has artificially -- and circularly -- labeled the Athlete Support Programs “Olympic Programming” for purposes of this litigation.
In sum, the Athlete Plaintiffs are all Amateur Athletes as that term is defined by Congress. Yet, they are not eligible for Athlete Support Programs for which similarly-situated non-disabled Amateur Athletes -- participating in either the Olympic or Pan-American Games -- are eligible.
SUMMARY OF ARGUMENT The district court’s central error was to focus its analysis on one discrete part of the USOC’s overall program -- the Olympics. This error led it to conclude that the qualification of being an Olympic athlete to obtain the benefits at issue
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here was necessary and that, because the Olympics were technically (even if not effectively) open to all, no discrimination had occurred.
This erroneously narrow focus was based on the district court’s incorrect factual assessment that Congress had essentially given the USOC responsibility for the Paralympics as an afterthought, when in fact Congress intended to fully incorporate the Paralympics into the USOC, and to “give the USOC the same duties with respect to the Paralympic Games as it has with the Olympic Games.” S. Rep. 105-325 at 2, 5 (1998), 1998 WL 604018.
The district court’s narrow focus on the Olympics was contrary to Section 504’s definition of “program or activity,” which requires an institution-wide analysis of discrimination, see 29 U.S.C. § 794(b)(3)(A). A proper antidiscrimination analysis here requires comparison of the USOC’s treatment of Amateur Athletes who compete in the Olympic, Pan-American and Paralympic Games. This approach is supported by years of precedent interpreting Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, (“Title IX”), prohibiting discrimination on the basis of sex by recipients of federal funding. Title IX contains an identical definition of “program or activity,” compare 20 U.S.C. § 1687 with 29 U.S.C. § 794(b), and this Court has stated that Section 504 was “‘patterned after and is almost identical to the anti-discrimination language of’”
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Title IX. Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1379 (10th Cir. 1981) (quoting S. Rep. No. 93-1297, 1974 U.S.C.C.A.N. 6373, 6390). Under this “almost identical” statute, courts compare the treatment of male and female college athletes who compete on separate teams. See, e.g., Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 829-32 (10th Cir. 1993) (holding that university violated Title IX when it cut its women’s softball team).
Once the proper focus of the analysis is recognized to be the USOC’s entire program, it is clear that Paralympic athletes -- who are Amateur Athletes as that term is defined by statute -- are qualified for the Athlete Support Programs the USOC makes available to Olympic and Pan-American athletes. There is no evidence that the eligibility requirement of being an Olympic or Pan-American athlete is essential to the Athlete Support Programs. See 28 C.F.R. § 41.32(b) (defining “qualified” as a person with a disability who “meets the essential eligibility requirements for” for receiving the services in question).
Under a proper, institution-wide, analysis, it also becomes clear that the policy excluding Paralympic Amateur Athletes from Athlete Support Programs discriminates on the basis of disability, either outright or because “Paralympic athlete” is a proxy for “Amateur Athlete with a disability.” In addition, that policy violates the Section 504 regulation barring criteria or methods of administration
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that have the effect of excluding people with disabilities. 28 C.F.R. § 41.51(b)(3)(i).
ARGUMENT I. Standard of Review
The district court granted the USOC’s motion for summary judgment in the Shepherd case. This Court “review[s] the district court’s grant of summary judgment de novo, considering the evidence in the light most favorable to the appellant.” Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1209 (10th Cir. 2003). “In reviewing such dispositions, this court repeatedly has emphasized that we must draw all inferences in favor of the party opposing summary judgment.” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1096 (10th Cir. 1999).
The district court granted the USOC’s motion to dismiss the Hollonbeck plaintiffs’ Section 504 claim pursuant to Rule 12(b)(6) for failure to state a claim. “This Court reviews a district court’s order granting a motion to dismiss for failure to state a claim de novo, . . . accept[ing] all well-pleaded factual allegations in the complaint as true and view[ing] them in the light most favorable to the nonmoving party. A dismissal pursuant to 12(b)(6) will be affirmed ‘only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle the
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plaintiff to relief.’” Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d 893, 89899 (10th Cir. 2006) (citations omitted). II. Elements of a Claim under Section 504.
Under Section 504, a qualified individual with a disability may not, solely by reason of his or her disability, be “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Regulations implementing Section 504 define discrimination to include, among others things, denying qualified individuals with disabilities “the opportunity to participate in or benefit from” a benefit offered by the recipient, and affording such individuals “an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others.” 28 C.F.R. § 41.51(b)(1)(i), (ii).4 Section 504 also prohibits criteria or methods of administration that have the effect of subjecting people with disabilities to discrimination. 28 C.F.R. § 41.51(b)(3)(i); see also Alexander v. Choate, 469 U.S. 287, 299 (1985).
4 The Department of Justice Coordination Regulations, 28 C.F.R. pt. 41, apply “to each Federal department and agency that is empowered to extend Federal financial assistance.” 28 C.F.R. § 41.2. These regulations “are of particular significance” because there were issued by “the agency responsible for coordinating the implementation and enforcement of § 504.” Bragdon v. Abbott, 524 U.S. 624, 632 (1998).
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Under Section 504, the Athlete Plaintiffs are required to show that (1) they have a disability; (2) they are otherwise qualified to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminated against them. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999). The USOC has stipulated in Shepherd and the Athlete Plaintiffs have properly alleged in Hollonbeck that the USOC receives federal financial assistance and that the Athlete Plaintiffs have disabilities. (JA at 43, 171, 301, 320.) Thus the only questions at issue here are whether the Athlete Plaintiffs are “otherwise qualified” to participate in the USOC’s program and whether the USOC discriminated against the Athlete Plaintiffs. III. The Fact That Olympic and Paralympic Athletes Participate in
Separate International Competitions Does Not Justify Denying Paralympic Athletes Benefits Offered Other Amateur Athletes. The district court erred in concluding that any attempt to analyze the USOC’s obligation to all Amateur Athletes -- Olympic, Pan American and Paralympic -- in a unified fashion was belied by legislative history and the USOC’s structure. (JA at 534.) Based on that essentially factual error, the district court erred in restricting its discrimination analysis to the Olympics, rather than considering the USOC as a whole, as compelled by Section 504’s definition of “program or activity”: “all of the operations of” the recipient of federal funding.
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29 U.S.C. § 794(b). The history of that definition and an Eighth Circuit case based on identical language in Title IX demonstrate that it precludes the narrow single-program focus of the district court’s decision. A number of cases under both Section 504 and Title IX provide additional support for this conclusion.
A. Legislative History and the USOC’s Structure Demonstrate that It Has Direct and Equal Responsibility for all Amateur Athletes.
The ASA defines the USOC’s duties and purposes. This statute makes clear that the USOC has responsibility for Olympic, Pan-American, and Paralympic athletes, and places no one category of athlete above the others. It defines “amateur athlete” to include all of these athletes, and “amateur athletic competition” as games in which amateur athletes compete. 36 U.S.C. § 220501(b)(1), (2). It then defines the USOC’s purposes in terms of Amateur Athletes and amateur athletic competition and activities, and expressly assigns the USOC responsibility for “all matters pertaining to” the Olympic, Pan American, and Paralympic games and for “obtain[ing] for the United States . . . the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and Pan-American Games.” 36 U.S.C. § 220503(3)(A), (4). Nothing in the language of the statute suggests that one of these games or categories of Amateur Athletes is paramount or privileged over the others.
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Because this language is unambiguous, there should be no need to explore the legislative history to determine what Congress intended when it gave the USOC responsibility for the Paralympics and Paralympic athletes. See, e.g., Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1177 (10th Cir. 2005).
Despite this, the district court looked to the legislative history of the 1998 amendments that assigned the USOC responsibility for the Paralympics and Paralympic athletes and concluded that these amendments merely “formalize[d] recognition of the existing Paralympic movement and add[ed] the Paralympics to the list of international competitions to which the United States will send representatives.” (JA at 534.) This is inaccurate. The 1998 legislative history makes clear that the amendments did far more than that. The legislation was intended to “fully incorporate the Paralympics into the Amateur Sports Act . . .” and to “give the USOC the same duties with respect to the Paralympic Games as it has with the Olympic Games.” S. Rep. No. 105-325 at 2, 5 (1998), 1998 WL 604018. It also was to “make clear that disabled athletes are ‘amateur athletes’ under the Act’s existing definition . . .” Id. at 5. Congress did not just staple the Paralympics to the USOC as an afterthought; it intended fully to incorporate that program and its athletes into the USOC.
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The district court’s analysis of the USOC’s structure was also incorrect. That court articulated its belief that while the USOC represents the United States internationally as its national Paralympic committee, “vis á vis individual citizens” the USOC works through national governing bodies (“NGBs”) and paralympic sports organizations (“PSOs”). (JA at 507.) This is an incomplete picture. While the USOC delegates organizational responsibility to NGBs and PSOs, it also provides direct support to athletes. The USOC’s Resource Allocation Policy states that the USOC “shall allocate performance-based resources to the NGBs and direct athlete support to the athletes . . .” and specifies that “[g]rants awarded to athletes by the USOC shall be paid directly to athletes . . ..” (JA at 110-11, see also id. at 171, 307.)
Ultimately, the USOC is a single institution assigned responsibility for three categories of Amateur Athletes -- Olympic, Pan-American, and Paralympic -- only two of which are eligible for its Athlete Support Programs. Paralympic athletes -the category that both the USOC and Congress equate with elite disabled athletes -- are excluded from those programs. The fact that these athletes do not compete in the same sports or set of Games does not justify the district court’s decision to restrict the focus of its antidiscrimination analysis only to the Olympics.
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B. The District Court Erred in Focusing its Analysis Only on the Olympics.
Section 504 prohibits disability discrimination by “any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The statute defines “program or activity” in relevant part as “all of the operations of . . . an entire corporation, partnership or other private organization . . .” Id. § 794(b)(3)(A).
This definition and its history were crucial to the Eighth Circuit when it addressed a question similar to the present -- what program is the proper focus of an antidiscrimination analysis under this language? -- in Klinger v. Department of Corrections, 107 F.3d 609, 615-16 (8th Cir. 1997). In Klinger, female prisoners in Nebraska’s only facility for women had alleged that their training opportunities were inferior to those provided at one specific facility for male prisoners, in violation of Title IX. Id. at 612. The Eighth Circuit held that it was inappropriate to compare only those two facilities; rather, the discrimination analysis should consider “[t]he Nebraska prison system as a whole.” Id. at 615. This conclusion was based on Title IX’s definition of “program or activity,” which is identical to that of Section 504. Id.; compare 20 U.S.C. § 1687 with 29 U.S.C. § 794(b). Both definitions were added simultaneously to their respective statutes by the Civil
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Rights Restoration Act of 1987 (“CRRA”). Pub. L. No. 100-259, § 4, 102 Stat. 28 (1988).
The Eighth Circuit gave considerable weight to the legislative history of the CRRA. The court noted that the statute had been passed to reverse the Supreme Court’s decision in Grove City College v. Bell, 465 U.S. 555 (1984), which had held that the term “program or activity” in Title IX was limited only to that discrete program within an institution that actually received federal funding. Klinger, 107 F.3d at 615 n.7. The court concluded that “the purpose of [the definition] was ‘to make clear that discrimination is prohibited throughout entire agencies or institutions if any part receives Federal financial assistance.’” Id. at 615 (citing S. Rep. No. 100-64, at 4, reprinted in 1988 U.S.C.C.A.N. 3, 6). Thus, the definition of “program or activity” in Title IX, the Eighth Circuit held, “requires comparison of educational opportunities for female and male prisoners within the entire system of institutions operated by a state’s federally-funded correctional department or agency . . .” Id. at 616.
The identical definition in Section 504 requires comparison of benefits provided to disabled and non-disabled Amateur Athletes within the entire institution of the USOC. Indeed, the legislative history of the CRRA states further that it would restore Section 504 -- as well as Title IX, Title VI of the Civil Rights
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Act (“Title VI”), 42 U.S.C. § 2000d, and the Age Discrimination Act of 1975, 42
U.S.C. § 6101 - 6107 -- “to the broad, institution-wide application which
characterized coverage and enforcement from the time of initial passage until the
Grove City decision.” S. Rep. No. 100-64, at 4, reprinted in 1988 U.S.C.C.A.N. 3,
6.
C. Other Cases Decided under Section 504 and Title IX Suggest That the Proper Focus of Analysis Is the USOC as a Whole.
1. The Fact That an Organization’s Disabled Participants May Be in a Separate Program Does Not Excuse Discrimination.
The fact that an organization may provide services to participants with
disabilities through a separate program does not insulate it from an
antidiscrimination analysis. For example, in the Ninth Circuit case of Rodde v.
Bonta, 357 F.3d 988 (9th Cir. 2004), the plaintiffs challenged, under Title II of the ADA (“Title II”),5 the closure of a rehabilitation hospital that provided a unique
range of services necessary for individuals with certain disabilities, id. at 990-91,
in other words, a separate program for disabled county residents. The defendant
5 42 U.S.C. § 12131 - 12165 (prohibiting discrimination on the basis of disability by public entities). Title II “‘essentially simply extends the anti-discrimination prohibition embodied in section 504 . . . to all actions of state and local governments.’” Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 859 (10th Cir. 2003) (quoting H.R. Rep. No. 101-485, pt. 2, at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367).
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argued that the disabled plaintiffs could use any one of several hospitals that remained open and that they did not have a right to the services provided by the separate rehabilitation hospital. Id. at 995, 998. The Ninth Circuit disagreed, holding that if the county were to close the rehabilitation hospital, “it will reduce, and in some instances eliminate, necessary medical services for disabled Medi-Cal patients while continuing to provide the medical care required and sought by Medi-Cal recipients without disabilities” in violation of Title II. Id. at 998.
The Ninth Circuit also endorsed the similar holding of Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994), in which the court had held that it violated Title II when a city recreation department shut down its (separate) programs for individuals with disabilities, while continuing to provide programs -- theoretically open to all -- to nondisabled city residents. Rodde, 357 F.3d at 998; see also Dreher Park, 846 F. Supp. at 991.
In Rodde and Dreher Park, the fact that the program for people with disabilities was separate did not insulate it from review for disability discrimination. Rather, the analysis focused on the treatment of people with disabilities systemwide.
The district court distinguished Rodde and Dreher Park on the grounds that the programs for people with disabilities in those cases were eliminated
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completely, while the Paralympics still exist. (JA at 534-37.) This misinterprets both the absolutism of the USOC’s position and the posture of the present case.
The USOC does not argue that its current level of Paralympic support is sufficient to satisfy Section 504. Rather, it argues that the fact that the programs are separate removes them completely from scrutiny under Section 504. Under the USOC’s theory, it could in fact eliminate all support for Paralympic athletes and those athletes would be without recourse under Section 504.
The district court did not, in any event, have the facts necessary to evaluate the support provided to Paralympic athletes. Largely due to the USOC’s absolutist stance, there was no evidence before the district court concerning the actual level of support that the USOC provides to either Olympic or Paralympic athletes. Rather, the legal question was before the court in Shepherd precisely because the USOC -- based on its position that the relative levels of support between Olympic and Paralympic athletes were beyond scrutiny under Section 504 -- had refused to produce in discovery certain documents and information concerning the support provided its various categories of Amateur Athletes. To resolve the Athlete Plaintiffs’ motion to compel this information, the parties stayed discovery, entered stipulations, and submitted the pure legal question to the Court. Those stipulations and the other limited evidence in the record in Shepherd, as well as the
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allegations in Hollonbeck, demonstrate that there are a number of programs for which Paralympic athletes simply are not eligible at all.6
The USOC urged that the reasoning of John Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996), was more applicable than that of Rodde or Dreher Park. The district court agreed. (JA at 536.) In Does 1-5, the Ninth Circuit held that the state of Hawai’i could place a durational limit on a program providing benefits to needy persons with disabilities, despite the fact that a program providing benefits to needy families with dependent children was not so limited. Id. at 1155. This decision was based in part on the court’s determination that the benefit programs were separate and should be analyzed separately, rather than as part of a unitary general assistance program. Id. This alone makes the case inapposite here, as the Athlete Support Programs for which Olympic and Pan-American athletes are
6 Because of this, the district court also erred in relying on its perception that the “differences in perks and privileges” between Olympic and Paralympic teams are “premised on and defined by” the disabilities of Paralympic athletes and that differences in the allocation of resources may be based on the fact that the Paralympics are “smaller in scale” than the Olympics. (JA at 519-20.) Again, no such nuanced differences were before the district court and the only “premises” the USOC offered for denying benefits to Paralympic athletes was that they were not Olympic athletes. Similarly, the Athlete Plaintiffs are not complaining of the “quality” of the benefits provided them (see JA 519, 521, 53436), but the fact that the Athlete Support Programs are not open to them at all.
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eligible are not properly analyzed as separate from any benefits provided to Paralympic athletes.
The present case differs from Does 1-5 in another crucial respect: the favored program in Does 1-5 -- the one for needy families with dependant children -- was in fact open to all, that is, it did not exclude needy families with dependent children that included family members with disabilities. The category “families with dependent children” was in no way tantamount to or a proxy for7 “non-disabled families,” and the criterion of having dependent children does not have the effect of excluding individuals with disabilities.8 The plaintiffs in Does 1-5 made no such arguments and it is simply common sense that many families with dependent children will have one or more members who have disabilities. This was essential to the court’s approval of the differing durational limitations. Id. at 1155 (holding that “a program would not violate the ADA as long as disabled people with children were not excluded from full participation in the program.”) In contrast, the Athlete Support Programs at issue here explicitly exclude the precise category of Amateur Athletes that Congress and the USOC define as elite disabled athletes.
