                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-1998

Menkowitz v. Pottstown Memorial
Precedential or Non-Precedential:

Docket 97-2041




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Filed August 24, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-2041

ELLIOT MENKOWITZ, M.D.; SUSAN MENKOWITZ

       Appellants

v.

POTTSTOWN MEMORIAL MEDICAL CENTER; RICHARD
SAYLOR, M.D., INDIVIDUALLY AND AS AN AGENT OF
POTTSTOWN MEMORIAL MEDICAL CENTER; PATRICIA
DRAXLER, R.N., INDIVIDUALLY AND AS AN AGENT OF
POTTSTOWN MEMORIAL MEDICAL CENTER; HENRY
POLLAK, INDIVIDUALLY AND AS AGENT OF POTTSTOWN
MEMORIAL MEDICAL CENTER; JOHN J. BUCKLEY,
INDIVIDUALLY AS AN AGENT OF POTTSTOWN
MEMORIAL MEDICAL CENTER; MILTON D. MARTYNY,
INDIVIDUALLY AND AS AN AGENT OF POTTSTOWN
MEMORIAL MEDICAL CENTER; JOSEPH KRANTZLER,
M.D., INDIVIDUALLY AND AS AN AGENT OF POTTSTOWN
MEMORIAL MEDICAL CENTER; JOHN LIGNELLI, D.D.S.,
INDIVIDUALLY AND AS AN AGENT OF POTTSTOWN
MEMORIAL MEDICAL CENTER

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 97-cv-02669)

Argued June 5, 1998

Before: SCIRICA, NYGAARD and SEITZ, Circuit Judges

(Opinion Filed August 24, 1998)
       Alan B. Epstein (Argued)
       Scott A. Burr
       JABLON, EPSTEIN, WOLF &
        DRUCKER
       The Bellevue, Ninth Floor
       Broad and Walnut Streets
       Philadelphia, Pennsylvania 19102
        Attorneys for Appellants

       Bill Lann Lee
       Acting Assistant Attorney General

       Jessica Dunsay Silver (Argued)
       Marie K. McElderry
       P.O. Box 66078
       Washington, D.C. 20035-6078
        Attorneys for Department of Justice

       Norman E. Greenspan (#17631)
        (Argued)
       George J. Krueger (#30501)
       Jordana Cooper (#62375)
       Lesley S. Bonney (#77868)
       Rebecca C. Ward (#79547)
       Blank, Rome, Comisky &
        McCauley LLP
       One Logan Square
       Philadelphia, Pennsylvania 19103
        Attorneys for Appellees

OPINION OF THE COURT

SEITZ, Circuit Judge.

Dr. Eliot Menkowitz ("appellant") appeals the order of the
district court granting defendants' Fed. R. Civ. P. 12(b)(6)
motion to dismiss claims brought under the Americans
with Disabilities Act, 42 U.S.C. SS 12101-12213 (1994) ("the
ADA"), and section 504 of the Rehabilitation Act of 1973, 29
U.S.C. S 794 (1994) ("the Rehabilitation Act"). In contesting
the district court's interpretation of the ADA, appellant
raises an issue of first impression in our court-- namely,
whether Title III of the ADA, 42 U.S.C. SS 12181-12189

                               2
("Title III"), prohibits disability discrimination against a
medical doctor with "staff privileges" at a hospital.
Appellant also disputes the district court's causation
analysis under section 504 of the Rehabilitation Act. The
district court exercised subject matter jurisdiction pursuant
to 28 U.S.C. S 1331 (1994). Our jurisdiction to consider
these issues arises under 28 U.S.C. S 1291 (1994). We will
review a dismissal for failure to state a claim, and in
particular the legal interpretation of the federal statutes at
issue, under a plenary standard. Lake v. Arnold, 112 F.3d
682, 684 (3d Cir. 1997).

I. Facts

Because this appeal comes to us from an order granting
defendants' motion to dismiss under Fed. R. Civ. P.
12(b)(6), we take as established the relevant facts alleged in
the appellant's complaint. Appellant is an orthopedic
surgeon who, in 1973, joined the Pottstown Memorial
Medical Center ("PMMC" or "the hospital"), which is a
private, non-profit, community hospital. He alleges that he
holds an appointment to the medical staff at PMMC, which
is defined as "[a]ny duly licensed physician, dentist or
podiatrist who has been appointed to membership by the
Board and is privileged to attend patients or to provide
other diagnostic, therapeutic, teaching or research services
at the Hospital." Medical Staff By-Laws of PMMC, App. at
189.

The complaint further alleges that upon being diagnosed
for attention-deficit disorder in July of 1995, appellant
provided the hospital with a written report from his clinical
psychologist and treating physician stating that the
disorder would not affect his ability to treat patients or
properly interact with the hospital staff. Subsequently, the
hospital accused appellant of various infractions of hospital
policies -- accusations which the appellant considered "a
pattern of harassment and intimidation." Pl.'s Compl. P 26,
App. at 14. On March 18, 1997, the hospital summarily
suspended appellant's medical staff privileges without
notice or a hearing in alleged violation of the hospital's own
by-laws. The Medical Committee of the Board of Directors
later heard testimony from various staff members, not

                               3
including the appellant, and ultimately approved the
decision to suspend staff privileges for a six month period.
The hospital also reported the suspension to the National
Practitioner Data Bank for Adverse Information on
Physicians and Other Health Care Practitioners, which
would result in deleterious consequences to the appellant's
insurance coverage and professional reputation.

As a result of these alleged events, appellant instituted
this action under Title III of the ADA, alleging that PMMC
discriminated against him on the basis of his disability by
denying him the opportunity to participate in the medical
staff privileges offered by the hospital. He also alleged a
violation of the Rehabilitation Act through the hospital's
interference with patient relationships solely by reason of
his disability. The district court, in considering the ADA
claim, relied on the "normal usage" of the phrase "public
accommodation," and the statutory limitation in 42 U.S.C.
S 12182(b)(1)(A)(iv), to conclude that Title III addresses
discrimination only against individuals who patronize
places that accommodate the public -- such as patients,
customers, guests, and so forth. In the context of health
care providers, the district court surmised that Title III
protects only "those persons seeking medical care, and not
the employees and other staff who serve them." Because
the appellant in this case was not a person seeking medical
care, the district court dismissed the ADA claim. With
respect to the section 504 Rehabilitation Act claim, the
district court held that the appellant failed to allege facts
showing that the hospital had suspended staff privileges
"solely by reason of . . . his alleged disability," and
dismissed that claim as well. We turn to these issues
seriatim.1
_________________________________________________________________

1. Appellant, joined by his wife Susan Menkowitz, has also asserted a
number of supplemental state law claims, which the district court
declined to entertain once it dismissed the federal actions. See 28 U.S.C.
S 1367(c) (1994). That determination will be vacated in our mandate. See
Conclusions, infra.

