FILED

United States Court of Appeals

Tenth Circuit

January 16, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SCOT HOLLONBECK; JOSE

ANTONIO INIGUEZ; JACOB

WALTER JUNG HO HEILVEIL; VIE

SPORTS MARKETING, INC., a

Georgia corporation,

Plaintiffs - Appellants,

v.

UNITED STATES OLYMPIC

COMMITTEE, a federally-chartered

corporation; U.S. PARALYMPICS,

INC., f/k/a United States Paralympic

Corporation, a Colorado non-profit

corporation,

Defendants - Appellees,

 and

MARK E. SHEPHERD, SR.,

 Plaintiff - Appellant,

v. 

UNITED STATES OLYMPIC

COMMITTEE, a corporation,

 Defendant - Appellee.

---------------------------

DISABILITY RIGHTS EDUCATION

No. 07-1053 and 07-1056
AND DEFENSE FUND; DISABILITY

RIGHTS ADVOCATES; NATIONAL

FEDERATION OF THE BLIND;

LEGAL CENTER FOR PEOPLE

WITH DISABILITIES; RAFAEL

IBARRA; KARIN KORB; TATYANA

McFADDEN,

 Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. Nos. 03-cv-1364-JLK and 99-CV-02077-JLK)

Amy Robertson of Fox & Robertson, P.C., Denver, Colorado (and Timothy P. Fox

of Fox & Robertson, P.C., Denver, Colorado; Kevin W. Williams, Legal Program

Director of Colorado Cross Disability Coalition, Denver, Colorado, with her on

the briefs), for Plaintiffs - Appellants.

Christopher Handman of Hogan & Hartson, L.L.P., Washington, D.C. (Jeffrey S.

George, John W. Cook, and Anne H. Turner of Hogan & Hartson, L.L.P.,

Colorado Springs, Colorado, with him on the brief), for Defendants - Appellees.

Samuel R. Bagenstos, St. Louis, Missouri, filed a brief for Amici Curiae.

Before KELLY, HOLLOWAY, and HOLMES, Circuit Judges.

KELLY, Circuit Judge.

In these consolidated appeals, paralympic athletes appeal the district

court’s dismissal of their claims under § 504 of the Rehabilitation Act against the

United States Olympic Committee (“USOC”). In 07-1053, Plaintiffs-Appellants

Scot Hollonbeck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil appeal
-3-

the district court’s grant of a motion to dismiss in favor of the USOC on their §

504 claim. In 07-1056, Plaintiff Mark Shepherd appeals the district court’s grant

of summary judgment in favor of the USOC on his § 504 claim. As both cases

raise identical legal issues, we consolidated the cases for briefing and submission. 

Prior to our disposition, Mr. Shepherd and the USOC stipulated to a dismissal of

the appeal in 07-1056 under Fed. R. App. P. 42(b). Our jurisdiction arises under

28 U.S.C. § 1291, and we affirm.

Background

The USOC is a federally-chartered corporation that has exclusive

jurisdiction over U.S. participation in three athletic competitions: the Olympic

Games, the Paralympic Games, and the Pan American Games. 36 U.S.C. §§

220502, 220503(3)(A). Under the Ted Stevens Olympic and Amateur Sports Act

(“ASA”) as amended, id. §§ 220501–220529, Congress has charged the USOC to

“obtain for the United States, . . . the most competent amateur representation

possible in each event of the Olympic Games, the Paralympic Games, and the

Pan-American Games.” Id. § 220503(4). 

The first Paralympic Games were held in 1960. Now the Paralympic

Games immediately follow the Olympic Games in the same host city and involve

between 1,100 and 4,000 athletes. Plaintiffs are all elite paralympic athletes who

have competed in at least one Paralympic Games. Plaintiffs are wheelchair racing
-4-

paralympians. U.S. Paralympians have been very successful compared to their

Olympic counterparts with 42% of the Paralympians winning medals in 2000 and

75% winning medals in 2002 (compared to 16% of Olympians winning medals in

both 2000 and 2002). Aplt. App. at 241.

To achieve its mission under the ASA, the USOC provides Athlete Support

Programs which include various types of grants, tuition assistance, and health

insurance benefits. The criterion that the USOC uses to distribute the benefits

under its Resource Allocation Policy is that the applicant must be an athlete who

is “eligible to represent the United States and who intend[s] to compete, if

selected, in the next Olympic or Pan American Games.” Id. at 110. 

