Rochelle Flynn v. Distinctive Home Care, Inc.

Case: 15-50314 Document: 00513364011 Page: 1 Date Filed: 02/01/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-50314 FILED

February 1, 2016

ROCHELLE FLYNN, Lyle W. Cayce

Clerk

Plaintiff - Appellant

v.

DISTINCTIVE HOME CARE, INCORPORATED, doing business as

Distinctive Healthcare Staffing, Incorporated,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this case, we must decide whether Section 504 of the Rehabilitation

Act authorizes employment discrimination suits by independent contractors.

We conclude that it does. We therefore vacate the district court’s judgment in

part and remand for further proceedings.

I.

The parties do not dispute the facts essential to the resolution of this

appeal. Plaintiff-Appellant Dr. Rochelle Flynn is a contract pediatrician.

Spectrum Healthcare Resources, Inc. (“Spectrum”) contracted with the United

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States Air Force to provide medical services at the Lackland Air Force Base in

San Antonio, Texas. Spectrum and Flynn entered into a contract whereby

Flynn agreed to provide clinical pediatric services at the San Antonio Military

Medical Center for twenty hours per week. The agreement explicitly provided

that “[t]he relationship between [Spectrum] and [Flynn] would be that of

independent contractor,” such that Spectrum “w[ould] not control or have the

right to exercise control over the manner or means in which” Flynn performed

medical services at the base. Flynn subsequently assigned her rights under the

contract to Skwids and Skwiggles Pediatrics, PLLC (“Skwids & Skwiggles”), a

professional company managed by Flynn.

Spectrum’s contract with the Government terminated in March 2013.

Defendant-Appellee Distinctive Home Care, Inc., d/b/a Distinctive Healthcare

Staffing, Inc. (“Distinctive”) took over Spectrum’s duties to provide medical

services at Lackland. However, Distinctive “retained Spectrum as a

subcontractor” on the government contract, such that “Spectrum continued to

directly communicate with the independent contractors” providing medical

services at the base, including Flynn.

Distinctive entered into a new contract with Skwids & Skwiggles in April

2013. Pursuant to the new agreement, Skwids & Skwiggles “agree[d] to provide

a physician, specifically [Flynn], to perform clinical professional pediatric

services” at the San Antonio facility “for at least 936 hours per year.” Like the

agreement between Flynn and Spectrum, the agreement between Skwids &

Skwiggles and Distinctive explicitly provided that “[t]he relationship between

[Distinctive] and [Skwids & Skwiggles]/[Flynn] shall be that of independent

contractor,” such that Distinctive “w[ould] not control or have the right to

exercise control over the manner or means in which” Skwids & Skwiggles or

Flynn performed medical services at the base.

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On May 15, 2013, Flynn’s psychologist diagnosed Flynn with Autism

Spectrum Disorder-Mild (“ASD-M”), a condition formerly known as “Asperger’s

Syndrome.” ASD-M is a psychological disorder characterized by significant

difficulties in nonverbal communication and social interaction, as well as

restricted and repetitive patterns of behavior and interests.

Around that same date, David Warner, the government officer

responsible for overseeing Distinctive’s contract with the Air Force, contacted

Distinctive’s president. Warner “raised several concerns with Dr. Flynn’s

performance, including several complaints from patients and co-workers, Dr.

Flynn’s failure to report to work on time and her failure to timely complete

patient charts.” Warner “stated that it was in the best interest of the

Government if Dr. Flynn was removed from providing services” under

Distinctive’s contract with the Air Force.

On May 16, 2013, a Spectrum employee named Dr. Richard Takao

informed Flynn that the clinic was concerned about her performance. In

response, Flynn informed Takao that her psychologist had diagnosed her with

ASD-M the previous day. Flynn believes that her condition “would explain

many of the issues that were of concern to” Distinctive and Spectrum. No one

at Distinctive or Spectrum knew that Flynn had ASD-M before May 16, 2013.

On or about May 30, 2013, Warner sent Distinctive an e-mail containing

documentation that purportedly “substantiat[ed] the allegations of poor

performance and patient complaints” against Flynn. Warner, “on behalf of the

Government,” again “directed that Dr. Flynn be removed from” her duties as

an independent contractor.

Flynn, Spectrum, and Distinctive held a conference call on June 7, 2013,

during which Flynn asked to be reinstated with accommodations. Distinctive

and Spectrum discussed Flynn’s requested accommodations with the Air Force.