7 See infra at 39-42. 8 See infra at 46-49.
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2. Cases Decided under Title IX Demonstrate That it Is Appropriate to Analyze Discrimination on an InstitutionWide Basis.
Precedent under Title IX -- especially in the arena of college athletics -provides additional support for the principle that it is proper to compare separate programs of protected class and non-protected class participants within a single institution for purposes of an antidiscrimination analysis. Courts have widely interpreted Title IX to require equitable treatment of male and female athletes participating in separate teams and programs. See, e.g., Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 829-32 (10th Cir. 1993) (holding that university violated Title IX when it cut its women’s softball team); Cohen v. Brown Univ., 991 F.2d 888, 903-04 (1st Cir. 1993) (holding that demoting two women’s varsity teams to club status violated Title IX); Sternberg v. U.S.A. Nat’l Karate-Do Fed’n, Inc., 123 F. Supp. 2d 659, 661-62 (E.D.N.Y. 2000) (holding that female athlete stated cause of action against the NGB of karate for sex discrimination under Title IX based on the NGB’s decision to withdraw a women’s team from world championship competition while permitting the equivalent men’s team to participate).
Several other courts have held that, under Title IX, male and female prisoners -- who are segregated by gender and often reside in different institutions
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-- must be offered comparable educational opportunities. See, e.g., Klinger, 107 F.3d at 615-16 (holding that Title IX applied to segregated male and female prisoners, requiring “comparison of educational opportunities . . . within the entire system of institutions”); Jeldness v. Pearce, 30 F.3d 1220, 1229 (9th Cir. 1994) (holding that Title IX would prohibit, for example, “offering of educational programs only in the men’s prisons, without offering equivalent programs in the women’s prison.”).
In each of these cases, the men’s and women’s programs were separate -either involving separate teams playing different sports or segregated men’s and women’s prisons -- yet the courts recognized that Title IX prohibited actions that favored the men’s program over the women’s program. Furthermore, in none of these cases did the defendant eliminate the women’s program entirely; rather, the conduct held to violate Title IX was the provision of certain opportunities or support to the men’s program that were not provided to the women’s program.
3. The District Court Erred In Rejecting The Relevance of Title IX Precedent.
Cases decided under Title IX are especially relevant to this Court’s analysis of the Athlete Plaintiffs’ claims because Section 504 was “‘patterned after and is almost identical to the anti-discrimination language of’” Title IX and Title VI.
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Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1379 (10th Cir. 1981) (quoting S. Rep. No. 93-1297, 1974 U.S.C.C.A.N. 6373, 6390); see also S. Rep. No. 100-64, at 5 (1987), reprinted in 1988 U.S.C.C.A.N. 3, 7 (Section 504 and Title IX were “modeled on Title VI with respect to both language and intended effect.”). Of particular importance, as noted above, is the fact that the definition of “program or activity” is identical in both statutes. The legislative history of the bill that added these identical definitions stated that “[e]ach of [Title VI, Title IX, Section 504, and the Age Discrimination Act of 1975] employs the same careful language to describe coverage so that the same standards are used to interpret and enforce all four laws.” S. Rep. No. 100-64, at 3, reprinted in 1988 U.S.C.C.A.N. 3, 5-6.
Many courts -- when interpreting one of these four statutes -- rely on precedents interpreting the other three to address a variety of different questions including: whether prohibited discrimination under the statute includes retaliation, Ryan v. Shawnee Mission U.S.D. No. 512, 437 F. Supp. 2d 1233, 1256 (D. Kan. 2006) (relying on Title IX precedent to interpret Section 504; citing Pushkin); what constitutes actionable harassment, Bryant v. Independent School District. No. I-38, 334 F.3d 928, 934 (10th Cir. 2003) (relying on Title IX precedent to interpret Title VI); what damages are available, Barnes v. Gorman,
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536 U.S. 181, 185 (2002) (noting that the same standards apply to all four statutes); and what constitutes receipt of federal financial assistance, Nat’l Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 466 n.3, 468 (1999) (same).
The district court refused to consider precedent under Title IX in analyzing the Athlete Plaintiffs’ claims, stating that the Athlete Plaintiffs were attempting to “graft” or “infuse” the Title IX regulatory scheme onto or into the ADA. (JA at 513, 521, 541.) This is not so. There is no need to borrow the Title IX regulations as Section 504 already has regulations that prohibit the conduct challenged here. See, e.g., 28 C.F.R. § 41.51(b)(1)(i) (barring recipients of federal funding from denying participants with disabilities “the opportunity to participate in or benefit from” benefits offered by the recipient). Rather, Title IX precedents are instructive because they apply a statute this Court has recognized to be almost identical to Section 504 to a factual scenario similar to the one at issue here.
The “institution-wide application” that Congress intended by the current definition of “program or activity” -- which does not rely on Title IX regulations but rather identical statutory language -- does not permit the USOC’s approach of limiting the analysis only to the Olympics. Rather, it requires analysis of the USOC’s treatment of all of the Amateur Athletes for whom the USOC has responsibility. So analyzed, as set forth in greater detail below, it is clear that the
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USOC discriminates against Amateur Athletes with disabilities in violation of Section 504. IV. The District Court Erred in Holding That the Athlete Plaintiffs Were
Not Qualified for the Benefits at Issue Here. The Athlete Plaintiffs are qualified for the benefits at issue here because they are “Amateur Athletes” -- the category of individual for which the USOC is responsible -- as that term is defined by statute. A person with a disability is “qualified” under the applicable regulations if he “meets the essential eligibility requirements for” for receiving the services in question. 28 C.F.R. § 41.32(b). Being an Amateur Athlete -- as defined by statute -- is an essential eligibility requirement for the USOC’s Athlete Support Programs; being an Olympic athlete is not. It is important to be clear which eligibility requirement the Athlete Plaintiffs challenge here. The Athlete Plaintiffs are not asking for any modification to the physical or athletic eligibility requirements for any Olympic or Pan-American sport. Rather, the eligibility requirement they challenge is a purely administrative one: that Olympic and Pan-American athletes are eligible to apply for a series of benefits -- completely unrelated to sport -- for which Paralympic athletes are not eligible. Amateur Athletes do not have to have any particular set of physical
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abilities or athletic talents to make use of a cash grant, tuition support, or health insurance. This is best illustrated by the fact that all Olympic athletes -- ranging from weight lifters to figure skaters -- are eligible to apply for these benefits. Thus the question of whether the Athlete Plaintiffs are qualified physically or athletically to compete in the Olympics is completely irrelevant.
Instead, the question whether the Athlete Plaintiffs are qualified is simply this: Is the eligibility requirement restricting Athlete Support Programs such as grants, tuition assistance, and health insurance to Olympic and Pan-American athletes essential? It is certainly not essential to the benefits themselves: again, there is nothing inherent to cash grants and health insurance that limits their usability to Olympic and Pan-American athletes. Without changing any aspect of the grants or insurance, the USOC could open up eligibility for its Athlete Support Programs to Paralympic athletes.
The restriction is also not essential to the USOC’s program as a whole. The USOC’s purpose includes “obtain[ing] for the United States . . . the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and Pan-American Games.” 36 U.S.C. § 220503(4). Restricting the Athlete Support Programs to two of these three categories is not essential to that purpose. In fact, eliminating that restriction and permitting
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Paralympic athletes to be eligible for Athlete Support Programs will promote that purpose.
The district court erred by focusing its analysis only on the Olympics, concluding that the Athlete Plaintiffs failed to demonstrate that “these benefits are not ‘necessary’ to the maintenance of the Olympic team.” (JA at 539.) As demonstrated above, the proper focus is institution-wide, so the question is necessity to the USOC’s entire program, not just the Olympics. In addition, the question is not whether the benefits are necessary, but whether an eligibility requirement that excludes Paralympic athletes from those benefits is necessary. The USOC has presented no evidence that this is the case. In any event, so phrased, it is clear that this approach would be improper: if exclusion of a protected class could be excused on the grounds that it was necessary to reserve more benefits or resources for the non-protected class, the whole point of antidiscrimination laws would be defeated. Based on the necessity of reserving jobs for men, workplaces could not be integrated; in order to reserve slots for white students, schools could not be integrated.
The USOC argued below that the Athlete Plaintiffs were not qualified for what it calls “Olympic programming” simply because they were not Olympic
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athletes. (See, e.g., JA at 87.) This is circular.9 Defendants have defined the qualification in terms of the precise category the Athlete Plaintiffs challenge as discriminatory: The limitation of certain benefits to Olympic athletes. The Supreme Court has held, in interpreting Section 504, that “[t]he benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled . . .” Choate, 469 U.S. at 301 (1985); see also Clark v. Va. Bd. of Bar Exam’rs, 880 F. Supp. 430, 441 (E.D. Va. 1995) (noting, in addressing mental health question on bar application, that “[w]hile Defendant argues that [the plaintiff] is not an ‘otherwise qualified individual’ because she failed to answer [the mental health question], this argument begs the question of whether [the question] must be answered at all.”). The USOC’s argument is equivalent a college labeling its athletic benefits the “Men’s Athletic Program,” and then asserting that female college athletes are not “qualified” for the benefits because they are not men.
9 It is also arguably a pretext, because Pan American athletes are also eligible for what the USOC calls “Olympic Programming” for purposes of this case -- but “Athletic Support Programs” in its non-litigation documentation -without, apparently, being Olympic athletes. (See JA at 110.)
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V. The District Court Erred In Holding That Exclusion of Paralympic Athletes from Athlete Support Programs Was Not Discriminatory. Once it is clear that Amateur Athletes competing in Paralympic Games are
qualified for the USOC’s Athlete Support Programs, it becomes equally clear that excluding those athletes from the Athlete Support Programs constitutes facial discrimination on the basis of disability, whether outright or by proxy.
A. Exclusion of Paralympic Athletes from the Athlete Support Programs is Facial Disability Discrimination.
The USOC discriminates against Amateur Athletes with disabilities by excluding Paralympic athletes from eligibility for Athlete Support Programs, and denying them benefits such as grants, tuition assistance, and health insurance that it provides to Olympic and Pan-American athletes. This policy thereby denies Paralympic athletes -- who are, by definition, disabled -- “the opportunity to participate in or benefit from” the Athlete Support Programs, including grants, assistance, and health insurance, and thereby provides benefits that are not equal to that afforded Olympic athletes, in violation of Section 504. See 28 C.F.R. § 41.51(b)(1)(i), (ii).
The exclusion of Paralympic athletes from the Athlete Support Programs constitutes intentional disability discrimination. “By showing that a protected group has been subjected to explicitly differential -- i.e. discriminatory --
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treatment” the Athlete Plaintiffs demonstrate intentional discrimination. Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995). Providing benefits to Amateur Athletes competing in the Olympic and Pan American Games but denying eligibility to Amateur Athletes competing in the Paralympic Games subjects the protected group of athletes with disabilities to explicitly differential treatment. Plaintiffs have thus demonstrated intentional disability discrimination.
B. “Paralympic Athlete” Is a Proxy for Disabled Amateur Athlete, Making Discrimination Against the Former Facial Discrimination Against the Latter.
The fact that the USOC’s discrimination is against Paralympic athletes rather than against disabled athletes per se is not to the contrary. In the present case, the USOC has recognized that the Paralympics are “the equivalent of the Olympic Games for the physically challenged” (JA at 167, see also JA at 302), and Congress has described the Paralympics as “the Olympics for disabled amateur athletes,” S. Rep. 105-325 at 2 (1998), 1998 WL 604018. Using such a “proxy” for a protected class constitutes facial discrimination. Thus, by excluding Paralympic athletes from its Athlete Support Programs, the USOC engages in facial disability discrimination.
In McWright v. Alexander, 982 F.2d 222 (7th Cir. 1992), for example, the plaintiff, who was infertile due to a disability, asserted a claim under section 501
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of the Rehabilitation Act, 29 U.S.C. § 791,10 based on the fact that her employer set terms for maternity leave -- including, for example, specifying a date certain on which it would begin -- that were more favorable to women bearing children naturally than those adopting children. Id. at 224. The district court had dismissed on the grounds that the policy of advance notice for maternity leave did not appear to be intentional discrimination on the basis of disability. The Seventh Circuit reversed, observing that
discrimination “because of” handicap is frequently directed at an effect or manifestation of a handicap rather than being literally aimed at the handicap itself. Thus, a school’s exclusion of a service dog has been held to be discrimination “because of” handicap, and no doubt a policy excluding wheelchairs would be such discrimination . . .. Id. at 228 (citing Sullivan v. Vallejo City Unified Sch. Dist., 731 F.Supp. 947, 958 (E.D. Cal.1990)). The Seventh Circuit stressed that the fit did not have to be perfect: “An example is using gray hair as a proxy for age: there are young people with gray hair (a few), but the ‘fit’ between age and gray hair is sufficiently close that they would form the same basis for invidious classification.” Id.; see also Erie County Retirees Ass’n v. County of Erie, 220 F.3d 193, 211 (3d Cir.
10 Section 501 prohibits employment discrimination on the basis of disability by federal agencies. 29 U.S.C. § 791. The Seventh Circuit stated that the plaintiff’s intentional discrimination claim “might as easily come under § 504 as under § 501.” McWright, 982 F.2d at 227.
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2000) (holding that offering Medicare-eligible retirees different benefits than nonMedicare-eligible retirees constitutes age discrimination because “Medicare status is a direct proxy for age”); Sharpvisions v. Borough of Plum, 475 F. Supp. 2d 514 (W.D. Pa. 2007) (holding that definition of “group home” as up to ten persons “plus staff” was a proxy for persons with disabilities) (no pinpoint cite available).
The district court did not address the Athlete Plaintiffs’ proxy discrimination argument, but rather appeared to confuse it with what that court called the separate benefit analysis. (See JA at 536.) The Athlete Plaintiffs address that issue below. See infra at 45-46.
The USOC relied below on Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170 (3d Cir. 2005). This case is not, however, contrary to the Athlete Plaintiffs’ proxy discrimination argument. In fact, the Wind Gap case reconfirmed that proxy discrimination constitutes intentional discrimination. Id. at 177-178 (citing McWright and Erie County). However, the Third Circuit concluded that the “fit” at issue was not close enough to constitute a proxy. The plaintiff in Wind Gap was a for-profit home for individuals with disabilities. The city of Wind Gap had classified it as a “commercial facility” which invoked a more burdensome permitting process than that for residential facilities. Id. at 173. The Third Circuit focused on the fact that the designation
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“commercial facility” included many non-disability-related facilities such as hotels, motels, and restaurants. Id. at 181. Thus, the excluded classification was in no way a proxy for persons with disabilities. Here, in contrast, it is only Paralympic athletes -- those the USOC and Congress equate with elite disabled athletes -- who are excluded from the Athlete Support Programs, for which both Olympic and Pan-American athletes are eligible. The “fit” is sufficiently close between Paralympic athletes and Amateur Athletes with disabilities to make facial discrimination against the former a proxy for facial discrimination against the latter.
C. It Is Irrelevant That the Occasional Olympic Athlete May Have a Disability.
The district court erred when it relied on the fact that some athletes whose disabilities (for example, deafness) do not impact their ability to play Olympic sports may qualify for the Athlete Support Programs from which Paralympic athletes are excluded. (JA at 519.) It is irrelevant that the occasional Olympic athlete with a disability may be entitled to the benefits at issue here. “The . . . appropriate treatment of some disabled persons does not permit [the defendant] to discriminate against other disabled people . . ..” Lovell v. Chandler, 303 F.3d 1039, 1054 (9th Cir. 2002) (rejecting the argument that a healthcare benefit
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program for the working poor that categorically excluded individuals with disabilities did not violate section 504 because some individuals with disabilities were poor enough to receive benefits under Medicaid); Hargrave v. Vermont, 340 F.3d 27, 30, 36-37 (2d Cir. 2003) (holding that statute affecting individuals with mental illness who were civilly committed or in prison violated Title II of the ADA despite the fact that it only affected a subset of individuals with mental illness); Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491, 1496 n.8 (W.D. Wash. 1997) (“That a law may not burden all members of the protected class does not remove its facially discriminatory character.”).
The USOC’s argument is essentially equivalent to that of a city park that bars people who use wheelchairs, but asserts that the rule is not discriminatory because deaf and blind people can still use the park. The categorical denial of benefits to Paralympic athletes constitutes discrimination even if the occasional athlete with a non-sport-related disability competes in the Olympics.
D. The District Court Erred In Concluding that The Mere Existence of the Paralympics Satisfied Section 504.
Ultimately, Section 504 requires that Paralympic athletes have “meaningful access” to the USOC’s Athlete Support Programs. Choate, 469 U.S. at 301. The district court, while not alluding to that standard, held that it was sufficient that
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“the participation opportunity for wheelchair athletes is . . . provided through a separate (Paralympic) program.” (JA at 534.) This, again, misconstrues the nature of the discrimination the Athlete Plaintiffs challenge here. They do not argue that there are no, or restricted, opportunities for athletic participation. Rather, they argue that it constitutes discrimination under Section 504 that the one category of Amateur Athlete consisting of disabled athletes has no access whatsoever to specific non-athletic benefits.
The bare existence of a Paralympic program within the USOC does not, in any event, constitute “meaningful access” to that organization’s program. In Chaffin, this Court held that “[a] violation of Title II does not occur only when a disabled person is completely prevented from enjoying a service, program, or activity. . .” 348 F.3d at 861 (quoting Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001)). Again, the evidence before the district court in Shepherd was that Paralympic athletes were excluded completely from the Athlete Support Programs. (JA at 110; 173-74.) In Hollonbeck, the plaintiffs properly alleged a number of benefits for which Olympic athletes were eligible but Paralympic athletes were not. (JA at 307-08.) There were no allegations or evidence before the court sufficient to sustain the conclusion -- under Rule 12(b)(6) or 56(b) -- that the USOC provided meaningful access to its programs for Paralympic athletes.
-44-

