     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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                                 No. 15-50314
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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                                     No. 15-50314
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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                                       No. 15-50314
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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                                       No. 15-50314
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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                                    No. 15-50314
“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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                                       No. 15-50314
       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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                                        No. 15-50314
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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                                      No. 15-50314
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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                                      No. 15-50314
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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                                        No. 15-50314
       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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                                       No. 15-50314
                                              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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                                       No. 15-50314
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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                                      No. 15-50314
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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