On June 28, 2013, the Government responded that it could not accommodate

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Flynn’s request. Spectrum and Distinctive therefore informed Flynn that they

would not retain her as an independent contractor.

Flynn sued Spectrum and Distinctive for employment discrimination

under the Rehabilitation Act. 1 She claims that Spectrum and Distinctive

“discriminated against [her] on the basis of her disability, subjected [her] to a

hostile work environment based on her disability, and denied her a reasonable

accommodation.”

The district court concluded that Flynn could not sue Spectrum or

Distinctive for employment discrimination under the Rehabilitation Act

because she was an independent contractor, not an employee. The court

accordingly granted summary judgment in Spectrum and Distinctive’s favor

on Flynn’s Rehabilitation Act claims.

Flynn now appeals. The AARP and Disability Rights Texas have filed a

joint amicus brief in support of Flynn.

The parties jointly moved to dismiss the appeal as to Spectrum, and we

granted that motion. Distinctive is therefore the only remaining appellee in

this case.

II.

We review a district court’s order granting summary judgment de novo. 2

“The court shall grant summary judgment if the movant shows that there is no

1Flynn also raised state law breach of contract claims against Distinctive and

Spectrum. The district court granted summary judgment in Distinctive and Spectrum’s favor

on those claims. Flynn does not challenge that aspect of the district court’s summary

judgment order on appeal.

2 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (citing Threadgill v.

Prudential Sec. Grp., Inc., 145 F.3d 286, 292 (5th Cir. 1998)).

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genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” 3

III.

This appeal concerns an issue of first impression in our Circuit: May an

independent contractor who lacks an employer-employee relationship with the

defendant sue that defendant for employment discrimination under Section

504 of the Rehabilitation Act? Our sister Circuits have split on that issue, 4 and

the Supreme Court has not resolved the split. 5 We turn now to that question.

A.

1.

The Rehabilitation Act of 1973 “was the ‘first major federal statute

designed to protect the rights of the handicapped people of this country.’” 6 The

3 FED. R. CIV. P. 56(a).

4 Compare Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009), cert.

denied, 561 U.S. 1006 (2010) (“[T]he Rehabilitation Act covers discrimination claims by an

independent contractor.”) with Wojewski v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338, 345

(8th Cir. 2006) (“With respect to Dr. Wojewski’s claims under . . . the Rehabilitation Act, we

affirm the grant of summary judgment to the defendants because Dr. Wojewski was not an

employee of the hospital.”).

See also Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 969-75 (10th Cir. 2002)

(holding that the Rehabilitation Act does not incorporate the ADA’s requirement that the

employer have “fifteen or more employees”); Hiler v. Brown, 177 F.3d 542, 546 (6th Cir. 1999)

(“[I]ndividuals who are not employers under Title VII cannot be held personally liable for

retaliation under the Rehabilitation Act.”); Cortes-Rivera v. Dep’t of Corr. & Rehab of the

Commonwealth of P.R., 626 F.3d 21, 26-27 (1st Cir. 2010) (“declin[ing] to address” whether

the Rehabilitation Act permits an independent contractor to sue for employment

discrimination because the plaintiff “neither preserved nor adequately presented” that issue

in the district court or on appeal); LEX K. LARSON, EMPLOYMENT DISCRIMINATION § 163.02

(2d ed. 2015) (explaining that “[c]ourts are not in agreement as to whether § 504” of the

Rehabilitation Act “incorporat[es] the ADA’s definition of ‘employer’”).

5 See Yuma Anesthesia Med. Servs. LLC v. Fleming, 561 U.S. 1006 (2010) (denying

certiorari in Fleming, 587 F.3d 938).

6 Fleming, 587 F.3d at 940 (ellipsis omitted) (quoting Smith v. Barton, 914 F.2d 1330,

1338 (9th Cir. 1990)).

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current form of Section 504 of the Rehabilitation Act, codified at 29 U.S.C. §

794, provides in relevant part:

No 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 or under any program or activity conducted by

any Executive agency or by the United States Postal Service. 7

Thus, Section 504 “broadly prohibit[s] discrimination” – including employment

discrimination – “against disabled persons in federally assisted programs or

activities.” 8

2.

