Pinkerton v. Spellings

• Decision Date: 27 May 2008
• Docket Number: No. 06-10657.,06-10657.
• Citation: 529 F.3d 513
• Parties: Robert PINKERTON, Plaintiff-Appellant, v. Margaret SPELLINGS, Secretary, U.S. Department of Education, and the U.S. Department of Education, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

529 F.3d 513

Robert PINKERTON, Plaintiff-Appellant, v. Margaret SPELLINGS, Secretary, U.S. Department of Education, and the U.S. Department of Education, Defendants-Appellees.

No. 06-10657.

United States Court of Appeals, Fifth Circuit.

May 27, 2008.

John Henry Crouch, IV (argued), Theodore Carl Anderson, Kilgore & Kilgore, Dallas, TX, for Pinkerton.

Samantha Lee Chaifetz, Office of Sol. Gen., Marleigh D. Dover, Civ. Div., U.S. Dept. of Justice, Washington, DC, Ann Cruce Roberts (argued), Lubbock, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

PER CURIAM:

In response to the Secretary of Education's Petition for Rehearing, we withdraw the prior panel opinion, 518 F.3d 278, in its entirety and substitute the following:

Robert Pinkerton, after his termination as an employee of the United States Department of Education ("DOE"), brought this suit alleging disability discrimination under Sections 501 and 504 of the Rehabilitation Act, 29 U.S.C. §§ 791 and 794. The precedent of this circuit allowed his suit under both sections of the Act and Pinkerton was entitled to the proper Section 501 causation standard. Because the jury charge stated the stricter causation requirement of Section 504, we must reverse the judgment and remand for a new trial.

I. Background

Pinkerton suffers from arthrogryposis, which causes developmental abnormalities such as shortness of limbs, deformed joints, and limitation of motion in limbs. He is visibly disabled and limited in his ability to use a keyboard. He began his employment with DOE in December 1980 as an Equal Opportunity Specialist in the Office for Civil Rights ("OCR"), under an initiative to recruit disabled individuals into federal employment.

In 1997, Timothy Blanchard became Pinkerton's first line supervisor and Taylor August became the Regional Director. In 2002, Blanchard issued a proposal to remove Pinkerton for unacceptable performance and August made the decision to remove Pinkerton.

Pinkerton filed a timely Equal Employment Opportunity ("EEO") complaint alleging discrimination and retaliation. DOE's Equal Opportunity Group issued a final agency decision finding no discrimination. In 2004, Pinkerton filed suit against DOE in federal district court under Sections 501 and 504 of the Rehabilitation Act.

Following a jury verdict favorable to DOE, the court rendered judgment to that effect. Pinkerton appeals the judgment, alleging errors in the jury charge and several evidentiary rulings.

II. The Jury Charge

A. Standard of Review

"[T]he district court has broad discretion in formulating the jury charge." Concise Oil and Gas P'ship v. Louisiana Intrastate Gas Corp.¹ This court reviews a jury charge with deference and will reverse "only when the charge as a whole leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations." Hall v. State Farm Fire & Cas. Co.² But the underlying question here — the causation standard under § 501 of the Rehabilitation Act — is one of statutory construction, which this court reviews de novo. Soledad v. U.S. Dep't of Treasury.³

B. Discussion

1. The Section 501 and ADA Causation Standards Are Equivalent

Under our precedent, federal employees may bring disability discrimination claims against the Government under either § 501 or § 504 of the Rehabilitation Act (29 U.S.C. §§ 791 & 794). Prewitt v. U.S. Postal Serv.⁴ Some circuits disagree, holding that § 501 is the exclusive right of action for federal employees.⁵ These courts reason that it makes "no sense for Congress to provide ... different sets of remedies ... for the same wrong committed by the same employer."⁶ The controlling issue here, however, is the burden of proof for the causation connection between disability discrimination and the employment decision under § 501. The district court had the jury decide whether Pinkerton was terminated solely because of his disability, while he has insisted that the question should be whether his disability was a motivating factor in DOE's decision to terminate him.⁷ Pinkerton preserved this issue at trial.

Pinkerton contends that the "sole cause" language is an incorrect statement of the law and that § 501 of the Rehabilitation Act instead incorporates the "mixed-motive" causation standard that he says applies under the Americans with Disabilities Act ("ADA"). DOE responds that § 501 uses the same standard as § 504 of the Rehabilitation Act (29 U.S.C. § 794), where "[l]iability can only be found when the discrimination was `solely by reason of her or his disability,' not when it is simply a `motivating factor.'"⁸ To determine the correct causation standard under § 501, we will first determine whether the § 501 causation standard and the ADA standard are the same. Because we hold that they are equivalent, in the next section we will examine whether the ADA causation standard is the "motivating factor" standard.