                               4
II. The ADA

A. Plain Language of Title III

The question of whether Title III grants a cause of action
to a doctor with hospital staff privileges is one of statutory
construction and, as such, we begin with the language of
the statute. Title III states as a "general rule":

        No 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. S 12182(a). The statute does not define the term
"individual" for purposes of this subchapter, nor does it
define the phrase "goods, services, facilities, privileges,
advantages, or accommodations." However, a "place of
public accommodation" is defined in 42 U.S.C. S 12181(7)
and specifically includes a hospital, provided it affects
interstate commerce. 42 U.S.C. S 12181(7)(F). No party on
appeal challenges the hospital's status as a place of public
accommodation within the meaning of the ADA. The same
is true of the hospital's effect on interstate commerce.

The term "discrimination" is not directly and uniformly
defined in Title III. Instead, the statute provides several
"general prohibitions" that constitute discrimination for
purposes of the general rule found in 42 U.S.C.S 12182(a).
See 42 U.S.C. SS 12182(b)(1)(A)(i)-(iii). They include, for
example, the "denial of participation" in which it is recited:

        It shall be discriminatory to subject an individual or
       class of individuals on the basis of a disability or
       disabilities of such individual or class, directly, or
       through contractual, licensing, or other arrangements,
       to a denial of the opportunity of the individual or class
       to participate in or benefit from the goods, services,
       facilities, privileges, advantages, or accommodations of
       an entity.

42 U.S.C. S 12182(b)(1)(A)(i). The statute also defines as
discrimination, and hence conduct prohibited under the

                                 5
general rule, the "participation in unequal benefit," 42
U.S.C. S 12182(b)(1)(A)(ii), and "separate benefit," 42 U.S.C.
S 12182(b)(1)(A)(iii). It is noteworthy that these defining
subparagraphs contain a limitation as set forth in 42
U.S.C. S 12182(b)(1)(A)(iv): "For purposes of clauses (i)
through (iii) of this subparagraph, the term `individual or
class of individuals' refers to the clients or customers of the
covered public accommodation that enters into the
contractual, licensing or other arrangement."

In addition to these delineations of discriminatory
practices, Title III sets forth another set of "specific
prohibitions" that define the term discrimination for
purposes of the general rule announced in 42 U.S.C.
S 12182(a). See 42 U.S.C. S 12182(b)(2)(A)(i)-(iv). Among
these is:

       [A] failure to make reasonable modifications in policies,
       practices, or procedures, when such modifications are
       necessary to afford such goods, services, facilities,
       privileges, advantages, or accommodations to
       individuals with disabilities, unless the entity can
       demonstrate that making such modifications would
       fundamentally alter the nature of such goods, services,
       facilities, privileges, advantages, or accommodations.

42 U.S.C. S 12182(b)(2)(A)(ii). Unlike the "general
prohibition" demarcations of discriminatory practice set out
in 42 U.S.C. S 12182(b)(1)(A)(i)-(iii), these definitions of
discrimination contain no language limiting the scope of the
phrase "individual or class of individuals" as is found in 42
U.S.C. S 12182(b)(1)(A)(iv).

B. The Arguments on Appeal

Appellant vigorously attacks the district court's
conclusion that Title III proscribes discrimination only
against members of the hospital's "public," who consist of
persons seeking medical care and not hospital staff
members. Appellant bases his position on two grounds.
First, under a plain meaning approach, appellant contends
that the general rule found in 42 U.S.C. S 12182(a) literally
applies to any "individual" and contains no restriction that
would limit the scope of protected persons only to those

                               6
who patronize places that accommodate the public.
Because a "privilege" offered by a hospital is staff
membership to medical personnel, appellant maintains that
he has a cause of action under Title III to the extent he was
an "individual" who was denied the "full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of" the hospital. Second,
appellant argues that a broad interpretation of those
individuals affording Title III protection is consistent with
the overall statutory scheme of the ADA and its legislative
history.

The hospital disputes the appellant's analysis. It argues
that Title III cannot be read to include any "individual"
denied a privilege offered by a place of public
accommodation. This reading, the hospital posits, would
render Title I of the ADA, 42 U.S.C. SS 12111-12117 ("Title
I"), which relates to employment discrimination, a nullity
and would accordingly violate Congressional intent. Thus,
the hospital concludes that "individuals" for purposes of
Title III are limited only to those persons who are
"customers or clients" that patronize the place of public
accommodation. In the hospital's view, because appellant
had a unique business relationship with the hospital he
cannot sue as the member of the public protected by Title
III.

C. Are Medical Staff Members "individuals" Protected
       by Title III When they Are Denied the "full and
       equal enjoyment of the goods, services, facilities,
       privileges, advantages, or accommodations of any
       place of public accommodation"?

Given the language of the statute and the parties'
arguments, we now turn to the issue directly posed in this
appeal -- may a medical doctor with staff privileges
properly assert a cause of action under Title III? It is not
argued on appeal that the appellant failed to allege that the
hospital's conduct would be discriminatory within the
meaning of the ADA. Appellant has, in addition, alleged
that the discrimination occurred on the basis of a disability
as understood under the Act. Also, the parties do not
dispute on appeal that appellant is "disabled" as that term

                                7
is defined in the ADA.2 Hence, the only remaining issue is
whether the appellant is an "individual" who was denied the
"full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of [the] place of
public accommodation." 42 U.S.C. S 12182(a).

While the ADA does not define the terms "individual" or
"goods, services, facilities, privileges, advantages, or
accommodations," we would ordinarily seek to construe
these words under their ordinary, plain meaning without a
more involved inquiry into legislative history, congressional
intent, or otherwise. See Curtiss-Wright Corp. v.
Schoonejongen, 514 U.S. 73, 81 (1995); Ford v. Schering-
Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998). Reading the
language of the statute, however, immediately raises several
problems in its construction. First, it is not abundantly
clear whether an "individual" protected by the general rule
in Title III refers only to "clients or customers of the covered
public accommodation," as contained in 42 U.S.C.
S 12182(b)(1)(A)(iv). Although the term "clients or
customers" does not directly apply to the general rule itself,
the district court surmised from this phrase that Title III
protects "members of the public -- actual and would be
guests, customers, and clients -- who seek the`full and
equal enjoyment' of the services, facilities, or other
accommodations of places that serve the public."

