Fleming v. Yuma Regional Medical Center

• Decision Date: 19 November 2009
• Docket Number: No. 07-16427.,07-16427.
• Citation: 587 F.3d 938
• Parties: Lester FLEMING, Plaintiff-Appellant, v. YUMA REGIONAL MEDICAL CENTER; Yuma Anesthesia Medical Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

587 F.3d 938

Lester FLEMING, Plaintiff-Appellant, v. YUMA REGIONAL MEDICAL CENTER; Yuma Anesthesia Medical Services, Defendants-Appellees.

No. 07-16427.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2009.

Filed November 19, 2009.

Stanley Lubin (argued), Lubin & Enoch, P.C., Phoenix, AZ; Stephanie M. Marnin, Outten & Golden, L.L.P., Stamford, CT, for the plaintiff-appellant.

Sandra J. Creta, Quarles & Brady L.L.P., Phoenix, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-05-03906-PHX-ROS.

Before: RONALD M. GOULD and JAY S. BYBEE, Circuit Judges, and TIMOTHY TYMKOVICH,^* Circuit Judge.

BYBEE, Circuit Judge:

This case presents a question of first impression in our court: Does § 504 of the Rehabilitation Act, 29 U.S.C. § 794, extend to a claim of discrimination brought by an independent contractor? In order to answer that question, we must decide whether § 504(d), which refers to "the standards applied under title I of the Americans with Disabilities Act ... as such sections relate to employment," incorporates Title I literally or selectively. If Title I is incorporated literally, then the Rehabilitation Act is limited by the ADA and only covers employer-employee relationships in the workplace; if selectively, then the Rehabilitation Act covers all individuals "subject to discrimination under any program or activity receiving Federal financial assistance," who may bring an employment discrimination claim based on the standards found in the ADA. 29 U.S.C. § 794(a). The Sixth and Eighth Circuits have concluded that Title I is incorporated literally, Wojewski v. Rapid City Reg'l Hosp., 450 F.3d 338 (8th Cir.2006); Hiler v. Brown, 177 F.3d 542 (6th Cir.1999), while the Tenth Circuit has concluded that Title I is incorporated selectively. Schrader v. Ray, 296 F.3d 968 (10th Cir.2002). We agree with the Tenth Circuit, and conclude that § 504 incorporates the "standards" of Title I of the ADA for proving when discrimination in the workplace is actionable, but not Title I in toto, and therefore the Rehabilitation Act covers discrimination claims by an independent contractor. Accordingly, we reverse the judgment of the district court.

I

For purposes of this appeal, the facts of this case are simple and not contested. Dr. Lester Fleming is an anesthesiologist who suffers from sickle cell anemia. In 2005, Fleming applied for a position as an anesthesiologist at the Yuma Regional Medical Center ("Yuma"). Upon learning of Fleming's sickle cell anemia, Yuma told him that it would not be able to accommodate his operating room and call schedules. Fleming declined to accept this condition of employment, effectively canceling the contract.

Fleming brought suit against Yuma¹ for breach of his employment contract and employment discrimination in violation of § 504 of the Rehabilitation Act. The district court granted summary judgment in Yuma's favor, ruling that (1) Fleming was an independent contractor, and that (2) independent contractors are not protected by the Rehabilitation Act. Fleming appeals the ruling that the Rehabilitation Act does not apply to independent contractors; he does not, however, appeal the district court's finding that he is an independent contractor.²

II

The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., was the "first major federal statute designed to protect the rights of ... the handicapped people of this country." Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir.1990); see also Consol. Rail Corp. v. Darrone, 465 U.S. 624, 626, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984) (describing the Act as "a comprehensive federal program aimed at improving the lot of the handicapped"). Section 504 creates a private right of action for individuals subjected to disability discrimination by any program or activity receiving federal financial assistance, Kling v. Los Angeles County, 633 F.2d 876, 878 (9th Cir.1980), including employment discrimination in such programs, Consol. Rail, 465 U.S. at 632, 104 S.Ct. 1248; Boyd v. U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir.1985). It provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The Rehabilitation Act broadly defines "program or activity" to include "all of the operations of—... an entire corporation, partnership, or other private organization, or an entire sole proprietorship" if the entity as a whole receives federal assistance or if the entity "is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation," and various other services. 29 U.S.C. § 794(b)(3)(A).