E. The So-Called “Separate Benefit” Provision Is Irrelevant Here and Is, in Any Event, an Affirmative Defense Not Pleaded or Proved by the USOC.
The district court repeatedly noted that the Athlete Plaintiffs did not rely on
what it called the “separate benefit” provision. (See, e.g., JA at 511, 519, 536-37.)
This provision states that a recipient of federal funding may not
[p]rovide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
28 C.F.R. 41.51(b)(1)(iv).11 This provision is not relevant here for the simple
reason that the USOC does not provide separate benefits. Olympic and
Paralympic athletes may compete in separate sports on separate teams, but there is
one set of benefits: the Athlete Support Programs -- including grants, tuition
support, and insurance -- from which Paralympic athletes are excluded.
In any event, this “separate benefit provision” is an affirmative defense as to
which the USOC has the burden of proof: benefits “may not” be separate “unless
[it] is necessary” to ensure effectiveness, 28 C.F.R. 41.51(b)(1)(iv). See Colo.
11 Because the district court was reviewing the Athlete Plaintiffs’ ADA claim as well as their Section 504 claim, it referred throughout to the ADA’s separate benefit provision. (See, e.g., JA at 511 (citing 42 U.S.C. § 12182(b)(1)(A)(iii)).) The language of that provision is virtually identical to that of the regulation cited in text.
-45-