Perhaps more importantly, the term individual in Title III,
if read broadly, may encroach upon the scope of Title I,
which grants a cause of action not to an "individual" but to
a "qualified individual with a disability." 42 U.S.C.
S 12112(a). Title I explicitly defines the phrase "qualified
_________________________________________________________________

2. The hospital in its brief to this court invites us to affirm the
district
court's dismissal of appellant's Title III claim on the ground that he is
not disabled within the meaning of 42 U.S.C. S 12102(2). Although we
may affirm the district court on any ground raised before it, see Neely v.
Zimmerman, 858 F.2d 144, 149 (3d Cir. 1988), we decline to accept the
hospital's invitation at this stage of the litigation. Appellant in his
complaint states that his disability is "a disorder recognized as a
disability under the" ADA and the Rehabilitation Act. Pl.'s Compl. P 8,
App. at 11. We find this allegation, which we must accept as true,
sufficient to meet the notice pleading requirements of Fed. R. Civ. P. 8
with respect to his disability.

                               8
individual with a disability," see 42 U.S.C. S 12111(8), and
federal courts have long since explored and construed its
meaning. Nevertheless, it is by now well established that
"[h]owever inclusive may be the general language of a
statute, it `will not be held to apply to a matter specifically
dealt with in another part of the same enactment.' " Fourco
Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228
(1957) (citations omitted). This canon of construction
carries particular force where, as here, Congress has
enacted a comprehensive legislative scheme and has
"deliberately targeted specific problems with specific
solutions." Varity Corp. v. Howe, 516 U.S. 489, 519 (1996)
(Thomas, J., dissenting); HCSC-Laundry v. United States,
450 U.S. 1, 6 (1981) (per curiam). Hence, we face a
statutory puzzle; because of the potentially expansive
nature of the term "individual," and ultimately the scope of
Title III protection, we run the risk of rendering
meaningless in many cases the differences between Title I
and Title III. This would include, for example, significant
disparities in coverage, remedies, and construction. As a
result, we are compelled to explore the ADA's legislative
history in order to fully understand the scope and meaning
of Title III as applied to this case.

1. Legislative History and Congressional Intent

Among the broadly stated purposes of the ADA, see 42
U.S.C. S 12101(b), is the intent to "invoke the sweep of
congressional authority . . . in order to address the major
areas of discrimination faced day-to-day by people with
disabilities." Id. S 12101(b)(4). This comes after a specific
finding by Congress that discrimination against individuals
with disabilities persist in many critical areas, including
"health services." 42 U.S.C. S 12101(a)(3). Indeed, there is
little doubt that Congress intended the ADA as a
comprehensive remedial statute with broad ramifications.
See 42 U.S.C. S 12101(b)(1); Penny v. United Parcel Serv.,
128 F.3d 408, 414 (6th Cir. 1997).

Navigating the sea of the ADA's legislative history and
supporting documentation is a considerable task, but
several important beacons emerge as to what Congress
intended to cover under Title III as opposed to Title I of the

                               9
ADA. First, it is evident that Congress sought to regulate
disability discrimination in the area of employment
exclusively through Title I, notwithstanding the broad
language of Title III. As the Senate report makes clear, "Title
III is not intended to govern any terms or conditions of
employment by providers of public accommodations or
potential places of employment; employment practices are
governed by [T]itle I of this legislation." S. Rep. No. 101-
116, at 58 (1989). See also Ford v. Schering-Plough Corp.,
145 F.3d 601, 612 (3d Cir. 1998); Parker v. Metropolitan
Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997) (en banc);
Motzkin v. Trustees of Boston Univ., 938 F. Supp. 983, 996
(D. Mass. 1996). Similarly, the House Report states that
Title I "sets forth prohibitions against discrimination on the
basis of disability by employers, employment agencies,
labor organizations, or joint labor-management committees
. . . with respect to hiring and all terms, conditions, and
privileges of employment." H.R. Rep. No. 101-485, pt. 2, at
54 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 336; see
also id. at 99, reprinted in 1990 U.S.C.C.A.N. 303, 382.
Accordingly, it is apparent that Congress did not intend
Title III -- despite the breadth of its language-- to govern
discrimination within the employment setting and we
cannot construe Title III in a manner that would eviscerate
such a salient legislative mandate.

Our conclusion is reinforced by Congress' 1992
amendment of the Rehabilitation Act, providing that"[t]he
standards used to determine whether [section 504] 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." 29 U.S.C. S 794(d). The Senate Report explains
that this and similar provisions, see 29 U.S.C. S 793(d),
were intended to "ensure uniformity and consistency of
interpretations." S. Rep. No. 102-357, at 71 (1992),
reprinted in 1992 U.S.C.C.A.N. 3712, 3782.

Apart from the potential intersection between Title I and
Title III, the legislative history sheds little light on the
intended meaning of an "individual" who is denied the "full
and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations" of a place of

                               10
public accommodation as those words are used in 42
U.S.C. S 12182(a). What is clear, however, is that the
legislative use of the phrase "customers or clients of the
covered public accommodation that enters into a
contractual arrangement" was not intended to restrict the
general class of persons entitled to sue under Title III,
contrary to the district court's conclusion. The House
Report observes that in restricting the term individuals to
"clients or customers of the covered public
accommodation," the intent was to ensure that"a public
accommodation's obligations are not extended or changed
in any manner by virtue of its lease with another entity."
H.R. Rep. 101-485, pt. 2., at 104 (1990), reprinted in 1990
U.S.C.C.A.N. 303, 384. To illustrate, the report states:

       [A] store located in an inaccessible mall or other
       building, which is operated by another entity, is not
       liable for the failure of that other entity to comply with
       this Act by virtue of having a lease or other contract
       with that entity. This is because, as noted, the store's
       legal obligations extends only to individuals in their
       status as its own clients or customers, not in their
       status as the clients or customers of other public
       accommodations. Likewise, of course, a covered entity
       may not use a contractual provision to reduce any of
       its obligations under this Act.

