IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10657

ROBERT PINKERTON

Plaintiff - Appellant

v.

MARGARET SPELLINGS, SECRETARY, U.S. DEPARTMENT OF

EDUCATION, AND THE U.S. DEPARTMENT OF EDUCATION

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, 518F.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

United States Court of Appeals

Fifth Circuit

F I L E D

May 27, 2008

Charles R. Fulbruge III

Clerk
No. 06-10657

2

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 Specialistin 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.
No. 06-10657

1 986 F.2d 1463, 1474 (5th Cir. 1993) (internal quotation marks omitted).

2 937 F.2d 210, 214 (5th Cir. 1991) (internal quotation marks omitted).

3 304 F.3d 500, 503 (5th Cir. 2002).

4 662 F.2d 292, 304 (5th Cir. 1981); see de la Torres v. Bolger, 781 F.2d 1134, 1135 n.1

(5th Cir. 1986) (per curiam) (listing cases).

5 See, e.g., Taylor v. Small, 350 F.3d 1286, 1291 (D.C. Cir. 2003); Rivera v. Heyman, 157

F.3d 101, 104–05 (2d Cir. 1998); McGuinness v. U.S. Postal Serv., 744 F.2d 1318, 1321–22 (7th

Cir. 1984).

3

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 ofthe

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
No. 06-10657

6 McGuinness, 744 F.2d at 1321.

7 Two questions were submitted to the jury. The first asked, “Do you find from a

preponderance of the evidence that Pinkerton was a ‘qualified individual’ as defined in the

instructions above?” The jury answered yes. The second question, which the jury answered

in the negative, was, “Do you find from a preponderance of the evidence that the DOE

terminated Pinkerton solely because of his disability?” (emphasis added).

8 Soledad, 304 F.3d at 505.

4

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
No. 06-10657

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“The 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 . . . the Americans with Disabilities Act . . . .” 29 U.S.C. § 794(d).

10 “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 . . . .” 29 U.S.C. § 794(a).

11 Soledad, 304 F.3d at 505.

12 Id. at 503–05.

13 See, e.g., Joachim v. Babbit, 60 F. Supp. 2d 581, 585 (M.D. La. 1999); Dowden v.

Tisch, 729 F. Supp. 1137, 1138 (E.D. Tex. 1989).

14 Sutton v. Lader, 185 F.3d 1203, 1207–08 (11th Cir. 1999) (stating that a § 501

plaintiff must show that “he was subjected to unlawful discrimination as a result of his

disability . . . . The standard for determining liability under the Rehabilitation Act is the same

as that under the ADA.”); Burciaga v. West, 996 F. Supp. 628, 640 (W.D. Tex. 1998) (amending

a memorandum opinion to read that the § 501 plaintiff must prove that he “was discriminated

against because of the handicap”).

5

has been violated (29 U.S.C. § 794(d)),9the 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 ofthe 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” ofthe 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,
No. 06-10657

15 See Williams v. Widnall, 79 F.3d 1003, 1005 n.4 (10th Cir. 1996) (“As establishment

of element (3), i.e. whether a § 501 plaintiff must show that his disability was the cause or a

cause of termination is not necessary to the resolution of this case, we leave that issue to

another day.”); Leary v. Dalton, 58 F.3d 748, 752 (1st Cir. 1995) (“Not only is it unclear

whether the right of action under § 504 overlaps with that in § 501, it is also unclear, in light

of recent amendments to the Rehabilitation Act, whether the two sections require the same

showing of causation.”); Florence v. Runyon, 990 F. Supp. 485, 491 (N.D. Tex. 1997) (“In short,

it is not entirely clear whether § 504’s causation standard applies to § 501 cases.”).

16 “The standards used to determine whether this section has been violated in a

complaint alleging nonaffirmative action employment discrimination under this section shall

be the standards applied under . . . the Americans with Disabilities Act . . . .” 29 U.S.C. §

791(g).

17 29 U.S.C. § 791.

18 42 U.S.C. § 12111(5)(B); see Hendrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003).

6

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
No. 06-10657

19 Schrader v. Ray, 296 F.3d 968, 973–74 (10th Cir. 2002).

20 29 C.F.R. § 1614.203(b).

21 29 U.S.C. § 794a(a)(1).

22 29 U.S.C. § 794a(a)(2).

7

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
No. 06-10657

23 518 U.S. 187, 193–94, 116 S. Ct. 2092, 2097 (1996).

24 42 U.S.C. § 12112(a). Title I of the ADA states that: “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.” Id. (emphasis added).

25 42 U.S.C. § 12132. Title II of the ADA states that: “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.” Id. (emphasis added).

26 42 U.S.C. § 12203(a). Title IV of the ADA states that: “No person shall discriminate

against any individual because such individual has opposed any act or practice made unlawful

by this chapter or because such individual made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing under this chapter.” Id. (emphasis

added).

27 413 F.3d 1053, 1063–64 (9th Cir. 2005).