Cross Disability Coalition v. Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1003 (10th Cir. 2001) (stating that three provisions of Title III that impose requirements on covered entities “unless” certain conditions apply establish affirmative defenses on which the defendant has the burden of proof); N.L.R.B. v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711 (2001) (Discussing “‘the general rule of statutory construction that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits.’” (Internal citations omitted).) Thus the benefits at issue here -- grants, tuition assistance, insurance -- may not be provided to Paralympic athletes in a separate benefit program unless the USOC can show that such separation is necessary. The USOC -- which has the burden of proof -- has provided no evidence that this is the case. VI. The District Court Erred in Rejecting the Athlete Plaintiffs’ Claim That
the Challenged Criterion Had the Effect of Screening Out Amateur Athletes with Disabilities. Section 504 prohibits “criteria or methods of administration . . . that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.” 28 C.F.R. § 41.51(b)(3)(i); see also Choate, 469 U.S. at 299; Chaffin, 348 F.3d at 859-60 (Section 504 was intended “to remedy . . . disparate impact discrimination.”).
-46-

The USOC’s criterion requiring that Amateur Athletes be eligible to compete in the Olympics or Pan-American games to qualify for Athlete Support Programs has the effect of subjecting Amateur Athletes with disabilities to discrimination. Congress stated that the analogous provision in Title III of the ADA “makes it discriminatory to impose policies or criteria that, while not creating a direct bar to individuals with disabilities, diminish such individuals’ chances of participation.” H. R. Rep. No. 101-485, pt. 2, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 388. Given that no Paralympic athletes are eligible for the Athlete Support Programs, the chances of most Amateur Athletes with disabilities receiving such benefits are close to zero.
The district court rejected this theory12 on the grounds that the criterion of being an Olympic athlete was “necessary” to the maintenance of the Olympic team and that “it is irrelevant that the USOC chooses to provide Olympic programming only to Olympic athletes as long as the gateway to that program operates in a nondiscriminatory manner.” (JA at 539-40.)13 The Athlete Plaintiffs addressed
12 Because the district court was focusing on the Athlete Plaintiffs’ claims under Title III, it analyzed a similar provision in that statute. (See JA at 538 (citing 42 U.S.C. § 12182(b)(2)(A)(i)).)
13 The district court’s analysis of the disparate impact question was somewhat entwined with its rejection of the USOC as a “place of public
(continued...) -47-