Id. Thus, Congress intended the phrase "customers or
clients of the covered public accommodation that enters into
a contractual, licensing or other arrangement," 42 U.S.C.
S 12182(b)(1)(A)(iv) (emphasis added), to encompass the
relatively narrower situation where several entities enter
into a contractual or other relationship. See H.R. Rep. 101-
485, pt. 2., at 101 (1990), reprinted in 1990 U.S.C.C.A.N.
303, 384 ("The section has never been intended to
encompass the clients or customers of other entities.")
(emphasis in original). It is therefore not surprising that the
term "clients or customers" does not appear in Title III or
its legislative history other than in reference to contractual
or other arrangements. Indeed, the "clients or customers"
limitation set forth in 42 U.S.C. S 12182(b)(1)(A)(iv) does not
directly apply to the general rule established in section
12182(b) but instead covers the instances of

                               11
"discrimination" described in sections 12182(b)(1)(A)(i)-(iii),
all of which encompass "contractual, licensing, or other
arrangement."

Finally, the legislative history to the ADA demonstrates
that in enacting Title III, Congress intended to extend the
scope of protection afforded to those individuals under the
Rehabilitation Act. The House Report, for example, states
that "Section 504 of the Rehabilitation Act of 1973 prohibits
Federal agencies and recipients of Federal financial
assistance from discriminating against persons with
disabilities. The purpose of [T]itle III . . . is to extend these
general prohibitions against discrimination to privately
operated public accommodations and to bring individuals
with disabilities into the economic and social mainstream of
American life." H.R. Rep. No. 101-485, pt. 2, at 99 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 381-82. Much of the
remaining legislative history echoes this intention. See
generally 1 Henry H. Perritt, Americans with Disabilities Act
Handbook S 1.2, at 4 (1997) (collecting examples). The ADA
itself states that "[N]othing in this chapter shall be
construed to apply a lesser standard than the standards
applied under title V of the Rehabilitation Act of 1973." 42
U.S.C. S 12201(a). Courts, including our own, have
accordingly examined Rehabilitation Act precedent in
examining the scope of coverage under the ADA. See
Yeskey v. Commonwealth of Pennsylvania Dep't of
Corrections, 118 F.3d 168, 170 (3d Cir. 1997), aff'd, 118
S. Ct. 1952 (1998); 1 Perritt, supra, S 1.2, at 4.

2. Case Law

With these principles in mind, we turn to the question of
whether the appellant is an "individual" who is denied the
"full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations" of a place of
public accommodation as those terms are used in Title III.
We do not write on a blank slate and it is appropriate at
this juncture to examine precedent interpreting this phrase
within the framework of Title III's language.

In Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir.
1998), this court considered whether a disparity between

                               12
disability benefits for mental and physical disabilities
violated Title III of the ADA. Id. at 612-14. The plaintiff in
that case argued that insurance benefits offered by her
employer, and indirectly its insurance carrier, contained
unequal disability benefits and therefore denied her the
equal enjoyment of a "service" or "privilege" offered by a
place of public accommodation. Our analysis of that
contention led us to reach two important conclusions
relevant to this appeal. First, relying on the ADA's
legislative history, we dismissed the plaintiff 's claim under
Title III against her employer because Title I, and not Title
III, governed the "terms and conditions of employment by
providers of public accommodations." Id. at 612 (quoting S.
Rep. No. 101-116, at 58 (1989)). Before even reaching the
interpretation of the words "service" or "privilege" under
Title III, we noted that insurance benefits were offered in
the context of her employment and therefore the terms of
Title I exclusively governed her action against her employer.

With respect to the plaintiff's claim in Ford against her
insurance carrier, this court concluded that while
insurance benefits may be ordinarily considered a type of
"service," "privilege," or "advantage," they are not services of
the place of public accommodation. Id. We reasoned that
under the plain meaning of Title III, a public
accommodation is a physical place and therefore the phrase
"goods, services, facilities, privileges, advantages, or
accommodations" refer to "what these places of public
accommodation provide." Id. at 613. In aligning ourselves
with the Court of Appeals for the Sixth Circuit, see Parker
v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir. 1998)
(en banc), we required at the very least some "nexus"
between the physical place of public accommodation and
the services denied in a discriminatory manner. Ford, 145
F.3d at 613; see also Parker, 121 F.3d at 1011 (looking to
a "nexus between the disparity in benefits and the services
which [the defendant] offers to the public from its
insurance office"); but see Carparts Distribution Ctr., Inc. v.
Automotive Wholesaler's Ass'n of New England, Inc., 37
F.3d 12, 19-20 (1st Cir. 1994) (holding that Title III is not
limited to physical structures). Because the disparate
insurance benefits offered by an insurance office do not
relate to the insurance office itself -- that is, the physical

                               13
place of public accommodation -- the plaintiff in Ford could
not state a cause of action under Title III of the ADA.

3. Analysis

Under the language of Title III, its legislative history, and
the principles announced in Ford, we must conclude that
the appellant has properly stated a cause of action as an
"individual" discriminated against in the "full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation." At the outset, we cannot accept the
district court's blanket interpretation that Congress
intended Title III to apply only to members of the "public,"
which the district court defined as those guests, clients, or
customers who seek the services, facilities, or privileges
offered by a place of public accommodation. The operative
rule announced in Title III speaks not in terms of "guests,"
"patrons," "clients," "customers," or "members of the
public," but instead broadly uses the word "individuals."
Looking to the term "public accommodation," a term of art
defined in 42 U.S.C. S 12181(7), does not aid the inquiry
either because that phrase does not define the rights
protected under the ADA and there can be no question that
an operator of a hospital falls under the prohibitions
associated with Title III. Similarly, the district court's
reliance on the term "clients or customers" is equally
misplaced. As both the language of Title III and its
legislative history clearly demonstrate, the phrase "clients
or customers," which only appears in 42 U.S.C.
S 12182(b)(1)(A)(iv), is not a general circumscription of Title
III and cannot serve to limit the broad rule announced in
42 U.S.C. S 12182(a).

Equally unavailing is the hospital's argument that
illustrations cited by the ADA's legislative history all
describe instances of members of the public as clients or
customers. That a statute can be "applied in situations not
expressly anticipated by Congress does not demonstrate
ambiguity. It demonstrates breadth." Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 499 (1985) (citation omitted); see
also Pennsylvania Dep't of Corrections v. Yeskey, 118 S. Ct.
1952, 1955 (1998). Nor can we agree with the hospital's

                               14
argument that Title III offers no protection against disability
discrimination by virtue of the appellant's "unique business
relationship" with the hospital. This contention runs
contrary to the plain language and legislative history of
Title III which in no way mentions any sort of "business
relationship" that would preclude an "individual" from
asserting a cause of action if denied the "full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation."

