                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-2952
                                  ___________

Paul A. Wojewski, M.D.,                *
                                       *
             Plaintiff,                *
                                       *
Sara Wojewski,                         *
                                       *
             Appellant,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
Rapid City Regional Hospital, Inc.;    *
Charles Hart, M.D.; Robert Glenn       *
Allen, Jr., M.D.,                      *
                                       *
             Defendants - Appellees.   *
                                  ___________

                            Submitted: February 17, 2006
                               Filed: June 9, 2006
                                ___________

Before LOKEN, Chief Judge, LAY and SMITH, Circuit Judges.
                              ___________

SMITH, Circuit Judge.

     Dr. Paul A. Wojewski sued Rapid City Regional Hospital and two of its
administrators, claiming violations of the Americans with Disabilities Act ("ADA")
and the Rehabilitation Act, as well as various state law claims. The district court1
granted the defendants' motion for summary judgment on the claims under the ADA
and the Rehabilitation Act. Dr. Wojewski appealed. With respect to the ADA Title III
claim, we vacate the district court's order and remand with instructions to dismiss the
claim as moot. We otherwise affirm.

                                     I. Background
       In early 1988, Dr. Wojewski, a cardiothoracic surgeon, became a member of the
medical staff at Rapid City Regional Hospital ("RCRH"). Dr. Wojewski's staff status
entitled him to admit patients, use the hospital's facilities, and perform surgery at
RCRH. Dr. Wojewski could also use RCRH employees, such as nurses, to assist him
in surgery. Dr. Wojewski performed all of his operations at RCRH, as it is the only
suitable facility in the region for cardiothoracic surgeries. However, Dr. Wojewski
leased separate office space and maintained his own staff (including office staff,
nurses and a physician's assistant) whom he hired and paid.

       Medical staff membership required Dr. Wojewski to provide appropriate patient
care, abide by medical staff bylaws, prepare required medical records, abide by ethical
principles, attend an orientation program, participate in continuing medical education,
and schedule operating room time. Dr. Wojewski also agreed to take calls from the
RCRH emergency room for heart-related emergencies.

       Dr. Wojewski billed his patients directly, and the patients remitted payments
directly to Dr. Wojewski. In other words, RCRH did not bill patients for Dr.
Wojewski's services and did not pay Dr. Wojewski for his services. The hospital did
not issue a form W-2 or 1099 to Dr. Wojewski and did not pay his social security
taxes or provide benefits, such as health and malpractice insurance.


      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.

                                         -2-
       In 1996, Dr. Wojewski was diagnosed with bipolar disorder and took a leave
of absence for treatment. Later that year, RCRH conditionally reinstated Dr.
Wojewski's staff privileges on a limited basis as outlined in a Letter of Agreement. In
August of 2003, RCRH reinstated Dr. Wojewski to the active medical staff subject to
certain conditions that were outlined in a Letter of Agreement. This 2003 Letter of
Agreement required that Dr. Wojewski "meet periodically with a monitoring
physician; meet with [certain medical officers] upon demand." In addition, the
agreement required that Dr. Wojewski "take mandatory vacations"; limit the time he
was on call; participate in therapy; take prescribed medications and refrain from
taking unprescribed medications; "consume no more than three glasses of wine per
week"; submit to "random biological fluid collection"; "submit to . . . mental, physical
or medical competency examinations" demanded of him; limit traveling; release all
medical or other personal information relevant to his impairment; "submit to review
of 100% of his surgical cases for a period of six months from the date of
reinstatement"; and "submit a formal proctorship of his clinic and hospital practice."

       After being reinstated, Dr. Wojewski entered a manic phase of his disorder.
Specifically, Dr. Wojewski experienced an acute episode while performing open-heart
surgery. Following a hearing, RCRH terminated Dr. Wojewski's medical staff
privileges based upon concerns for patient safety.