the former point above, in their discussion of “essential eligibility requirements.” See supra at 34-37. The criterion of being an Olympic athlete to be eligible for Athlete Support Programs -- in fact, both Olympic and Pan-American athletes are eligible -- is only “necessary” if the purpose of those programs is improperly constrained to the maintenance of a subset -- the non-protected class subset -- of the Amateur Athletes for which the USOC has responsibility. Again, this is equivalent to excluding female athletes from insurance and grants provided to male athletes, and justifying on the grounds that doing so is necessary to maintain the men’s teams.
The district court’s second grounds for rejecting the Athlete Plaintiffs’ argument misses the point of the regulation barring criteria that have the effect of discriminating on the basis of disability. If the statement that the “gateway . . . operates in a nondiscriminatory manner” means that the criterion requiring eligibility for the Olympics to qualify for Athlete Support Programs is facially neutral, that makes it precisely the type of criterion that is appropriate for analysis under this regulation. As the Department of Justice stated, in interpreting almost identical language in the regulations implementing Title II, the provision
13(...continued) accommodation” under Title III. (JA at 539-40.) Because the Athlete Plaintiffs do not proceed under Title III, that discussion is not relevant here.
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prohibits both blatantly exclusionary policies or practices and nonessential policies and practices that are neutral on their face, but deny individuals with disabilities an effective opportunity to participate. 28 C.F.R. pt. 35, app. A at 550 (2006). If, on the other hand, the district court’s phrasing was intended to indicate that the “gateway” does not have a discriminatory effect, it is patently wrong: the criterion of having to be an Olympic athlete excludes all Paralympic athletes, the vast majority of Amateur Athletes with disabilities. This criterion has “the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap” in violation of Section 504. 28 C.F.R. § 41.51(b)(3)(i).
CONCLUSION For the reasons set forth above, Appellants respectfully request that this Court reverse the District Court’s decision granting the USOC’s motion for summary judgment in the Shepherd case and its motion to dismiss in the Hollonbeck case and remand for further proceedings in both cases.
STATEMENT REGARDING ORAL ARGUMENT Appellants request oral argument because this case involves questions that this Circuit has not yet addressed, including the “program or activity” that is the proper focus of an antidiscrimination analysis under Section 504.
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Certificate of Service and Digital Submission
The undersigned hereby certifies that,
1. Appellants’ Consolidated Opening Brief including the Addendum thereto and Volumes I and II of the Joint Appendix were filed in writing and in Digital Form (as that term is defined in the Emergency General Order of October 20, 2004) and/or scanned PDF with the United States Court of Appeals for the Tenth Circuit on May 2, 2007.
2. No redactions being required, every document submitted in Digital Form (as that term is defined in the Emergency General Order of October 20, 2004) or scanned PDF format is an exact copy of the written document filed with the Court.
3. The digital submissions references in Paragraph 1 have been scanned for viruses with the most recent version of eTrust Antivirus and, according to the program, are free of viruses.
4. On May 2, 2007, copies of Appellants’ Consolidated Opening Brief including the Addendum thereto, and Volumes I and II of the Joint Appendix were sent on a compact disc and in hard copy, by first-class mail, postage prepaid, to:
John W. Cook Jeffrey S. George Anne H. Turner Hogan & Hartson, LLP 2 N Cascade Ave., Suite 1300 Colorado Springs, CO 80903
Christopher Todd Handman Hogan & Hartson, LLP 555 Thirteenth Street, N.W. Washington, DC 20004-1109