Similarly unpersuasive is the hospital's attempt to read
significance into the absence of the phrase "qualified
individual" from Title III, which appears in Title I, Title II,
and the Rehabilitation Act. While the hospital argues that
the absence of such a phrase indicates that Title III was
never meant to apply in the "workplace," wefind no support
for such a contention in the broadly drafted language of
Title III itself, which prohibits "operators of a public
accommodation" from discriminating against "individuals."
Moreover, as stated by the United States Court of Appeals
for the First Circuit, the absence of the "qualified
individual" language from Title III would make little
difference in a case, such as this, where the plaintiff seeks
reasonable accommodation:

       We find little difference in this distinction, because
       many of the issues that arise in the "qualified"
       analysis, also arise in the context of the "reasonable
       modifications" or "undue burden" analysis. That is, if
       more than reasonable modifications are required of an
       institution in order to accommodate an individual, then
       that individual is not qualified for the program.

Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 154 (1st Cir.
1998). Thus, because the appellant in this case alleges that
the hospital failed to "accommodate" his disability, see Pl.'s
Compl. P 46(a), App. at 18, the hospital is free to show that
the relief requested would "fundamentally alter the nature
of such goods, services, facilities, privileges, advantages, or
accommodations." See 42 U.S.C. S 12182(b)(2)(A)(ii).
Similarly, in no way would a hospital be forced to
accommodate an unqualified physician if he "poses a direct

                               15
threat to the health and safety of others." 42 U.S.C.
S 12182(b)(3).

We do agree with the hospital, however, that Title III was
not intended to govern disability discrimination in the
context of employment. See Ford, 145 F.3d at 612; S. Rep.
No. 101-116, at 58 (1990). But the appellant in this case
never alleged that he is an employee of the hospital or that
he was denied the benefits associated with employment.
The appellant's complaint instead alleges that he was
"appointed to the Medical Staff of PMMC," App. at 8, and
both parties maintain that his relationship with the
hospital is not strictly one of employment but more in the
nature of an independent contractor. See Pl.'s Br. at 23;
Mem. in Support of Def.'s Motion to Dismiss Compl. at 9 n.
4. Federal courts, including our own, have commented on
the indicia of employment for purposes of the disability
discrimination laws, see, e.g., EEOC v. Zippo Mfg. Co., 713
F.2d 32, 36-38 (3d Cir. 1983) (considering the Age
Discrimination in Employment Act); Birchem v. Knights of
Columbus, 116 F.3d 310, 312 (8th Cir. 1997) (considering
Title I of the ADA); Cilecek v. Inova Health System Services,
115 F.3d 256, 260-61 (4th Cir. 1997) (considering Title VII
of the Civil Rights Act); Alexander v. Rush North Shore
Medical Center, 101 F.3d 487, 492 (7th Cir. 1996) (same),
and the analysis typically focuses in a myriad of fact-
intensive considerations. The By-Laws of the hospital
governing staff membership speak of staff "privileges" and
"prerogatives," and do not themselves characterize the
relationship between a medical staff member and the
hospital as one of employment. The definition set forth in
the By-Laws of a member of the medical staff is "[a]ny duly
licensed physician, dentist or podiatrist who has been
appointed to membership by the Board and is privileged to
attend patients or to provide other diagnostic, therapeutic,
teaching or research services at the Hospital." App. at 189.
However, we cannot say more at this stage of the litigation
because we must accept as true the facts as alleged in the
appellant's complaint and any reasonable reading of the
pleadings. See Holder v. City of Allentown, 987 F.2d 188,
193 (3d Cir. 1993). It is quite clear in this case, as both the
hospital and the district court have stated, that the
appellant proceeded on the basis that he was not an

                               16
employee of the hospital and therefore not within the
province of Title I.

Assuming that the appellant is not an employee of the
hospital as that term is understood under Title I, the only
remaining question is whether he was denied the "full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation." We look for, as we did in Ford, some
nexus between the services or privileges denied and the
physical place of the hospital as a public accommodation.
Ford, 145 F.3d at 613. There can be little doubt that the
appellant fulfills such a requirement in this case. Because
of the appellant's suspension from the active medical staff,
he can no longer enjoy the hospital's physical facilities in
providing the necessary medical and consulting services to
his patients. See By-Laws P 8.3(b)(i), App. at 135. Hence,
the hospital denied the appellant the requisite physical
access that we found lacking in Ford. This case is quite
unlike a disparity in insurance benefits which had nothing
to do with the facilities of an insurance office, or the "place"
of public accommodation. Here, we cannot imagine a
greater nexus between the privileges, advantages, or
services denied and physical access to hospital facilities
simply because of the nature of medical staff privileges --
privileges that lie at the very core of a hospital's facilities.

We therefore hold that a medical doctor with staff
privileges -- one who is not an employee for purposes of
Title I -- may assert a cause of action under Title III of the
ADA as an "individual" who is denied the "full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation." Our conclusion is reinforced by several
observations. First, we may effectively find no recourse
under the ADA for the appellant if we were to hold that the
he has no cause of action under Title III. That is, the
appellant may not be a "qualified individual" under Title I
because there was no employment relationship with a
covered entity, and the appellant would not be protected
under Title III because he is not an "individual" who is
denied the "full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any

                               17
place of public accommodation." We cannot see how
Congress intended such a result given the ADA's
remarkable breadth of language and purpose -- especially
when Congress expressly states that it seeks to
comprehensively regulate "discrimination against
individuals with disabilities in such critical areas as . . .
health services." 42 U.S.C. S 12101(a)(3). Second, nothing
in the Rehabilitation Act would prevent a physician with
staff privileges from asserting a cause of action based on
disability discrimination. See Landefeld v. Marion General
Hospital, 994 F.2d 1178 (6th Cir. 1993). Notfinding a
similar cause of action under the ADA would lead to the
perverse result that the ADA affords less protection than
the Rehabilitation Act to a discrete class of disabled
individuals. This squarely contradicts the language and
intent of the ADA. See 42 U.S.C. S 12201(a). Finally, the
administrative guidance issued by the Justice Department
interprets Title III to allow a cause of action for physicians
with staff privileges. See U.S. Dep't of Justice, Civil Rights
Division, The Americans with Disabilities Act: Title III
Technical Assistance Manual P 4.1100, illus. 4 (Nov. 1993).
As the agency charged by Congress to issue implementing
regulations, the Department's views are entitled to
deference. Bragdon v. Abbott, 118 S. Ct. 2196, 2199 (1998).