28 See, e.g., Still v. Freeport-McMoran, Inc., 120 F.3d 50, 51–52 (5th Cir. 1997) (per

curiam); Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996) (per curiam);

Rizzo v. Children’s World Learning Ctrs., Inc., 84 F.3d 758, 763–65 (5th Cir. 1996).

8

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,’[24]‘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
No. 06-10657

29 Soledad v. U.S. Dept. ofTreasury, 304 F.3d 500, 503–04 (5th Cir. 2002) (citing Ahrens

v. Perot Sys. Corp., 205 F.3d 831, 835 (5th Cir. 2000) for the proposition that to succeed in an

ADA claim “discrimination need not be the sole reason for the adverse employment decision,

[but] must actually play a role in the employer’s decision making process and have a

determinative influence on the outcome”); Newberry v. E. Texas State Univ., 161 F.3d 276, 279

(5th Cir. 1998) (citing Hypes v. First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998) for the

proposition that an ADA plaintiff must show that his disability was a “motivating factor” in

the decision to take an adverse employment action); Buchanan v. City of San Antonio, 85 F.3d

196, 200 (5th Cir. 1996). These cases did not explicitly address if they were rejecting the “sole

cause” test discussed in other Fifth Circuit decisions. Recent cases have noted that the Fifth

Circuit has announced two different causation standards for ADA cases without saying which

one is controlling law in the circuit. See, e.g., Orr v. Echosphere, L.L.C., No. Civ. A.

3:05CV1440B, 2006 WL 435125, at *2 (N.D. Tex. Feb. 23, 2006).

30 Head, 413 F.3d at 1063–65; Parker v. Columbia Pictures Indus., 204 F.3d 326, 337

(2d Cir. 2000); Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999); Foster v. Arthur Anderson,

LLP, 168 F.3d 1029, 1033–34 (7th Cir. 1999); McNely v. Ocala Star-Banner Corp., 99 F.3d

1068, 1076 (11th Cir. 1996); Katz v. City Metal Co., Inc., 87 F.3d 26, 33 (1st Cir. 1996); Pedigo

v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). But see Hedrick v. W. Reserve Care

Sys., 355 F.3d 444, 454 (6th Cir. 2004) (holding that, despite contrary law in other circuits, in

the Sixth Circuit an ADA plaintiff must show that her disability was the “sole reason” for the

employer’s adverse employment action).

31 99 F.3d at 1073–76.

9

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 StarBanner Corp., thoroughly analyzed this question. The McNely court concluded

after analyzing the statutory language, the legislative history, and the Supreme

Court precedentinterpreting “because of”inTitle VII cases,thatthe “sole cause”

standard was misplaced in ADA cases.31 The court thought it inappropriate to

import the “solely” restriction from § 504 of the Rehabilitation Act, when a plain

reading of the “because of” causation language in the ADA “conveys the idea of
No. 06-10657

32 Id. at 1073–74, 1077.

33 Head, 413 F.3d at 1065; Foster, 168 F.3d at 1033; McNely, 99 F.3d at 1068. In

McNely, the Eleventh Circuit said that the ADA “imposes liability whenever the prohibited

motivation [for the adverse employment action] makes the difference in the employer’s

decision, i.e., when it is a ‘but-for’ cause.” 99 F.3d at 1068.

34 304 F.3d at 503-04.

35 In reaching this conclusion we express no opinion on who bears the burden of proof

attrial, including whether the “modified McDonnell-Douglas scheme” adopted by this courtfor

ADEA cases applies in ADA actions. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312

(5th Cir. 2004). Nor do we decide whether certain amendments to Title VII in the Civil Rights

Act of 1991, 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B), are applicable to cases brought under

the ADA. These issues were not presented in the instant appeal, and we leave them for

another day.

10

a factor that made a difference in the outcome,” not one that was necessarily the

“sole cause” of the outcome.32

Under a plain reading of the statute, and in accord with the position of

other circuits, we conclude that the ADA does not require “sole causation.” The

proper causation standard under the ADA is a “motivating factor” test. This is

consistent with the law of other circuits,33 as well as the causation standard

articulated by the Fifth Circuit in Soledad v. United States Department of

Treasury. We confirm today that the Soledad rule is controlling here: “Under

the ADA, ‘discrimination need not be the sole reason for the adverse employment

decision, [but] must actually play a role in the employer’s decision making

process and have a determinative influence on the outcome.’”34 This rule governs

cases under Section 501 of the Rehabilitation Act as well. This causation

standard was not used in the jury charge below, therefore we must reverse.35

III. The Exclusion of Evidence
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Pinkerton sought to admit into evidence multiple documents and

testimony concerning investigative reports ofthe Dallas OCR office. The district

court admitted portions of Mark Levesque’s testimony about his investigation,

including his personal observations and what Levesque was told about

retaliatory practices, but excluded other portions of his testimony and parts of

his written notes and summaries.

It is not necessary to rule on the admissibility of the Levesque documents

and testimony because the same issues may not be presented on retrial and the

issues were not fully developed in the appellate briefs.

IV. Conclusion

The judgment is REVERSED and the cause is REMANDED.