      Dr. Wojewski filed a discrimination claim with the South Dakota Department
of Labor, Division of Human Rights ("DHR") and the Equal Employment Opportunity
Commission ("EEOC"). The DHR issued a "no probable cause" determination, finding
that Dr. Wojewski was not a covered employee under South Dakota law. Dr.
Wojewski did not appeal that decision. The EEOC issued a Notice of Right to Sue,
and Dr. Wojewski filed a complaint in federal district court. In his complaint, Dr.
Wojewski sought relief under Title I of the ADA, Title III of the ADA, and the
Rehabilitation Act. The complaint also alleged various state law claims that are not
relevant to this appeal.

                                          -3-
      The defendants moved for summary judgment on the ADA and Rehabilitation
Act claims, and the district court granted the motion. The court held that Dr.
Wojewski's claims under Title I of the ADA and under the Rehabilitation Act failed
because he was not an employee of RCRH but was an independent contractor. With
respect to the claim under Title III of the ADA, the court held that Dr. Wojewski did
not qualify for relief because he was not a client or customer of RCRH.

        Dr. Wojewski appealed the district court's decision. During the pendency of this
appeal, Dr. Wojewski died. His widow, Sara Wojewski, has been substituted as
appellant. Both parties moved to dismiss as moot the portion of the appeal pertaining
to the claim under Title III of the ADA because Title III only provides injunctive
relief, which Dr. Wojewski's death renders impossible. Because the Title III claim has
become moot, we vacate the district court's order and remand with instructions to
dismiss the claim as moot. Epp v. Kerrey, 964 F.2d 754, 756 (8th Cir. 1992) (citing
United States v. Munsingwear, 340 U.S. 36, 39 (1950)). We address the remaining
claims on the merits.

                                     II. Discussion
        On appeal, appellant contends that the district court erred in granting summary
judgment as to the ADA Title I claim and the Rehabilitation Act claim. "We review
grants of summary judgment de novo." Lerohl v. Friends of Minn. Sinfonia, 322 F.3d
486, 488 (8th Cir. 2003). "Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law."
Id. (citing Fed. R. Civ. P. 56(c)). We hold that summary judgment was proper.

                                 A. Title I Claim
      Dr. Wojewski's Title I claim turns on whether he was an "employee" of the
hospital. Appellant contends that Dr. Wojewski was an employee due to (1) the
economic reality of his circumstances (i.e., that he was completely dependant upon



                                          -4-
RCRH for his livelihood); and (2) the heightened level of control and authority that
RCRH exercised over him.

       The ADA broadly protects the employment rights of the disabled. "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. § 12112 (a). While
the ADA protects "employees," the Act does not protect independent contractors.
Lerohl, 322 F.3d at 489. We have said "Congress adopted a circular definition of
'employee'—an employee is an 'individual employed by an employer.'" Id. (citing 42
U.S.C. §§ 2000e(f), 12112(4)). In determining whether a person is an employee or an
independent contractor, the Supreme Court instructs us to consider the following
nonexhaustive list of factors from the Restatement (Second) of Agency § 220(2)
(1958):

      In determining whether a hired party is an employee under the general
      common law of agency, we consider the hiring party's right to control the
      manner and means by which the product is accomplished. Among the
      other factors relevant to this inquiry are the skill required; the source of
      the instrumentalities and tools; the location of the work; the duration of
      the relationship between the parties; whether the hiring party has the
      right to assign additional projects to the hired party; the extent of the
      hired party's discretion over when and how long to work; the method of
      payment; the hired party's role in hiring and paying assistants; whether
      the work is part of the regular business of the hiring party; whether the
      hiring party is in business; the provision of employee benefits; and the
      tax treatment of the hired party. . . . No one of these factors is
      determinative.




                                          -5-
Lerohl, 322 F.3d at 489 (quoting Creative Non-Violence v. Reid, 490 U.S. 730,
751–52 (1989) (citing Restatement (Second) of Agency § 220(2) (1958))).2 "In
weighing these factors, 'all of the incidents of the relationship must be assessed and
weighed with no one factor being decisive.'" Lerohl, 322 F.3d at 489 (quoting
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324 (1992)). "The district court
may properly consider economic aspects of the parties' relationship." Id. (citing Wilde
v. County of Kandiyohi, 15 F.3d 103, 106 (8th Cir. 1994)).

