Flynn v. Distinctive Home Care, Inc.
| Decision Date | 01 February 2016 |
| Docket Number | No. 15–50314.,15–50314. |
| Citation | 812 F.3d 422 |
| Parties | Rochelle FLYNN, Plaintiff–Appellant v. DISTINCTIVE HOME CARE, INCORPORATED, doing business as Distinctive Healthcare Staffing, Incorporated, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert Chris Pittard (argued), Forte & Pittard, P.L.L.C., San Antonio, TX, for Plaintiff–Appellant.
Michael David McQueen, Kemp Smith, L.L.P., El Paso, TX, Paul W. Mengel, III (argued), Nichole De Vries Atallah, Esq., Litigation Counsel, PilieroMazza, P.L.L.C., Washington, DC, for Defendant–Appellee Distinctive Home Care, Incorporated, doing business as Distinctive Healthcare Staffing, Incorporated.
James Michael Kimbell, Esq., Attorney, Katherine T. Garber, Esq., Strasburger & Price, L.L.P., Houston, TX, for Defendant–Appellee Spectrum Healthcare Resources, Incorporated.
Dara S. Smith, Esq. (argued), Daniel B. Kohrman, Senior Attorney, AARP Foundation Litigation, Washington, DC, for Amicus Curiae American Association of Retired Persons.
Brian D. East, Senior Attorney, Disability Rights Texas, Austin, TX, for Amicus Curiae Disability Rights Texas.
Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
In this case, we must decide whether Section 504 of the Rehabilitation Act authorizes employment discrimination suits by independent contractors. We conclude that it does. We therefore vacate the district court's judgment in part and remand for further proceedings.
The parties do not dispute the facts essential to the resolution of this appeal. Plaintiff–Appellant Dr. Rochelle Flynn is a contract pediatrician. Spectrum Healthcare Resources, Inc. ("Spectrum") contracted with the United States Air Force to provide medical services at the Lackland Air Force Base in San Antonio, Texas. Spectrum and Flynn entered into a contract whereby Flynn agreed to provide clinical pediatric services at the San Antonio Military Medical Center for twenty hours per week. The agreement explicitly provided that "[t]he relationship between [Spectrum] and [Flynn] would be that of independent contractor," such that Spectrum "w[ould] not control or have the right to exercise control over the manner or means in which" Flynn performed medical services at the base. Flynn subsequently assigned her rights under the contract to Skwids and Skwiggles Pediatrics, PLLC ("Skwids & Skwiggles"), a professional company managed by Flynn.
Spectrum's contract with the Government terminated in March 2013. Defendant–Appellee Distinctive Home Care, Inc., d/b/a Distinctive Healthcare Staffing, Inc. ("Distinctive") took over Spectrum's duties to provide medical services at Lackland. However, Distinctive "retained Spectrum as a subcontractor" on the government contract, such that "Spectrum continued to directly communicate with the independent contractors" providing medical services at the base, including Flynn.
Distinctive entered into a new contract with Skwids & Skwiggles in April 2013. Pursuant to the new agreement, Skwids & Skwiggles "agree[d] to provide a physician, specifically [Flynn], to perform clinical professional pediatric services" at the San Antonio facility "for at least 936 hours per year." Like the agreement between Flynn and Spectrum, the agreement between Skwids & Skwiggles and Distinctive explicitly provided that "[t]he relationship between [Distinctive] and [Skwids & Skwiggles]/[Flynn] shall be that of independent contractor," such that Distinctive "w[ould] not control or have the right to exercise control over the manner or means in which" Skwids & Skwiggles or Flynn performed medical services at the base.
On May 15, 2013, Flynn's psychologist diagnosed Flynn with Autism Spectrum Disorder–Mild ("ASD–M"), a condition formerly known as "Asperger's Syndrome." ASD–M is a psychological disorder characterized by significant difficulties in nonverbal communication and social interaction, as well as restricted and repetitive patterns of behavior and interests.