Because Section 504 of the Rehabilitation Act “bars discrimination only

in programs that receive federal financial assistance,” it does not broadly

“protect[] the disabled from discrimination in the private sector.” 9 To fill that

gap, Congress enacted the Americans with Disabilities Act (“ADA”) in 1990.

Title I is the subchapter of the ADA that prohibits employment

discrimination. 10 Title I prohibits any “covered entity” from “discriminat[ing]

against a qualified individual on the basis of disability in regard to job

application procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions, and

privileges of employment.” 11 The term “covered entity” includes any

7 29 U.S.C. § 794(a).

8 D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010).

See also Butler v. Thornburgh, 900 F.2d 871, 874 (5th Cir. 1990) (“The Rehabilitation Act . .

. prohibits . . . employment discrimination against handicapped persons.”).

9 Gary S. Gildin, Dis-Qualified Immunity for Discrimination Against the Disabled,

1999 U. ILL. L. REV. 897, 905 (1999).

10 42 U.S.C. §§ 12111-17.

11 Id. § 12112(a).

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“employer.” 12 However, not every entity that hires employees counts as an

“employer” within the meaning of Title I; Congress defined that term to exclude

entities with fewer than fifteen employees; 13 the United States and

corporations wholly owned by the United States; 14 Indian tribes; 15 and a

limited subset of tax-exempt organizations. 16

3.

Soon after Congress enacted the ADA, it became concerned about

potential inconsistencies between the Rehabilitation Act and the ADA. The

Senate Subcommittee on Disability Policy held a hearing at which numerous

witnesses “testified repeatedly regarding the importance of the passage of the

Americans with Disabilities Act and the need to include the philosophies

embodied in the ADA in the Rehabilitation Act.” 17 To assuage these concerns,

Congress added subsection (d) to Section 504 of the Rehabilitation Act, which

incorporated portions of the ADA by reference:

The standards used to determine whether [Section 504 of the

Rehabilitation Act] has been violated in a complaint alleging

employment discrimination under this section shall be the

standards applied under title I of the Americans with Disabilities

Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections

501 through 504, and 510, of the Americans with Disabilities Act

of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections

relate to employment. 18

As Senator Harkin, the sponsor of the Senate bill, explained,

12 Id. § 12111(2). “Covered entity” also includes any “employment agency, labor

organization, or joint labor-management committee.” Id.

13 Id. § 12111(5)(A).

14 Id. § 12111(5)(B)(i).

15 Id.

16 Id. § 12111(5)(B)(ii).

17 S. REP. NO. 102-357, at 7 (1992).

18 29 U.S.C. § 794(d).

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Now those who are covered by title V of the Rehabilitation Act will

know that these are the definitions of reasonable accommodation

and discrimination that apply. They will also know that the

standards governing preemployment inquiries and examinations,

and inquiries of current employees apply. Incorporating the ADA

standards into the Rehabilitation Act will assure that there will be

consistent, equitable treatment for both individuals with

disabilities and businesses under the two laws. 19

B.

Although this Circuit has not directly addressed the issue, other federal

circuit and district courts overwhelmingly agree that a plaintiff may only sue

a defendant under Title I of the ADA if the plaintiff is an employee, rather than

an independent contractor, of the defendant. 20 Flynn concedes she was an

independent contractor, not an employee, of Distinctive. As a result, Flynn

cannot sue Distinctive under Title I of the ADA.

Flynn instead sued Distinctive for employment discrimination under

Section 504 of the Rehabilitation Act. Distinctive does not dispute that it

receives federal financial assistance, so Distinctive is subject to suit under the

Rehabilitation Act. The question, then, is whether Section 504(d) of the

Rehabilitation Act incorporates Title I’s prohibition on employment

discrimination suits brought by independent contractors. If it does, then we

must affirm the judgment in Distinctive’s favor. If, by contrast, the

19 Schrader, 296 F.3d at 974 (emphasis omitted) (quoting 138 Cong. Rec. S16611

(statement of Senator Harkin)).

20 Wojewski, 450 F.3d at 342 (citing Lerohl v. Friends of Minn. Sinfonia, 322 F.3d 486,

489 (8th Cir. 2003)); Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 642 (7th Cir.