Plaintiffs challenge the USOC’s policy of providing Athlete Support

Programs only to Olympic team members, to the exclusion of Paralympic team

members, as violating § 504 of the Rehabilitation Act. The district court

consolidated two separate cases for oral argument which the parties and the court

agreed raise identical legal issues under Title III of the Americans with

Disabilities Act (“ADA”), and § 504 of the Rehabilitation Act: Hollonbeck v.

USOC, No. 07-1053, on a motion to dismiss; and Shephard v. USOC, No. 07-

1056, on cross-motions for summary judgment. The district court ruled for the

USOC on the Title III and § 504 claims in both cases and entered final judgment

pursuant to Fed. R. Civ. P. 54(b) on those claims. Prior to our disposition, Mr.

Shepherd and the USOC stipulated to the dismissal of the appeal in 07-1056
-5-

pursuant to Fed. R. App. P. 42(b). Plaintiffs Hollonbeck, Iniguez, and Heilveil

only appeal the district court’s dismissal of their § 504 claims.

On appeal, Plaintiffs argue that (1) the relevant universe for analysis should

be all amateur athletes over which the USOC has responsibility; (2) they are

“otherwise qualified” for the Athlete Support Programs; (3) the USOC’s policy

discriminates against them; and (4) the USOC’s policy has the effect of screening

out amateur athletes with disabilities.

Discussion

We review the grant of a motion for summary judgment de novo, applying

the same standard as the district court. Timmerman v. U.S. Bank, N.A., 483 F.3d

1106, 1112–13 (10th Cir. 2007). Summary judgment is appropriate if “there is no

genuine issue as to any material fact and . . . the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). We review the grant of a Rule 12(b)(6)

motion to dismiss de novo as well, considering whether the complaint contains

“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic

Corp. v. Twombly, --- U.S. ---, 127 S. Ct. 1955, 1974 (2007). All facts alleged in

the Hollonbeck complaint are assumed to be true in reviewing the motion to

dismiss. The parties stipulated to a set of facts in Shepherd for the purpose of the

cross-motions for summary judgment. Aplee. Br. at 5 n.1. Because the facts are

undisputed, we consider whether Plaintiffs state a claim or whether the USOC is
-6-

entitled to judgment as a matter of law.

Section 504 of the Rehabilitation Act states: “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 under any program or activity receiving Federal financial

assistance . . . .” 29 U.S.C. § 794(a). A prima facie case under § 504 consists of

proof that (1) plaintiff is handicapped under the Act; (2) he is “otherwise

qualified” to participate in the program; (3) the program receives federal financial

assistance; and (4) the program discriminates against plaintiff. Powers v. MJB

Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999). 

Plaintiffs first argue that the relevant universe for analysis is all amateur

athletes over which the USOC has responsibility, and the district court erred in

restricting its discrimination analysis to the Olympics. Plaintiffs argue that the

ASA’s use of the term “amateur athlete” and § 504’s definition of “program or

activity,” in light of the history of the definition and precedent applying Title IX,

compel an analysis of the USOC programs for Olympic, Pan American, and

Paralympic athletes as a whole. Thus, Plaintiffs argue that we should compare

the USOC’s treatment of all amateur athletes, no matter the competition in which

they compete.

The ASA defines “amateur athlete” to be “an athlete who meets the

eligibility standards established by the national governing body or paralympic
-7-

sports organization for the sport in which the athlete competes.” 36 U.S.C. §

220501(b)(1). In 1998, the ASA was amended to give the USOC jurisdiction and

responsibility over United States participation in the Paralympic Games in

addition to the Olympic and Pan American Games. See 36 U.S.C. § 220503; S.

Rep. 105-325 (1998). However, the ASA as amended does not direct the USOC’s

activities in any detail with respect to Olympic or Paralympic athletes other than

requiring it to “obtain . . . the most competent amateur representation possible in

each event” of the three competitions. 36 U.S.C. § 220503(4). The mere use of

the term “amateur athlete” in the statute does not enlarge the relevant universe to

include all athletes under the USOC’s purview.

The cases that Plaintiffs rely upon also do not support analyzing the

USOC’s three programs as a whole. First, Plaintiffs rely on Klinger v.

Department of Corrections, where women prisoners sued the Nebraska

Department of Corrections under Title IX for failing to provide equal educational

opportunities for male and female prisoners. 107 F.3d 609, 611 (8th Cir. 1997). 