The Rehabilitation Act, as amended, incorporates various standards and remedies from other civil rights laws. Most important for our case, § 504(d) provides that "[t]he standards used to determine whether this section 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 ... as such sections relate to employment." 29 U.S.C. § 794(d). See 42 U.S.C. §§ 12111-17, 12201-04, 12210. Title I of the ADA defines key terms in the act, § 12111, defines discrimination in the workplace, § 12112, provides for defenses and limitations for employees using illegal drugs or alcohol, §§ 12113-14, 12210, and commits enforcement to the Equal Opportunity Employment Commission and the Attorney General, § 12117. Although we have not addressed the question, other circuits have held that independent contractors are not covered by Title I. 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); Birchem v. Knights of Columbus, 116 F.3d 310, 312-13 (8th Cir. 1997).

The issue before us is whether Dr. Fleming, as an independent contractor, may maintain suit against Yuma based on § 504 of the Rehabilitation Act. Fleming urges us to read § 504(d) to mean that "[t]he standards" of Title I of the ADA— and not Title I itself—should be "used to determine whether this section has been violated in a complaint alleging employment discrimination." 29 U.S.C. § 794(d) (emphasis added). Relying on the Tenth Circuit's opinion in Schrader, Dr. Fleming would have us hold that § 504 does not literally incorporate Title I of the ADA and, therefore, "§ 504(d) addresses only the substantive standards for determining what conduct violates the Rehabilitation Act, not the definition of who is covered." Schrader, 296 F.3d at 972.

Yuma, not surprisingly, offers a different view. It would have us hold that § 504(d) incorporates Title I of the ADA in toto, including any limitations found in those provisions. Relying on decisions from the Sixth and Eighth Circuits, Yuma argues that "the focus of the Rehabilitation Act is upon providing remedies for individuals who are employees" and therefore the Rehabilitation Act, like Title I of the ADA, "requires an employee-employer relationship." Wojewski, 450 F.3d at 345. The district court agreed with Yuma and found that Fleming was not an employee, but an independent contractor. It then held, citing PGA Tour, Inc. v. Martin, 532 U.S. 661, 692, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) (Scalia, J., dissenting), that "[e]mployment actions under the Rehabilitation Act may only be brought by employees and cannot be brought by independent contractors." Thus, Yuma and the district court would have us read Title I of the ADA into § 504(d) as though Title I had been incorporated on a jot-for-jot basis.

III

Although the matter is not entirely free from doubt, we agree with Dr. Fleming that he is covered by the Rehabilitation Act even though he is an independent contractor. We reach this conclusion for several reasons.

A

First, the scope of the Rehabilitation Act is broader than the ADA.³ The Rehabilitation Act covers any "otherwise qualified individual" who has been "excluded from the participation in, or denied the benefits of, or ... subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The Rehabilitation Act covers any program receiving federal funds. The Act carefully defines "program or activity" as "all of the operations of" state instrumentalities, colleges and universities, local education agencies, and "an entire corporation, partnership, or other private organization, or an entire sole proprietorship." 29 U.S.C. § 794(b) (emphasis added). This language has led us to interpret "program or activity broadly." Sharer v. Oregon, 581 F.3d 1176, 1178 (9th Cir.2009) (quoting Haybarger v. Lawrence County Adult Prob. & Parole, 551 F.3d 193, 200 (3d Cir.2008) (internal quotation marks omitted)). Thus, the Rehabilitation Act covers "all of the operations" of covered entities, not only those related to employment.

By contrast, Title I of the ADA prohibits "discriminat[ion] against a qualified individual ... 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. Title I covers all aspects of the employer-employee relationship, but unlike § 504 of the Rehabilitation Act, it does not cover other relationships, which are addressed elsewhere in the ADA. See Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169, 1172, 1177-78 (9th Cir.1999).

B

Second, Congress did not use language of incorporation when it referred to the ADA in § 504. Instead, Congress referred to the "standards used to determine whether [§ 504]...