Around that same date, David Warner, the government officer responsible for overseeing Distinctive's contract with the Air Force, contacted Distinctive's president. Warner "raised several concerns with Dr. Flynn's performance, including several complaints from patients and co-workers, Dr. Flynn's failure to report to work on time and her failure to timely complete patient charts." Warner "stated that it was in the best interest of the Government if Dr. Flynn was removed from providing services" under Distinctive's contract with the Air Force.
On May 16, 2013, a Spectrum employee named Dr. Richard Takao informed Flynn that the clinic was concerned about her performance. In response, Flynn informed Takao that her psychologist had diagnosed her with ASD–M the previous day. Flynn believes that her condition "would explain many of the issues that were of concern to" Distinctive and Spectrum. No one at Distinctive or Spectrum knew that Flynn had ASD–M before May 16, 2013.
On or about May 30, 2013, Warner sent Distinctive an e-mail containing documentation that purportedly "substantiat[ed] the allegations of poor performance and patient complaints" against Flynn. Warner, "on behalf of the Government," again "directed that Dr. Flynn be removed from" her duties as an independent contractor.
Flynn, Spectrum, and Distinctive held a conference call on June 7, 2013, during which Flynn asked to be reinstated with accommodations. Distinctive and Spectrum discussed Flynn's requested accommodations with the Air Force. On June 28, 2013, the Government responded that it could not accommodate Flynn's request. Spectrum and Distinctive therefore informed Flynn that they would not retain her as an independent contractor.
Flynn sued Spectrum and Distinctive for employment discrimination under the Rehabilitation Act.1 She claims that Spectrum and Distinctive "discriminated against [her] on the basis of her disability, subjected [her] to a hostile work environment based on her disability, and denied her a reasonable accommodation."
The district court concluded that Flynn could not sue Spectrum or Distinctive for employment discrimination under the Rehabilitation Act because she was an independent contractor, not an employee. The court accordingly granted summary judgment in Spectrum and Distinctive's favor on Flynn's Rehabilitation Act claims.
Flynn now appeals. The AARP and Disability Rights Texas have filed a joint amicus brief in support of Flynn.
The parties jointly moved to dismiss the appeal as to Spectrum, and we granted that motion. Distinctive is therefore the only remaining appellee in this case.
We review a district court's order granting summary judgment de novo.2 "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."3
This appeal concerns an issue of first impression in our Circuit: May an independent contractor who lacks an employer-employee relationship with the defendant sue that defendant for employment discrimination under Section 504 of the Rehabilitation Act? Our sister Circuits have split on that issue,4 and the Supreme Court has not resolved the split.5 We turn now to that question.
The Rehabilitation Act of 1973 "was the ‘first major federal statute designed to protect the rights of the handicapped people of this country.’ "6 The current form of Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794, provides in relevant part:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.7
Thus, Section 504 "broadly prohibit[s] discrimination"—including employment discrimination—"against disabled persons in federally assisted programs or activities."8
Because Section 504 of the Rehabilitation Act "bars discrimination only in programs that receive federal financial assistance," it does not broadly "protect[ ] the disabled from discrimination in the private sector."9 To fill that gap, Congress enacted the Americans with Disabilities Act ("ADA") in 1990.
Title I is the subchapter of the ADA that prohibits employment discrimination.10 Title I prohibits any "covered entity" from "discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."11 The term "covered entity" includes any "employer."12 However, not every entity that hires employees counts as an "employer" within the meaning of Title I; Congress defined that term to exclude entities with fewer than fifteen employees;13 the United States and corporations wholly owned by the United States;14 Indian tribes;15 and a limited subset of tax-exempt organizations.16
Soon after Congress enacted the ADA, it became concerned about potential inconsistencies between the Rehabilitation Act and the ADA. The Senate Subcommittee on Disability Policy held a hearing at which numerous witnesses "testified repeatedly regarding the importance of the passage of the Americans with Disabilities Act and the need to include the philosophies embodied in the ADA in the Rehabilitation Act."17 To assuage these concerns, Congress added subsection (d) to Section 504 of the Rehabilitation Act, which incorporated portions of the ADA by reference:
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