Under § 504, the causation standard is settled. Although Congress instructed in § 504(d) that ADA standards be used in determining whether § 504 has been violated (29 U.S.C. § 794(d)),⁹ the Soledad court held that the explicit "solely by reason of" language of § 504(a) (29 U.S.C. § 794(a))¹⁰ is the correct standard for determining whether a violation of the provision has occurred. The court held that the language of § 504(a) trumped the language of § 504(d) because "the more specific provision within a statute prevails."¹¹ In Soledad, the verdict was set aside because the jury had been asked if the disability was a "motivating factor" of the defendant's treatment and whether the discrimination was "because of" his disability.¹²

Section 501 does not contain language overriding the ADA standards. Nevertheless, some district courts have applied § 504's stringent causation standard to § 501 cases without comment, citing to cases brought under § 504.¹³ Other courts have used less stringent causation standards.¹⁴ In other cases, courts have passed by the § 501 causation question, noting the lack of a clear answer in the statute.¹⁵

We begin our analysis with the statute's language. Congress's inclusion of § 501(g), which explicitly incorporates the use of ADA standards "to determine whether this section has been violated" (29 U.S.C. § 791(g)),¹⁶ means that, under a plain reading of the statute, the ADA causation standard incorporated by § 501(g) governs claims brought under § 501.

A causation standard for § 501 that aligns with the ADA standard is consistent with the history of the statute. Section 501 of the Rehabilitation Act of 1973 applies to federal government departments and agencies.¹⁷ By contrast, the ADA, enacted in 1990, explicitly excludes the federal government from coverage.¹⁸ Subsequently, the 1992 amendments to the Rehabilitation Act, which included the addition of § 501(g), were intended to make the Rehabilitation Act more consistent with the ADA and to grant protections in line with the protections provided to ADA-covered employees.¹⁹ It is consistent with this statutory history that the federal government intends courts to apply the identical causation standard to claims brought by its own employees and plaintiffs suing under the ADA.

The conclusion that the ADA causation standard should be applied to § 501 claims is further supported by the fact that Equal Employment Opportunity Commission ("EEOC") regulations implementing § 501 have incorporated ADA standards, including the level of causation required for findings of a violation. The regulations provide that the "standards used to determine whether section 501 ... has been violated in a complaint alleging nonaffirmative action employment discrimination under this part shall be the standards applied under ... the Americans with Disabilities Act of 1990 ...."²⁰

Applying different causation standards to claims brought under § 501 and § 504 is consistent with how Congress distinguishes between § 501 and § 504 in the statutory scheme. Under § 794a(a)(1), the "remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964" govern complaints under § 501.²¹ By contrast, the "remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964" apply to § 504 claims.²²

The Supreme Court has further distinguished between § 501 and § 504 with regard to remedies. The Court has held that Congress waived the Government's sovereign immunity from monetary remedies for claims brought under § 501, while immunity is not waived for § 504 claims. Lane v. Pena.²³ Thus, plaintiffs may bring discrimination claims under § 501 and § 504, but recover monetary relief only under § 501.

2. The ADA's Standard of Causation

The causation question under the ADA is really a question of whether "the ADA's use of the causal language `because of,'[<sup>24</sup>] `by reason of,'[²⁵] and `because'[²⁶] means that discriminatory and retaliatory conduct is proscribed only if it was solely because of, solely by reason of, or solely because an employee was disabled or requested an accommodation." Head v. Glacier Nw., Inc.²⁷ The answer to this question is unsettled in the Fifth Circuit. Some circuit decisions in the 1990s endorsed, without explaining the reasons, the "sole causation" standard.²⁸ Other circuit decisions have approved the "motivating factor" causation test for ADA claims.²⁹

Seven of our sister circuits have reached the conclusion that the ADA causation standard does not require a showing of sole cause.³⁰ The Ninth Circuit in Head v. Glacier Nw. Inc. and the Eleventh Circuit in McNely v. Ocala Star-Banner Corp., thoroughly analyzed this question. The McNely court concluded after analyzing the statutory language, the legislative history, and the Supreme Court precedent interpreting "because of" in Title VII cases, that the "sole cause" standard was misplaced in ADA cases.³...