2004) (““[T]he . . . ADA only protect[s] ‘employees’ and not independent contractors.” (citing

Aberman v. J. Abouchar & Sons, Inc., 160 F.3d 1148, 1150 (7th Cir. 1998))); Johnson v. City

of Saline, 151 F.3d 564, 567-69 (6th Cir. 1998); Born v. Aberdeen Police Dep’t, Civil Action

No. 13–2963 (JAP)(TJB), 2014 WL 2451289, at *3 (D.N.J. June 2, 2014); Earl v. Clovis

Unified Sch. Dist., No. 1:11–CV–01731–LJO–BAM, 2012 WL 5304738, at *5 (E.D. Cal. Oct.

25, 2012); Edwards v. Creoks Mental Health Servs., Inc., 505 F. Supp. 2d 1080, 1088-89 (N.D.

Okla. 2007); Reith v. TXU Corp., No. 4:05CV33, 2006 WL 887413, at *3 (E.D. Tex. Apr. 4,

2006).

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Rehabilitation Act does not incorporate this limitation, then Flynn’s

Rehabilitation Act claims may proceed even though she was not Distinctive’s

employee.

C.

For the following reasons, we conclude that Section 504(d) does not

incorporate this limitation in Title I of the ADA.

We agree with the Ninth and Tenth Circuits that the Rehabilitation Act

does not incorporate Title I’s requirement that the defendant be the plaintiff’s

“employer” as that term is defined in the ADA. 21 Unlike Title I of the ADA,

Section 504 of the Rehabilitation Act is not limited to the employment context.

To reiterate, Title I prohibits discrimination “in regard to job application

procedures, the hiring, advancement, or discharge of employees, employee

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

employment.” 22 Section 504 of the Rehabilitation Act, by contrast, is far

broader. 23 It prohibits discrimination “under any program or activity receiving

Federal financial assistance,” 24 and “program or activity” is defined to include

“all of the operations of . . . an entire corporation, partnership, or other private

organization, or an entire sole proprietorship.” 25 Thus, based on the plain

language of the statute, the Ninth Circuit reasoned that “the Rehabilitation

21 See Fleming, 587 F.3d at 946 (“We hold that § 504 of the Rehabilitation Act is not

limited to employers and employees as defined in Title I of the ADA.”); Schrader, 296 F.3d at

969 (“In this appeal, we hold that § 504(d) of the Rehabilitation Act . . . does not incorporate

the ADA definition of an ‘employer’ . . .”).

22 42 U.S.C. § 12112(a).

23 Fleming, 587 F.3d at 941-42.

See also D.A. ex rel. Latasha A., 629 F.3d at 453 (stating that § 504 “broadly prohibit[s]

discrimination against disabled persons in federally assisted programs or activities”).

24 29 U.S.C. § 794(a) (emphasis added).

25 Id. § 794(b) (emphasis added).

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Act covers ‘all of the operations’ of covered entities, not only those related to

employment.” 26

The Ninth and Tenth Circuits’ conclusion that the Rehabilitation Act

does not completely incorporate the terms of the ADA is consistent with our

opinion in Soledad v. United States Department of Treasury, 304 F.3d 500 (5th

Cir. 2002). In that case, we considered whether Section 504(d) of the

Rehabilitation Act incorporates Title I’s causation standard in employment

discrimination cases. “Under the ADA, ‘discrimination need not be the sole

reason for the adverse employment decision’” as long as the discrimination

“‘actually play[s] a role in the employer’s decision making process and ha[s] a

determinative influence on the outcome.’” 27 Section 504(a) of the Rehabilitation

Act, by contrast, explicitly provides that discrimination is actionable only if it

occurs “solely by reason of” the plaintiff’s disability. 28

We concluded in Soledad that Section 504(a)’s explicit sole causation

language trumped the more general incorporation language in Section 504(d).

“A provision must be considered in its context and the more specific provision

within a statute prevails. The causation standard of [Section 504(a) of the

Rehabilitation Act] requiring that the discrimination be ‘solely by reason of her

or his disability,’ is clearly . . . more specific” than Section 504(d)’s more general

language incorporating standards from Title I. 29 Thus, Section 504(d) does not

incorporate standards from Title I that would conflict with the Rehabilitation

Act’s plain language.

26 Fleming, 587 F.3d at 942 (quoting 29 U.S.C. § 794(b)). Accord Schrader, 296 F.3d at

972 (quoting Johnson v. N.Y. Hosp., 897 F. Supp. 83, 86 (S.D.N.Y. 1995)).