 
 Scot Hollonbeck, et al., Petitioners v. United States Olympic Committee. No. 07-1504.
SUPREME COURT OF THE UNITED STATES

October 6, 2008, Decided

JUDGES: [*1] Roberts, Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer, Alito.
OPINION

Petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit denied. The Chief Justice took no part in the consideration or decision of this petition.

 
 513 F.3d 1191 (2008)
Scot HOLLONBECK; Jose Antonio Iniguez; Jacob. Walter Jung Ho Heilveil; Vie Sports Marketing, Inc., a Georgia corporation, Plaintiffs-
ppellants, v.
UNITED STATES OLYMPIC COMMITTEE, a federally-chartered corporation; U.S. Paralympics, Inc., f/k/a United States Paralympic Corporation, a Colorado non-profit corporation, Defendants-Appellees,
and Mark E. Shepherd, Sr., Plaintiff-Appellant,
v. United States Olympic Committee, a corporation, Defendant-Appellee.
Disability Rights Education and Defense Fund; Disability Rights Advocates; National Federation of the Blind; Legal Center for People With Disabilities; Rafael Ibarra; Karin Korb; Tatyana McFadden, Amici
Curiae.
Nos. 07-1053, 07-1056.
United States Court of Appeals, Tenth Circuit.
January 16, 2008.
1192*1192 Amy Robertson of Fox & Robertson, P.C., (and Timothy P. Fox of Fox & Robertson, 1193*1193 P.C., Kevin W. Williams, Legal Program Director of Colorado Cross Disability Coalition, Denver, CO, with her on the briefs), for Plaintiffs-Appellants.
Christopher Handman of Hogan & Hartson, L.L.P., Washington, D.C., (Jeffrey S. George, John W. Cook, and Anne H. Turner of Hogan & Hartson, L.L.P., Colorado Springs, CO, with him on the brief), for Defendants-Appellees.
Samuel R. Bagenstos, St. Louis, MO, filed a brief, for Amici Curiae.
Before KELLY, HOLLOWAY, and HOLMES, Circuit Judges.
KELLY, Circuit Judge.
In these consolidated appeals, paralympic athletes appeal the district court's dismissal of their claims under § 504 of the Rehabilitation Act against the United States Olympic Committee ("USOC"). In 07-1053, Plaintiffs-Appellants Scot Hollonbeck, Jose Antonio

Iniguez, and Jacob Walter Jung Ho Heilveil appeal the district court's grant of a motion to dismiss in favor of the USOC on their § 504 claim. In 07-1056, Plaintiff Mark Shepherd appeals the district court's grant of summary judgment in favor of the USOC on his § 504 claim. As both cases raise identical legal issues, we consolidated the cases for briefing and submission. Prior to our disposition, Mr. Shepherd and the USOC stipulated to a dismissal of the appeal in 07-1056 under Fed. R.App. P. 42(b). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Background
The USOC is a federally-chartered corporation that has exclusive jurisdiction over U.S. participation in three athletic competitions: the Olympic Games, the Paralympic Games, and the Pan American Games. 36 U.S.C. §§ 220502, 220503(3)(A). Under the Ted Stevens Olympic and Amateur Sports Act ("ASA") as amended, id. §§ 220501-220529, Congress has charged the USOC to "obtain for the United States, the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and the Pan-American Games." Id. § 220503(4).
The first Paralympic Games were held in 1960. Now the Paralympic Games immediately follow the Olympic Games in the same host city and involve between 1,100 and 4,000 athletes. Plaintiffs are all elite paralympic athletes who have competed in at least one Paralympic Games. Plaintiffs are wheelchair racing paralympians. U.S. Paralympians have been very successful compared to their Olympic counterparts with 42% of the Paralympians winning medals in 2000 and 75% winning medals in 2002 (compared to 16% of Olympians winning medals in both 2000 and 2002). Aplt. App. at 241.
To achieve its mission under the ASA, the USOC provides Athlete Support Programs which include various types of grants, tuition assistance, and health insurance benefits. The criterion that the USOC uses to distribute the benefits under its Resource Allocation Policy is that the applicant must be an athlete who is "eligible to represent the United States and who intend[s] to compete, if selected, in the next Olympic or Pan American Games." Id. at 110.
Plaintiffs challenge the USOC's policy of providing Athlete Support Programs only to Olympic team members, to the exclusion of Paralympic team members, as violating § 504 of the Rehabilitation Act. The district court consolidated two separate cases for oral argument which the parties and the court agreed raise identical legal issues under Title III of the Americans with Disabilities Act ("ADA"), and § 504 of the Rehabilitation Act: Hollonbeck v. USOC, No. 07-1053, on a motion to dismiss; and1194*1194 Shephard v. USOC, No. 07-

1056, on cross-motions for summary judgment. The district court ruled for the USOC on the Title III and § 504 claims in both cases and entered final judgment pursuant to Fed. R.Civ.P. 54(b) on those claims. Prior to our disposition, Mr. Shepherd and the USOC stipulated to the dismissal of the appeal in 07-1056 pursuant to Fed. R.App. P. 42(b). Plaintiffs Hollonbeck, Iniguez, and Heilveil only appeal the district court's dismissal of their § 504 claims.
On appeal, Plaintiffs argue that (1) the relevant universe for analysis should be all amateur athletes over which the USOC has responsibility; (2) they are "otherwise qualified" for the Athlete Support Programs; (3) the USOC's policy discriminates against them; and (4) the USOC's policy has the effect of screening out amateur athletes with disabilities.
Discussion
We review the grant of a motion for summary judgment de novo, applying the same standard as the district court. Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1112-13 (10th Cir.2007). Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the grant of a Rule 12(b)(6) motion to dismiss de novo as well, considering whether the complaint contains "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). All facts alleged in theHollonbeck complaint are assumed to be true in reviewing the motion to dismiss. The parties stipulated to a set of facts in Shepherd for the purpose of the cross-motions for summary judgment. Aplee. Br. at 5 n. 1. Because the facts are undisputed, we consider whether Plaintiffs state a claim or whether the USOC is entitled to judgment as a matter of law.
Section 504 of the Rehabilitation Act states; "No otherwise qualified, individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." 29 U.S.C. § 794(a). A prima facie case under § 504 consists of proof that (1) plaintiff is handicapped under the Act; (2) he is "otherwise qualified" to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminates against plaintiff. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir.1999).
Plaintiffs first argue that the relevant universe for analysis is all amateur athletes over which the USOC has responsibility, and the district court erred in restricting its discrimination analysis to the Olympics. Plaintiffs argue that the ASA's use of the term "amateur athlete"