Accordingly, we will reverse the district court's order
dismissing appellant's disability discrimination claim
brought under Title III of the ADA.

III. The Rehabilitation Act

In addition to appellant's ADA claim, the complaint sets
forth a cause of action under section 504 of the
Rehabilitation Act, 29 U.S.C. S 794, which the district court
dismissed because, in its view, appellant failed to allege
that the hospital suspended staff privileges solely because
of his disability. Appellant argues that the complaint
sufficiently alleges facts that would permit the fact-finder to
infer discrimination solely on the basis of his disability. We
now turn to the sufficiency of the complaint.

                               18
A. Elements of a Section 504 Rehabilitation
Action Claim

Section 504 of the Rehabilitation Act states, 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.

29 U.S.C. S 794(a). We have held that in order to establish
a violation under this section, the plaintiff must prove:

       (1) that he is a "handicapped individual" under the Act,
       (2) that he is "otherwise qualified" for the position
       sought, (3) that he was excluded from the position
       sought "solely by reason of his handicap," and (4) that
       the program or activity in question receives federal
       financial assistance.

Strathie v. Department of Transp., 716 F.2d 227, 230 (3d
Cir. 1983); see also Wagner v. Fair Acres Geriatric Ctr., 49
F.3d 1002, 1009 (3d Cir. 1995). As the Supreme Court has
previously stated, the Rehabilitation Act does not impose an
affirmative action obligation on recipients of federal
assistance. See Southeastern Community College v. Davis,
442 U.S. 397, 410-14 (1979). Instead, the Act is cast in
negative terms and prohibits discriminatory action when an
otherwise qualified individual is excluded from a position
sought solely by reason of his handicap. See Jeremy H. v.
Mount Lebanon Sch. Dist., 95 F.3d 272, 278 (3d Cir. 1996).
The parties do not dispute at this stage of the litigation that
appellant has sufficiently alleged he is a "handicapped
individual," he is "otherwise qualified," and the hospital
receives federal financial assistance.3 The only remaining
_________________________________________________________________

3. The hospital once again asks this court to affirm the dismissal of
appellant's Rehabilitation Act claim on the ground that he is not a
"handicapped individual." For reasons stated above, see supra note 2, we
decline this alternative ground for affirmance.

                               19
issue, therefore, is whether appellant has properly alleged
he was excluded from the position sought "solely by reason
of . . . his disability." 29 U.S.C. S 794(a).

Many courts, including our own, have opined as to the
meaning of the causation requirement embodied in the
phrase "solely by reason of " an individual's disability. The
Second Circuit Court of Appeals, for example, held that the
"solely by reason of " language was "designed to weed out
section 504 claims where an employer can point to conduct
or circumstances that are causally unrelated to the
plaintiff 's handicap." Teahan v. Metro-North Commuter R.R.,
951 F.2d 511, 515 (2d Cir. 1991). We have previously
stated that a plaintiff stating a claim under section 504
need not allege an intent to discriminate on the part of the
employer. See W.B. v. Matula, 67 F.3d 484, 492 (3d Cir.
1995). Where the complaint alleges intentional
discriminatory conduct, a plaintiff may make a prima facie
case of causation if he was denied a benefit for which he
was qualified "and was rejected under circumstances
indicating discrimination on the basis of an impermissible
factor." Smith v. Barton, 914 F.2d 1330, 1340 (9th Cir.
1990) (quoting Doe v. New York Univ., 666 F.2d 761, 766
(2d Cir. 1981); see also Prewitt v. United States Postal Serv.,
662 F.2d 292, 305 (5th Cir. 1981).

B. The Appellant's Complaint

As the hospital correctly points out, the appellant did not
explicitly allege in his complaint that the suspension of
staff privileges occurred "solely by reason of " his disability.
However, certain factual allegations contained in the
complaint would no doubt permit an inference of
discrimination solely on the basis of appellant's known
disability because of the timing and circumstances of his
suspension. For example, appellant alleges in his complaint
that after he informed the hospital of his disability,
"defendant PMMC . . . engaged in a pattern of harassment
and intimidation of plaintiff, unfairly and disparately
accusing him of minor infractions of hospital policies." Pl.'s
Compl. PP 26, 46(b), App. at 17, 18. The complaint further
alleges that less than a year later, the hospital suspended
appellant's medical staff privileges without a hearing and

                               20
with full knowledge of his disability. Id. PP 27-28, App. at
15. On the other hand, the complaint, at times, would allow
a contrary inference that the hospital suspended
appellant's staff privileges because of various whistle
blowing activities. Id. P 21, App. at 13-14 ("[B]ased on
dissatisfaction with plaintiff 's repeated articulated concerns
regarding omissions in medical care at PMMC, defendant[ ]
PMMC . . . accused plaintiff of allegedly inappropriate
behavior unrelated to the quality of patient care rendered
by plaintiff."). Yet, that inference is undermined by the fact
that Menkowitz had criticized hospital practices for over
twenty years without suffering adverse consequences. Id.
P 20, App. at 13.

Based on this recitation of the facts, which we must
accept as true at this stage of the litigation, it is evident
that appellant has sufficiently alleged causation as required
under section 504 of the Rehabilitation Act. It is, of course,
firmly established that in reviewing a Fed. R. Civ. P. 12(b)(6)
motion, we must draw all reasonable inferences in the
plaintiff 's favor. See Schrob v. Catterson, 948 F.2d 1402,
1405 (3d Cir. 1991). Just as a pleading must "be construed
as to do substantial justice," Fed. R. Civ. P. 8(f), see also
Conley v. Gibson, 355 U.S. 41, 47-48 (1957), a plaintiff
generally need not explicitly allege the existence of every
element in a cause of action if fair notice of the transaction
is given and the complaint sets forth the material points
necessary to sustain recovery. See 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure S 1216, at
154-162 (2d ed. 1990). This is especially so if the material
deficiencies in the complaint stem from nothing more than
inartful pleading -- the precise sort of pleading as a highly
developed form of art that the federal rules sought to
abandon. See Conley, 355 U.S. at 48. Simply put, the
complaint will withstand a Fed. R. Civ. P. 12(b)(6) attack if
the material facts as alleged, in addition to inferences
drawn from those allegations, provide a basis for recovery.