      Appellant argues that RCRH exercised a heightened level of control over Dr.
Wojewski to such an extent that he was an employee for ADA purposes. Appellant
contends that the terms of the 2003 Letter of Agreement subjected Dr. Wojewski to
more control by RCRH than most doctors and perhaps rendered him the most
controlled doctor in America.

      The district court rejected this argument based on Cilecek v. Inova Health
System Services, 115 F.3d 256, 262 (4th Cir. 1997), which states that "[b]ecause of the
overarching demands of the medical profession, the tension in professional control


      2
       Restatement (Second) Agency§ 220, comment h provides:

      The relation of master and servant is indicated by the following factors:
      an agreement for close supervision or de facto close supervision of the
      servant's work; work which does not require the services of one highly
      educated or skilled; the supplying of tools by the employer; payment by
      hour or month; employment over a considerable period of time with
      regular hours; full time employment by one employer; employment in a
      specific area or over a fixed route; the fact that the work is part of the
      regular business of the employer; the fact that the community regards
      those doing such work as servants; the belief by the parties that there is
      a master and servant relation; an agreement that the work cannot be
      delegated.



                                         -6-
between doctors and hospitals for medical services rendered at hospitals is not, we
believe, a reliable indicator of whether the doctor is an employee or an independent
contractor at the hospital." As noted by the district court and by appellees, several
other circuits have held that a doctor who loses hospital privileges is an independent
contractor. Shah v. Deaconess Hosp., 355 F.3d 496 (6th Cir. 2004) (holding that
surgeon with surgical privileges was not an employee of hospital and thus could not
bring suit under either the Age Discrimination in Employment Act or Title VII of the
Civil Rights Act of 1964); Vakharia v. Swedish Covenant Hosp., 190 F.3d 799,
805–06 (7th Cir. 1999) (holding that anesthesiologist whose staff privileges were
terminated was not a hospital employee and thus could not bring suit under either the
Age Discrimination in Employment Act or Title VII of the Civil Rights Act of 1964);
Cilecek, 115 at 262; Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487 (7th Cir.
1996) (holding that physician was an independent contractor and thus could not sue
hospital under Title VII of the Civil Rights Act of 1964); Diggs v. Harris Hosp.-
Methodist, Inc., 847 F.2d 270, 271 (5th Cir. 1988) (holding that physician with staff
privileges is not an employee and thus cannot bring claim under Title VII of 1964
Civil Rights Act).

        Applying the relevant tests to these facts, we hold the 2003 Letter of Agreement
did not convert the relationship between RCRH and Dr. Wojewski into that of
employer and employee. Dr. Wojewski performed highly skilled surgical work, leased
his own office space, scheduled his operating room time, employed and paid his own
staff, billed his patients directly, did not receive any social security or other benefits
from RCRH, and did not receive a form W-2 or 1099 from RCRH. The district court
correctly concluded that Dr. Wojewski was an independent contractor. The 2003
Letter of Agreement certainly subjected Dr. Wojewski to a heightened level of
personal control. However, the controls set forth in the agreement are akin to the
normal tensions discussed in Cilecek. RCRH could take reasonable steps to ensure
patient safety and avoid professional liability while not attempting to control the
manner in which Dr. Wojewski performed operations. Cilecek, 115 F.3d at 262.

                                           -7-
                                 B. Rehabilitation Act
       The district court held that Dr. Wojewski's claim under the Rehabilitation Act
failed because he was not an employee. On appeal, appellant argues that the
Rehabilitation Act does not require employee status, or, in the alternative, Dr.
Wojewski was an employee under the same arguments relating to his claim under
Title I of the ADA. We have already held that Dr. Wojewski was an independent
contractor, not an employee. Therefore, we need only address whether the
Rehabilitation Act provides relief for independent contractors.

       Section 504 of the Rehabilitation Act provides in relevant part that "[n]o
otherwise qualified individual with a disability in the United States . . . shall, solely
by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance[.]" 29 U.S.C. § 794. "To prevail on a claim under § 504,
a plaintiff must demonstrate that: (1) he is a qualified individual with a disability; (2)
he was denied the benefits of a program or activity of a public entity which receives
federal funds; and (3) he was discriminated against based on his disability." Gorman
v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998) (footnote omitted) (citing § 794(a)).