and § 504's definition of "program or activity," in light of the history of the definition and precedent applying Title IX, compel an analysis of the USOC programs for Olympic, Pan American, and Paralympic athletes as a whole. Thus, Plaintiffs argue that we should compare the USOC's treatment of all amateur athletes, no matter the competition in which they compete.
The ASA defines "amateur athlete" to be "an athlete who meets the eligibility standards established by the national governing body or paralympic sports organization for the sport in which the athlete competes." 36 U.S.C. § 220501(b)(1). In 1998, the ASA was amended to give the USOC jurisdiction and responsibility over United States participation in the Paralympic Games in addition to the Olympic and Pan American Games. See 36 U.S.C. § 220503; S.Rep. 105-325 (1998). However, the ASA as amended does not direct 1195*1195 the USOC's activities in any detail with respect to Olympic or Paralympic athletes other than requiring it to "obtain . . . the most competent amateur representation possible in each event" of the three competitions. 36 U.S.C. § 220503(4). The mere use of the term "amateur athlete" in the statute does not enlarge the relevant universe to include all athletes under the USOC's purview.
The cases that Plaintiffs rely upon also do not support analyzing the USOC's three programs as a whole. First, Plaintiffs rely on Klinger v. Department of Corrections,where women prisoners sued the Nebraska Department of Corrections under Title IX for failing to provide equal educational opportunities for male and female prisoners.107 F.3d 609, 611 (8th Cir.1997). The prisoners compared the educational opportunities available at their facility with the opportunities available at one specific male facility. Id. at 612. The court rejected the comparison holding that Title IX requires comparison of opportunities for male and female prisoners within the entire prison system taking into account the objective differences between the two populations and other relevant penological and security considerations. Id. at 615-16.
Plaintiffs' reliance on Klinger to alter § 504's definition of "program or activity" is misplaced.[1] The case only holds that, under Title IX, the comparison between only the female facility and one specific male facility is not meaningful. See id. 615-16. A meaningful comparison requires viewing the jails in the context of the security, penological, and size differences among the various facilities. This holding does not support Plaintiffs' theory, and the reasoning in Klinger contradicts Plaintiffs' argument. The court noted that differences in programs between jails are permissible when considering the different circumstances in each jail. See id. at 616. Thus, the case's reasoning suggests that the USOC's three programs should only be compared considering the significant distinctions between each program in purpose, scope, success, and all other relevant differences.

Plaintiffs also rely on two ADA cases to suggest an analysis of the USOC as a whole: Rodde v. Bonta, 357 F.3d 988 (9th Cir.2004), and Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F.Supp. 986 (S.D.Fla.1994). Both cases are readily distinguishable because they involve the consolidation of services for the disabled at a single facility and then cancellation of `those services.See Rodde, 357 F.3d at 998 (noting these similarities in two cases). These cases did not involve separate programs with separate eligibility requirements—they involved the provision of health and recreation services and the cancellation of those services for the disabled on a county-wide basis. Cf. Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir.1996) (concluding that a Hawaii general assistance program is functionally two programs—one for needy families arid one for the needy disabled—and holding that "[t]he ADA does not require equivalent benefits in different programs"). 1196*1196 Nothing in the analysis of these two cases supports a conclusion that the USOC's programs should be analyzed as a whole.
The additional Title IX precedent cited by Plaintiffs is not applicable here because it is based on a regulatory framework unique to the Title IX context. Title IX regulations recognize that separation based on gender may be necessary thus requiring an institutionwide analysis to determine whether a Title IX violation has occurred. See e.g., 34 C.F.R. § 106.41(b), (c); Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 829-32 (10th Cir.1993). Therefore, the relevant universe for analysis under § 504 is the individual programs under the USOC's umbrella. Plaintiffs must show that they are otherwise qualified for the Athlete Support Programs and that the program discriminates against them.
Second, Plaintiffs argue that they are "otherwise qualified" for the Athlete Support Programs because they are amateur athletes under the ASA. A plaintiff is "otherwise qualified" under the Rehabilitation Act if he "is able to meet all of a program's requirements in spite of his [disability]." Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). Normally, if a plaintiff is unable to meet a program's requirements, a court must consider whether reasonable modifications or accommodations Tay be made that do not fundamentally alter the program. SeeSch. Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 288 n. 17, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987); Alexander v. Choate, 469 U.S. 287, 300, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Plaintiffs' argument requires us to accept a premise that we already rejected, namely, that the relevant universe for analysis is all amateur athletes. In the alternative, Plaintiffs contend that the requirement of being on the Olympic team is not an "essential eligibility requirement" to qualify for the Athlete Support Programs. 28 C.F.R. § 41.32(b). Plaintiffs argue that the USOC could open the benefits to Paralympic athletes and that doing so would further the USOC's program as a whole. However, § 504 is not the vehicle to compel discretionary acts of administrators absent discrimination.

Third, Plaintiffs argue that the USOC's policy of excluding Paralympic athletes from Athlete Support Programs is both facially discriminatory and discriminatory by proxy. Even if Plaintiffs were "otherwise qualified" for the benefits, the USOC's policy does not discriminate against Plaintiffs by reason of their disability. First, Plaintiffs err in contending that the eligibility requirements for the Athlete Support Programs are intentionally discriminatory. The criterion that the USOC uses to distribute the benefits under its Resource Allocation Policy is that the athlete must be "eligible to represent the United States and . . . intend to compete, if selected, in the next Olympic or Pan American Games." The policy, on its face, clearly does not contain an explicit requirement of not being disabled. Cf. Bangerter v. Orem City Corp., 46 F.3d 1491, 1500 (10th Cir.1995) (considering a city zoning ordinance for group homes for the disabled that "facially single[d] out the handicapped and appl[ied] different rules to them").
Plaintiffs also contend that the program discriminates against Paralympic athletes by proxy as the policy specifically excludes Paralympic athletes and the term "Paralympic athletes" is a proxy for amateur athletes with disabilities. The designation of "Olympic athlete" as a requirement for Athlete Support Programs is not a proxy for non-disabled athletes because there is no fit between being an Olympic athlete and not being disabled. The requirement of being an Olympic athlete is not "directed 1197*1197at an effect or manifestation of a handicap." McWright v. Alexander, 982 F.2d 222, 228 (7th Cir.1992). Thus, the requirement to be an Olympic athlete to be eligible for the Athlete Support Programs is not discriminatory to Paralympic athletes "by reason of [their] disability." See 29 U.S.C. § 794(a).[2]
Fourth, Plaintiffs argue that the USOC's policy has the effect of screening out amateur athletes with disabilities. Plaintiffs' argument appears to allege that the USOC's policy impermissibly creates a disparate impact on disabled athletes, thus violating § 504. The Supreme Court has held that disparate impact, by itself, does not state a prima facie case under § 504. Choate, 469 U.S. at 299, 105 S.Ct. 712. Rather, actionable disparate impact requires analysis of whether the individual is otherwise qualified and whether reasonable accommodations may provide meaningful access. See id. at 299-301, 105 S.Ct. 712. Plaintiffs raise no additional argument here that we do not address above.
The dissent concludes that Plaintiffs are "otherwise qualified" for the Athlete Support Program because § 504 defines "program or activity" to include "all of the operations or a covered entity. 29 U.S.C. § 794(b). However, Congress included the phrase "all of the operations of" a covered entity in § 504 to ensure that § 504 applies to an institution as a whole once any part of the institution receives federal funds. See supra note 2; see also DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1384-85 (10th Cir.1990). The phrase does not create a parity requirement across an institution's individual