27 Soledad v. U.S. Dep’t of Treas., 304 F.3d 500, 503-04 (5th Cir. 2002) (emphasis

added) (quoting Ahrens v. Perot Sys. Corp., 205 F.3d 831, 835 (5th Cir. 2000)).

28 29 U.S.C. § 794(a) (emphasis added).

29 Soledad, 304 F.3d at 505.

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In this case, Section 504(a) contains explicit language specifically

authorizing discrimination suits against “any program or activity receiving

Federal financial assistance.” 30 Importing Title I’s requirement that the

plaintiff and the defendant have an employee-employer relationship would

therefore conflict with the plain language of the Rehabilitation Act, which

broadly authorizes discrimination suits against a wide variety of entities,

including non-employers. Thus, Section 504(d) does not incorporate this

limitation.

We also agree with our sister Circuits that the language of Section 504(d)

does not incorporate Title I in its entirety. Instead, Section 504(d) specifies that

the ADA’s “standards” are to be used “to determine whether [the Rehabilitation

Act] has been violated.” 31 The Rehabilitation Act “does not state . . . that the

standards of the ADA are to be used to determine whether an employer is even

subject to the Rehabilitation Act in the first instance.” 32 We therefore agree

with the Ninth and Tenth Circuits that the Rehabilitation Act adopts “only the

substantive standards for determining what conduct violates the

Rehabilitation Act, not the definition of who is covered” under the

Rehabilitation Act. 33

Because the Rehabilitation Act does not incorporate Title I’s standards

for determining which entities may be held liable for employment

discrimination, it does not incorporate Title I’s requirement that the defendant

be the plaintiff’s employer. Consequently, the fact that a plaintiff is an

independent contractor of the defendant is not fatal to the plaintiff’s

Rehabilitation Act claim.

30 29 U.S.C. § 794(a).

31 Id. § 794(d). Accord Schrader, 296 F.3d at 972 (quoting N.Y. Hosp., 897 F. Supp. at

86).

32 Schrader, 296 F.3d at 972 (quoting N.Y. Hosp., 897 F. Supp. at 86).

33 Fleming, 587 F.3d at 944 (emphasis in original) (quoting Schrader, 296 F.3d at 972).

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D.

Distinctive raises several arguments in support of the district court’s

order dismissing it on the grounds that Flynn, as an independent contractor,

cannot assert a claim under the Rehabilitation Act. We consider those

arguments below.

1.

Distinctive relies on Wojewski v. Rapid City Regional Hospital, Inc., 450

F.3d 338 (8th Cir. 2006), in which the Eighth Circuit ruled that the

Rehabilitation Act does indeed incorporate Title I’s bar on employment

discrimination suits by independent contractors. However, with respect to our

colleagues on the Eighth Circuit, we find the Wojewski decision unpersuasive.

The Eighth Circuit gave three reasons for its holding. First, the court

reasoned that the ADA and the Rehabilitation Act are “similar in substance,”

such that “cases interpreting either are applicable and interchangeable.” 34

Because “[t]he ADA requires an employee-employer relationship,” the court

ruled that the Rehabilitation Act does as well. 35 However, as we explained

above, Section 504 of the Rehabilitation Act materially differs from Title I of

the ADA because it “specifically defines the entities to which it applies, and

does not address employers.” 36 To reiterate, the Rehabilitation Act prohibits

discrimination “under any program or activity receiving Federal financial

assistance,” 37 where “program or activity” is defined to include “all of the

operations of . . . an entire corporation, partnership, or other private

34 450 F.3d at 344 (quoting Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998)).

35 Id. at 345.

36 Fleming, 587 F.3d at 946 (citing 29 U.S.C. §§ 705(20), 794(a)-(b)).

37 29 U.S.C. § 794(a) (emphasis added)

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organization, or an entire sole proprietorship.” 38 Title I and Section 504 do not

cover the same entities, so the two statutes are not perfectly interchangeable. 39