In this case, the appellant has set forth sufficient factual
circumstances to permit an inference to be drawn that the
hospital suspended medical staff privileges solely by reason
of his handicap as prohibited under section 504 of the
Rehabilitation Act. The hospital was fully aware of the

                               21
appellant's disability and, nearly a year later, suspended
staff privileges without notice or explanation. In the interim,
the hospital is alleged to have engaged in a "pattern of
harassment and intimidation, unfairly and disparately
accusing" appellant of hospital policy infractions. These
facts give us pause and would no doubt create, at the very
least, an inference which must be drawn in the appellant's
favor -- specifically, that the hospital suspended staff
privileges solely based on the appellant's known disability.
Although it is true, as the hospital points out, certain
inferences may be drawn against the appellant -- for
example, that it was the appellant's raising "concerns
regarding quality of care assurance issues" which provided
the basis for suspension -- contrary inferences alone will
not justify a dismissal under Fed. R. Civ. P. 12(b)(6). See
Fuentes v. South Hills Cardiology, 946 F.2d 196, 202 (3d
Cir. 1991). We have instead inquired whether the plaintiff
will be able to prove any set of facts consistent with those
allegations in the complaint that would sustain recovery.
See Trump Hotel & Casino Resorts, Inc. v. Mirage Resorts,
Inc., 140 F.3d 478, 483 (3d Cir. 1998). That the hospital
suspended appellant's staff privileges solely on the basis of
his disability is such a fact that may be proved and
therefore the district court erred in dismissing the
Rehabilitation Act claim on this ground.

Accordingly, we will reverse the district court's order
dismissing appellant's claim set forth under section 504 of
the Rehabilitation Act.

IV. Conclusions

For the foregoing reasons, we will reverse the order of the
district court dismissing appellant's federal claims and
remand for further appropriate proceedings. We will also
vacate the order of the district court declining to exercise
supplemental jurisdiction over appellant's state law claims,
in light of our determination with respect to appellant's
federal claims.

                               22
SCIRICA, Circuit Judge, dissenting in part and concurring
in part.

Although the majority reaches a beneficial result, I am
constrained to dissent because I find no support in either
the statute or legislative history that Title III of the
Americans with Disabilities Act, 42 U.S.C.A. SS 12101-
12213 (West 1994 & Supp. 1998) (ADA), provides plaintiff
a cause of action. Dr. Menkowitz, a physician with hospital
staff privileges, did not bring suit under Title I of the ADA,
which generally governs discrimination in the employment
relationship.

I agree with much of the majority's review of the relevant
statutes. By its express terms, Title I of the ADA addresses
the terms and conditions of employment and protects
individuals from workplace discrimination.1 The definition
of "qualified individual with a disability" demonstrates the
exclusivity of Title I's role in prohibiting employment
discrimination: "[it] means an individual with a disability
who, with or without reasonable accommodation, can
perform the essential functions of the employment position
that such individual holds or desires . . . . " 42 U.S.C.A.
S 12111(8). In Ford v. Schering-Plough Corp., ___ F.3d ___,
No. 96-5674, 1998 WL 258386, at *12 (3d Cir. May 22,
1998) (citations omitted), we stated explicitly: "[t]erms and
conditions of employment are covered under Title I, not
Title III. `Title III is not intended to govern any terms or
conditions of employment by providers of public
accommodations or potential places of employment;
_________________________________________________________________

1. Title I provides, in part:

       (a) General Rule

        No covered entity shall discriminate against a qualified
individual
       with a disability because of the disability of such individual 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.

42 U.S.C.A. S 12112(a) (West 1995).

                                23
employment practices are governed by [T]itle I of this
legislation.' "2

I do not believe Title III of the ADA is available to Dr.
Menkowitz. Title III "specifically addresses discrimination by
owners, lessors, and operators of public accommodations,"
Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010
(6th Cir. 1997),3 and protects members of the public. See
_________________________________________________________________

2. See also Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1014 (6th
Cir. 1997) ("the statutory framework of the ADA expressly limits
discrimination in employment practices of Title I of the ADA"); Leonard
F v. Israel Discount Bank of New York, 967 F. Supp. 802, 804 (S.D.N.Y.
1997) ("Title III is not intended to govern any terms and conditions of
employment by providers of public accommodations. Employment
practices are governed by Title I") (citation omitted); Motzkin v.
Trustees
of Boston Univ., 938 F. Supp. 983, 995-96 (D. Mass. 1996) ("Title I . . .
is entitled `Employment,' and, by its terms, it clearly applies to
virtually
all aspects of the employment relationship").

3. Title III provides, in part:

       (a) General Rule

        No 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.A. S 12182(a) (West 1995). The discrimination generally
prohibited is found in 42 U.S.C.A. S 12182(b):

       (b) Construction

        (1) General Prohibition

        (A) Activities

        (i) Denial of participation

        It shall be discriminatory to subject an individual or class of
       individuals on the basis of a disability or disabilities of such
       individual or class, directly, or through contractual, licensing,
or
       other arrangements, to a denial of the opportunity of the
individual
       or class to participate in or benefit from the goods, services,
        facilities, privileges, advantages, or accommodations of an entity.

* * *

                                24
42 U.S.C.A. S 12182(b)(1)(A)(iv) ("For purposes of clauses (i)
through (iii) of this subparagraph, the term `individual or
class of individuals' refers to the clients or customers of
the covered public accommodation that enters into the
contractual, licensing, or other arrangement") (emphasis
supplied).

Protecting recipients rather than providers, Title III
ensures customers and clients access to the full enjoyment
of goods and services free from disability based
discrimination. The goods and services offered by the
Pottstown Memorial Medical Center are health care and
medical services. The "public" for purposes of Title III refers
to those persons desiring medical care, not those seeking
staff privileges. "Staff privileges" do not appear to constitute
"privileges" as that term is articulated in Title III. The
apparent privilege is access to medical care and health care
facilities irrespective of disability, not the privilege of
serving on the staff of the health care provider. See Motzkin,
938 F. Supp. at 995-96 ("While it could be argued that the
terms `privileges' and `advantages' [in Title III] in the
abstract, are general enough to encompass employment
opportunities, one does not ordinarily think of jobs as being
among the `privileges' and `advantages' offered to members
of the public by places of public accommodation").
_________________________________________________________________

        (2) Specific prohibitions

        (A) Discrimination

        For purposes of subsection (a) of this section, discrimination
       includes (i) the imposition of application or eligibility criteria
that
       screen out or tend to screen out an individual with a disability or
a
       class of individuals with disabilities from fully and equally
enjoying
       and 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.A. SS 12182(b)(1)(A)(i), (b)(2)(A)(i). See e.g., Parker, 121 F.3d
at
1010 ("Title III specifically prohibits, inter alia, the provision of
unequal
or separate benefits by a place of public accommodation") (citing 42
U.S.C.A. SS 12182(b)(1)(A)(i)-(iii)).