programs (unlike the requirements under the specialized Title IX regulations). Further, the dissent's reading of the statute would change the eligibility requirements set by the USOC— being an Olympic team member—altering the nature of the program. Courts are not free to rewrite eligibility requirements but must analyze whether a plaintiff is "otherwise qualified" against the requirements set by the covered entity. See Davis, 442 U.S. at 413-14, 99 S.Ct: 2361(rejecting a challenge to a nursing program because the requested modifications would have fundamentally altered the purposes and eligibility requirements of the program set by the college). Courts must ask whether reasonable modifications or accommodations may be made that do not fundamentally alter the program, seeChoate, 469 U.S. at 300, 105 S.Ct. 712, or whether the requirement is not an "essential eligibility requirement" to qualify for the benefits or program, 28 C.F.R. § 41.32(b).
The dissent also argues that only extending the benefits at issue to Olympic athletes "has a discriminatory effect" against Paralympic athletes. However, disparate impact, by itself, does not state a prima facie case under § 504. Choate, 469 U.S. at 299, 105 S.Ct. 712. Further, our holding clearly does not permit denying benefits on the basis of gender, as the dissent suggests, because such a classification would be facially discriminatory. Here, the classification is facially neutral and is not "directed at an effect or manifestation of a handicap" as required for proxy discrimination. McWright,982 F.2d at 228.
We sympathize with Plaintiffs' efforts to obtain benefits similar to those received by their Olympic counterparts. However, we cannot modify the Rehabilitation Act to reach a result in their favor absent statutory or regulatory authority to import, 1198*1198wholesale, Title IX regulations and precedent into § 504. See Choate, 469 U.S. at 293 n. 7, 105 S.Ct. 712. Plaintiffs should seek a remedy with the legislative or executive branches, not the courts.
AFFIRMED.
HOLLOWAY, Circuit Judge, dissenting:
I respectfully dissent. Section 504 of the Rehabilitation Act provides that a qualified individual with a disability may not, solely because of his disability, be "excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." 29 U.S.C. § 794(a). What the statute forbids is exactly what has occurred and is occurring here. This, defiance of plain legislative intent is crystalclear from the congressional statement that the Paralympics are "the Olympics for disabled amateur athletes." S.Rep. No. 105-325 at 2, 1998 WL 604018 (1998).
The issues presented.

A prima facie case under section 504 requires proof (1) that the plaintiff has a disability; (2) that plaintiff is otherwise qualified to participate in the program; (3) that the program receives federal money; and (4) that the program discriminated against the plaintiff. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir.1999). In these appeals it is not contested that Plaintiffs have disabilities and that the USOC receives federal money. Therefore, the questions before us are whether the Plaintiffs are "otherwise qualified" to participate in the program and whether the USOC discriminated against the Plaintiffs.
The plaintiffs are qualified to participate in the program.
Quite obviously, this court cannot answer the first question without determining what "the program" is in this case. Indeed, resolution of these appeals turns on whether the USOC is operating one "program" or separate programs, one for the disabled and one for the ablebodied. The clear answer to that question has been provided by Congress. Section 504 defines "program or activity" to include "all of the operations of" the covered entity. 29 U.S.C. § 794(b).[1] Plaintiffs are qualified to participate in the program; they are recognized as elite paralympic athletes whose competition in the Paralympic Games is, Congress has mandated, to be promoted by the USOC.
Thus, this case can and should be resolved by simple application of the plain language of the statute, and this court should reverse the judgment of the district court. The majority reaches the wrong result because its analysis goes off the track at the outset by failing to follow the statutory definition of "program." As noted by the majority, Congress specifically amended the Rehabilitation Act and other statutes to broaden the definition of "program or activity." Maj. op. at 1195, n. 1. But the majority inexplicably ignores the definition, insisting that the definition is of no moment because it is undisputed in this appeal that the Act "applies to all of the USOC'sprograms . . ." Id. (emphasis added).[2]
1199*1199 This use of the plural reveals the circular nature of the majority's analysis. The underlying issue (easily resolved by the plain language of the statute) is whether, in examining the USOC's challenged activities, we should consider the USOC as operating a single program or several separate ones. The majority incorrectlyassumes —there is certainly no explanation for the approach—that we are dealing with separate programs. And it is only by ignoring the statutory definition and making this assumption of dealing with separate programs that the majority is able to assert that the unequal treatment afforded to the Plaintiffs is permissible.
Not only does the majority ignore the statutory definition of "program," but its assumption that separate programs are involved exonerates the USOC for doing just what the Supreme Court instructs must not be done—defining the benefit "in a way that effectively denies

otherwise qualified handicapped individuals the meaningful access to which they are entitled. . . ." Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985).
The USOC's program discriminates against the plaintiffs.
Plaintiffs are subject to discrimination by being denied access to benefits that are provided to Olympic and Pan American Games athletes who are not disabled. The USOC's practice of providing health insurance and other benefits to Olympic and Pan American Games athletes, but not Paralympic athletes, clearly has a discriminatory effect. Section 504 prohibits not only intentional discrimination but, I am satisfied, also the use of criteria or methods of administration such as those involved here that have the effect of subjecting people with disabilities to discrimination. 28 C.F.R. § 41.5 1(b)(3)(1). See also Alexander v. Choate, 469 U.S. at 299, 105 S.Ct. 712.[3]
Denying benefits to Plaintiffs because they are athletes training for the Paralympic Games, and not the Olympic or Pan American Games, is a proxy for discriminating against them because of their disabilities. The majority's assertion that "there is no fit between being an Olympic athlete and not being disabled," maj. op. at 1196, demonstrates the faulty aim of its analysis. Presumably the majority would not countenance the denial of equal benefits based on gender. Yet, if such blatant discrimination existed, even then it could be said that there was "no fit" between being an Olympic athlete and being male. The USOC has shown four examples in one hundred years of disabled athletes who have competed in the Olympics or Pan American Games. The exceptions prove the rule: The policy of awarding benefits to athletes training for the Olympics or the Pan American Games while excluding those training for the Paralympic Games discriminates against the disabled. The reason that courts inquire about the "fit" between a practice and a class of protected individuals is because the fact that a practice does not discriminate against everymember of a protected class is not sufficient to show that members of the protected class have the meaningful access to which they are entitled. See Lovell v. Chandler,303 F.3d 1039, 1054 (9th Cir. 2002).
1200*1200 For these reasons I am compelled to respectfully but emphatically dissent.
[1] In Grove City College v. Bell, the Supreme Court held that receipt of federal funds by a college's financial aid office did not trigger institution-wide Title IX coverage because the financial aid office was the "program or activity receiving Federal financial assistance." 465 U.S. 555, 570-72, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984) (quoting 20 U. S .C. § 1681(a)). The Civil Rights Restoration Act of 1987, Pub.L. No. 100-259, 102 Stat. 28, abrogated the. Supreme Court's holding in Bell and broadened the Court's narrow definition of "program or activity" to expand the application of Title IX, the Rehabilitation Act, Title VI, and the Age Discrimination Act to an entire institution if any part of the institution receives federal funds. There is no dispute that the Rehabilitation Act applies to all of the USOC's programs, so this analysis is inapposite here.

[2] Plaintiffs also refer in their briefs to a "separate benefit" regulation in 28 C.F.R. § 41.51(b)(1)(iv), and note that it is irrelevant to our analysis. We agree that it is irrelevant to our analysis for a different reason—Plaintiffs are not "qualified" as required by the regulation.
[1] The district court expressed substantial doubt about whether the USOC is a "covered entity." That question is not before this court, however, as the USOC has not argued that the judgment should be affirmed on the alternative ground that it is not subject to the Act.
[2] Indeed, the majority even accuses Plaintiffs of trying to "alter" section 504's definition of "program or activity" by discussing the reasoning of Klinger v. Dept. of Corrections, 107 F.3d 609 (8th Cir.1997),I fail to see how Plaintiffs are trying to "alter" the definition. Plaintiffs rely on the legislative definition of "program," while the majority ignores it.
[3] In Choate, the Court assumed without deciding that section 504 reaches conduct that has a disparate impact on the disabled, after having noted compelling reasons to conclude that Congress intended such an interpretation and that all the circuits that have reached the issue had reached that conclusion. 469 U.S. at 295-97 & n. 17, 105 S.Ct. 712. In the instant appeal, the defendants do not contend otherwise.