Second, the Wojewski court observed that, as of 2006, no other court had

yet decided that “a non-employee can be a qualified individual under § 504” of

the Rehabilitation Act. 40 Thus, “absent authority to the contrary,” the court

“construe[d] both” the ADA and the Rehabilitation Act “to apply to an

employee-employer relationship” only. 41 Since 2006, however, the Ninth

Circuit has squarely held that an independent contractor who lacks an

employee-employer relationship with the defendant may nonetheless sue that

defendant for employment discrimination under the Rehabilitation Act. 42

Finally, the Wojewski court relied upon an earlier Eighth Circuit decision

interpreting a regulation promulgated by the Department of Health and

Human Services, which provides that the term “qualified handicapped person”

means, “[w]ith respect to employment, a handicapped person who, with

reasonable accommodation, can perform the essential functions of the job in

question.” 43 The court concluded that “the relevant portion of the regulations

couches the scope of the Rehabilitation Act in terms of employment.” 44

Respectfully, we fail to see how this definition of “qualified handicapped

person” has any bearing on whether the Rehabilitation Act authorizes suits by

independent contractors or the degree to which Section 504(d) incorporates

Title I of the ADA.

38 Id. § 794(b) (emphasis added).

39 Fleming, 587 F.3d at 942 (quoting 29 U.S.C. § 794(b)). Accord Schrader, 296 F.3d at

972 (quoting N.Y. Hosp., 897 F. Supp. at 86).

40 450 F.3d at 344.

41 Id. at 345.

42 Fleming, 587 F.3d at 939-46.

43 45 C.F.R. § 84.3(l)(1); Wojewski, 450 F.3d at 345 (citing Beauford v. Father

Flanagan’s Boys’ Home, 831 F.3d 768, 771 (8th Cir. 1987)).

44 Wojewski, 450 F.3d at 345.

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Thus, we find the Ninth Circuit’s opinion in Fleming more persuasive

than the Eighth Circuit’s opinion in Wojewski. 45

2.

According to Distinctive, this Court’s opinion in Lollar v. Baker, 196 F.3d

603 (5th Cir. 1999) holds that “a plaintiff cannot bring a Section 504

employment discrimination claim against a defendant that is not the plaintiff’s

employer.” Distinctive misunderstands our decision in that case. Lollar holds

that a plaintiff may not sue her supervisor individually for employment

discrimination under Section 504 of the Rehabilitation Act, not because the

supervisor is not the plaintiff’s employer, but rather because the individual

supervisor does not herself receive federal financial assistance. 46 Distinctive

does not dispute that it receives federal funds. Thus, our decision in Lollar does

not bar Flynn’s suit against Distinctive.

45 Distinctive also asks us to follow the Sixth Circuit’s decision in Hiler v. Brown,

which holds that “individuals who are not employers under Title VII cannot be held

personally liable for retaliation under the Rehabilitation Act.” 177 F.3d at 546. Hiler did not

involve an independent contractor, so it does not squarely address the issue before us. See

Fleming, 587 F.3d at 946. Moreover, several Circuits have disapproved of Hiler. The Tenth

Circuit criticized Hiler for “broadly stat[ing], without analysis, that ‘[t]he ADA, ADEA, and

the Rehabilitation Act borrowed the definition of “employer” from Title VII.’” Schrader, 296

F.3d at 975 (quoting Hiler, 177 F.3d at 546 n.5). Likewise, per the Ninth Circuit: “Though

Hiler states that the Rehabilitation Act borrowed the definition of employer from Title VII, §

504 specifically defines the entities to which it applies, and does not address employers.”

Fleming, 587 F.3d at 946 (citing 29 U.S.C. §§ 705(20), 794(a)-(b)). Thus, “Hiler does not speak

to the issue in the case before us, and to the extent it does, we are not moved by its analysis.”

Id.

46 196 F.3d at 609 (“Here it is clear that [the state agency] – not [the plaintiff’s

supervisor] – is the program recipient of the federal financial assistance. Consequently,

Lollar cannot sue [her supervisor], individually, under the [Rehabilitation] Act.” (citations

omitted)).

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3.

Distinctive also cites our statement in Frame v. City of Arlington, 657

F.3d 215 (5th Cir. 2011) (en banc), that “[t]he ADA and the Rehabilitation Act

generally are interpreted in pari materia.” 47 That excerpt, at first blush, could

suggest that the Rehabilitation Act incorporates Title I of the ADA in its

entirety.

However, Frame does not hold that Section 504 of the Rehabilitation Act

adopts Title I’s limitation on employment discrimination suits by independent

contractors. Frame was not an employment discrimination case at all; the

plaintiffs in Frame were city residents with disabilities who were unable to use

their motorized wheelchairs on the city’s non-handicap-accessible sidewalks.