       Although the ADA has no federal funding requirement, "it is otherwise similar
in substance to the Rehabilitation Act, and 'cases interpreting either are applicable and
interchangeable.'" Gorman, 152 F.3d at 912 (quoting Allison v. Dep't of Corr., 94 F.3d
494, 497 (8th Cir.1996)). Besides the funding requirement, another important
difference between the two acts is that the Rehabilitation Act "imposes a requirement
that a person's disability serve as the sole impetus for a defendant's adverse action
against the plaintiff." Amir v. St. Louis Univ., 184 F.3d 1017, 1029 n.5 (8th Cir. 1999)
(emphasis original); see also § 794(a). The parties do not dispute that RCRH receives
federal funding or that the termination of Dr. Wojewski's medical staff appointment
was due to his disability. The dispute centers upon whether Dr. Wojewski is "a
qualified individual with a disability."

                                           -8-
       The parties cite no case that has decided whether a non-employee can be a
qualified individual under § 504. Appellant relies heavily on Menkowitz v. Pottstown
Memorial Medical Center, 154 F.3d 113 (3rd Cir. 1998) and cites Schalk v. Associated
Anesthesiology Practice, 316 F. Supp. 2d 244, 250 (D. Md. 2004), but these cases do
not decide the crucial issue. Menkowitz addressed whether the physician plaintiff was
excluded solely due to his disability; the issue of whether the plaintiff was a qualified
individual was not in dispute and was not decided by Menkowitz. 154 F.3d at 123–24.
In Schalk, the court expressly stated that it was not deciding the issue of whether an
employer-employee relationship was required and dismissed the claim as barred by
the statute of limitations. Schalk, 316 F. Supp. 2d at 250.

       In reaching its decision, the district court relied upon our decision in Beauford
v. Father Flanagan's Boys' Home, 831 F.2d 768, 771 (8th Cir. 1987). There, we stated
that "section 504 was designed to prohibit discrimination within the ambit of an
employment relationship in which the employee is potentially able to do the job in
question." The Beauford court considered a Department of Health and Human
Services regulation, which provided that "[w]ith respect to employment, a
handicapped person who, with reasonable accommodation, can perform the essential
functions of the job in question[.]" Beauford, 831 F.2d at 771 (citing 45 CFR §
84.3(l)).3 The district court interpreted Beauford as defining "a qualified individual
with a disability" as an "employee." However, Beauford involved a plaintiff who was
clearly an employee. In other words, Beauford did not decide whether the
Rehabilitation Act applies to independent contractors.

       Given the similarity between Title I and the Rehabilitation Act, absent authority
to the contrary, we construe both to apply to an employee-employer relationship and
decline appellant's invitation to extend coverage of the Rehabilitation Act to


      3
       The actual citation in Beauford is to 45 C.F.R. § 84.3(k), but this provision has
been re-codified as 45 C.F.R. § 84.3(l).

                                          -9-
independent contractors. Though we do not find that Beauford controls, we do find
it somewhat helpful in that it clearly states that the focus of the Rehabilitation Act is
upon providing remedies for individuals who are employees. The Rehabilitation Act
and Title I of the ADA are interchangeable in many respects. E.g., Gorman, 152 F.3d
at 912. The ADA requires an employee-employer relationship, and the Rehabilitation
Act contemplates the same. Furthermore, as discussed in Beauford, 831 F.2d at 771,
the relevant portion of the regulations couches the scope of the Rehabilitation Act in
terms of employment. See § 84.3(l). Because Dr. Wojewski was not an employee of
RCRH, the district court correctly granted summary judgment to RCRH.

                                    III. Conclusion
       We vacate the district court's order and remand with instructions to dismiss the
Title III claim as moot. With respect to Dr. Wojewski's claims under Title I of the
ADA and the Rehabilitation Act, we affirm the grant of summary judgment to the
defendants because Dr. Wojewski was not an employee of the hospital.
                       ______________________________




                                          -10-