                               25
Moreover, the list of "public accommodations" in 42
U.S.C.A. S 12818(7) suggests Title III covers only
discrimination against guests, customers, and clients of
places held open for service to the general public.4 See
_________________________________________________________________

4. 42 U.S.C.A. S 12181(7) includes, inter alia,

         (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 public display or
         collection;

         (I) a park, zoo, amusement park, or other place of recreation;

         (J) a nursery, elementary, secondary, undergraduate, or post
         graduate 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
See Sharrow v. Bailey, 910 F. Supp. 187, 192 (M.D. Pa. 1995) ("The
professional offices of health care providers are places of public
accommodation for ADA purposes") (citations omitted).

Recent jurisprudence reveals "public accommodation" is defined with
some specificity. See Ford, 1998 WL 258386, at *12-13 (noting it is "all
of the services which the public accommodation offers, not all services
which the lessor of the public accommodations offers, which fall within

                               26
Ford, 1998 WL 258386 at *12 ("the `goods, services,
facilities, privileges, advantages, or accommodations'
concerning which a disabled person cannot suffer
discrimination are not free standing concepts but rather all
refer to the statutory term `public accommodation' and thus
to what these places of public accommodation provides").
As noted, the "services" and "privileges" provided by
Pottstown Memorial Medical Center are medical services,
not staff privileges, and thus Title III, on its face, would not
apply to Dr. Menkowitz.

When compared to other provisions of the ADA and the
Rehabilitation Act prohibiting discrimination, the
proscription imposed by Title III appears more narrowly
drawn. Title II, addressing discrimination by public entities,
broadly provides:

        Subject to the provisions of this subchapter, no
       qualified individual with a disability shall, by reason of
       such disability, be excluded from participation in or be
       denied the benefits of the services, programs, or
       activities of a public entity, or be subjected to
       discrimination by any such entity.

42 U.S.C.A. S 12132 (West 1995). Similarly, the prohibition
against discrimination mandated by the Rehabilitation Act
broadly states, in part:

       (a) Promulgation of rules and Regulations

        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.
_________________________________________________________________

the scope of Title III . . . . Restricting `public accommodations' to
places
is in keeping with the jurisprudence concerning Title II of the Civil
Rights
Act of 1964"); Parker, 121 F.3d at 1014 (finding "[t]he clear connotation
of the words in S 12181(7) is that a public accommodation is a physical
place" and concluding "the provision of a long-term disability plan by an
employer and administered by an insurance company does not fall
within the purview of Title III").

                               27
29 U.S.C.A. S 794(a) (West Supp. 1998).

Dr. Menkowitz contends he is not an employee, but
rather a physician with staff privileges. Yet, Dr. Menkowitz'
allegations of discrimination center around the terms and
conditions of his employment as a staff physician at
Pottstown Memorial Medical Center, which fall generally
within the ambit of Title I. Title I defines "discriminate" to
include, inter alia, "participating in a contractual or other
relationship that has the effect of subjecting a covered
entity's qualified applicant or employee with a disability to
the discrimination prohibited by this subchapter . .. . " 42
U.S.C.A. S 12112(b)(2). Title I also prohibits discrimination
in the dispensation of "privileges."

But as the majority notes, the parties have characterized
Dr. Menkowitz' relationship with the Pottstown Memorial
Medical Center as "more in the nature of an independent
contractor," raising the question whether he can state a
claim under Title I. In Equal Employment Opportunity
Comm'n v. Zippo Mfg. Co., 713 F.2d 32 (3d Cir. 1983), we
articulated the appropriate standard to determine whether
an individual constitutes an "employee" for purposes of the
Age Discrimination in Employment Act, 29 U.S.C.A.SS 621-
34 (West 1985 & Supp. 1998) (ADEA). After noting
independent contractors are not employees within the
meaning of the ADEA, we concluded "the hybrid standard
that combines the common law `right to control' with the
`economic realities' as applied in Title VII cases is the
correct standard for determining employee status under
ADEA." Id. at 38.5 By analogy, a staff physician like Dr.
_________________________________________________________________

5. In reaching this conclusion, we compared the ADEA to Title VII of the
Civil Rights Act of 1964, 42 U.S.C.A. S 2000e-2000e-17 (West 1994 &
Supp. 1998). The methods and manner of proof under the ADA mirror
those applicable to Title VII and the ADEA. See Dykes v. DePuy, Inc., 140
F.3d 31, 39 (1st Cir. 1998) ("Since, as a matter of law Dykes was an
independent contractor, the district court properly granted summary
judgment on Dykes's ERISA, ADA, and state antidiscrimination claims");
Birchem v. Knights of Columbus, 116 F.3d 310, 312 (8th Cir. 1997) ("Like
Title VII, the ADA protects `employees' but not independent contractors")
(citation omitted); Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487,
492-93 (7th Cir. 1996) (noting "independent contractors are not

                               28
Menkowitz, whose duties may make him an independent
contractor, may not qualify as an employee under the ADA.
Irrespective, Title I more suitably addresses the context in
which the complained conduct occurred.

I concur with the majority's analysis with respect to Dr.
Menkowitz' claim under the Rehabilitation Act.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

_________________________________________________________________

protected by Title VII" and finding physician cannot bring a Title VII
alleging the hospital's revocation of his staff privileges constituted
unlawful discrimination absent proof of an employment relationship,
which did not exist because physician was independent contractor);
Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 157
(3d Cir. 1995) ("In the context of employment discrimination, the ADA,
ADEA and Title VII all serve the same purpose - to prohibit
discrimination in employment against members of certain classes.
Therefore, it follows that the methods and manner of proof under one
statute should inform the standards under the others as well"); Spirides
v. Reinhardt, 613 F.2d 826, 829 (D.C. Cir. 1979) (stating Title VII does
not protect independent contractors).

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