Thus, the relevant question in Frame was the degree to which Section 504 of

the Rehabilitation Act incorporates the provisions of Title II – not Title I – of

the ADA in cases challenging “disability discrimination in the provision of

public services.” 48 Frame has no bearing on the issue before this panel.

In any event, even if “[t]he ADA and the Rehabilitation Act generally are

interpreted in pari materia,” 49 that does not mean that the two statutes are

always interpreted identically. As we explained above, we agree that the

Rehabilitation Act generally adopts “the substantive standards for

determining what conduct violates” Title I of the ADA. 50 We merely hold – as

47 657 F.3d at 223 (citing Kemp v. Holder, 610 F.3d 231, 234-35 (5th Cir. 2010); Pace

v. Bogalusa City Sch. Bd., 403 F.3d 272, 287-88, 289 n.76 (5th Cir. 2005) (en banc)).

48 Id. at 223. See also id. at 231 (“Because we interpret Title II and § 504 of the

Rehabilitation Act in pari materia, we hold that § 504 extends to such sidewalks as well.”

(emphasis added)).

Indeed, Title II does not apply in employment discrimination cases at all. Taylor v.

City of Shreveport, 798 F.3d 276, 282 (5th Cir. 2015) (“Unlike Title I of the ADA, Title II does

not create a cause of action for employment discrimination.” (citations omitted)).

49 Frame, 657 F.3d at 223 (emphasis added) (citing Kemp, 610 F.3d at 234-35; Pace,

403 F.3d at 287-88, 289 n.76).

50 Fleming, 587 F.3d at 944 (emphasis in original) (quoting Schrader, 296 F.3d at 972).

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our sister Circuits have held – that Section 504 does not incorporate “the

definition of who is covered under” Title I. 51

4.

Finally, the district court relied on our unpublished per curiam opinion

in Luna v. Roche, 89 F. App’x 878 (5th Cir. 2004) when it granted summary

judgment in Distinctive’s favor. In that case, a former Air Force employee

alleged that “the Air Force discriminated against him” in violation of Section

504 of the Rehabilitation Act “when it terminated his disability retirement

benefits.” 52 This Court ruled that the former employee “lacked standing to

pursue his discrimination claims involving his terminated benefits” because he

“was neither an employee of the Air Force, nor an applicant for employment

with the Air Force, when his disability retirement benefits were terminated.” 53

The Court stated, with no analysis or citation to authority, that employment

discrimination claims under the Rehabilitation Act “require the existence of an

employer-employee relationship.” 54 To the extent Luna bears on the issue

before this panel, we decline to follow it for the reasons described above. 55

IV.

In sum, we conclude that Section 504 of the Rehabilitation Act permits

employment discrimination suits by independent contractors. Flynn’s

But see Soledad, 304 F.3d at 505 (holding that the Rehabilitation Act does not

incorporate Title I’s causation standard).

51 Fleming, 587 F.3d at 944 (emphasis in original) (quoting Schrader, 296 F.3d at 972).

52 89 F. App’x at 880-81.

53 Id. at 881.

54 Id.

55 See 5TH CIR. R. 47.5.4 (“Unpublished opinions issued on or after January 1, 1996,

are not precedent.”).

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discrimination, hostile work environment, and accommodation claims against

Distinctive may therefore proceed to a merits determination.

Distinctive maintains that it is nonetheless entitled to summary

judgment on the merits because “(1) Dr. Flynn did not establish her disability

substantially limits one or more of her major life activities; (2) there is no

evidence Dr. Flynn’s contract was terminated solely because of her condition;

and (3) the decision to terminate Dr. Flynn’s contract was made by the

Government, not [Distinctive].” However, the district court did not reach the

merits or rule on those issues. The district court should have an opportunity to

consider the merits in the first instance. We therefore vacate the judgment in

part 56 and remand for further proceedings.

VACATED in part and REMANDED for further proceedings.

56 We leave the judgment intact to the extent the district court granted summary

judgment in Distinctive’s favor on Flynn’s state law breach of contract claims because Flynn

did not appeal that aspect of the judgment. We also leave the judgment in Spectrum’s favor

intact because the parties have jointly dismissed Spectrum from this appeal.

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