The prisoners compared the educational opportunities available at their facility

with the opportunities available at one specific male facility. Id. at 612. The

court rejected the comparison holding that Title IX requires comparison of

opportunities for male and female prisoners within the entire prison system taking

into account the objective differences between the two populations and other

relevant penological and security considerations. Id. at 615–16. 
1

 In Grove City College v. Bell, the Supreme Court held that receipt of

federal funds by a college’s financial aid office did not trigger institution-wide

Title IX coverage because the financial aid office was the “program or activity

receiving Federal financial assistance.” 465 U.S. 555, 570–72 (1984) (quoting 20

U.S.C. § 1681(a)). The Civil Rights Restoration Act of 1987, Pub. L. No. 100-

259, 102 Stat. 28, abrogated the Supreme Court’s holding in Bell and broadened

the Court’s narrow definition of “program or activity” to expand the application

of Title IX, the Rehabilitation Act, Title VI, and the Age Discrimination Act to an

entire institution if any part of the institution receives federal funds. There is no

dispute that the Rehabilitation Act applies to all of the USOC’s programs, so this

analysis is inapposite here.

-8-

Plaintiffs’ reliance on Klinger to alter § 504’s definition of “program or

activity” is misplaced.1

 The case only holds that, under Title IX, the comparison

between only the female facility and one specific male facility is not meaningful. 

See id. 615–16. A meaningful comparison requires viewing the jails in the

context of the security, penological, and size differences among the various

facilities. This holding does not support Plaintiffs’ theory, and the reasoning in

Klinger contradicts Plaintiffs’ argument. The court noted that differences in

programs between jails are permissible when considering the different

circumstances in each jail. See id. at 616. Thus, the case’s reasoning suggests

that the USOC’s three programs should only be compared considering the

significant distinctions between each program in purpose, scope, success, and all

other relevant differences. 

Plaintiffs also rely on two ADA cases to suggest an analysis of the USOC

as a whole: Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004), and Concerned Parents

to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D.
-9-

Fla. 1994). Both cases are readily distinguishable because they involve the

consolidation of services for the disabled at a single facility and then cancellation

of those services. See Rodde, 357 F.3d at 998 (noting these similarities in two

cases). These cases did not involve separate programs with separate eligibility

requirements—they involved the provision of health and recreation services and

the cancellation of those services for the disabled on a county-wide basis. Cf.

Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996) (concluding that a

Hawaii general assistance program is functionally two programs—one for needy

families and one for the needy disabled—and holding that “[t]he ADA does not

require equivalent benefits in different programs”). Nothing in the analysis of

these two cases supports a conclusion that the USOC’s programs should be

analyzed as a whole. 

The additional Title IX precedent cited by Plaintiffs is not applicable here

because it is based on a regulatory framework unique to the Title IX context. 

Title IX regulations recognize that separation based on gender may be necessary

thus requiring an institution-wide analysis to determine whether a Title IX

violation has occurred. See e.g., 34 C.F.R. § 106.41(b), (c); Roberts v. Colo.

State Bd. of Agric., 998 F.2d 824, 829–32 (10th Cir. 1993). Therefore, the

relevant universe for analysis under § 504 is the individual programs under the

USOC’s umbrella. Plaintiffs must show that they are otherwise qualified for the

Athlete Support Programs and that the program discriminates against them.
-10-

Second, Plaintiffs argue that they are “otherwise qualified” for the Athlete

Support Programs because they are amateur athletes under the ASA. A plaintiff

is “otherwise qualified” under the Rehabilitation Act if he “is able to meet all of a

program’s requirements in spite of his [disability].” Se. Cmty. Coll. v. Davis, 442

U.S. 397, 406 (1979). Normally, if a plaintiff is unable to meet a program’s

requirements, a court must consider whether reasonable modifications or

accommodations may be made that do not fundamentally alter the program. See

Sch. Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 288 n.17 (1987);

Alexander v. Choate, 469 U.S. 287, 300 (1985). Plaintiffs’ argument requires us

to accept a premise that we already rejected, namely, that the relevant universe

for analysis is all amateur athletes. In the alternative, Plaintiffs contend that the

requirement of being on the Olympic team is not an “essential eligibility

requirement” to qualify for the Athlete Support Programs. 28 C.F.R. § 41.32(b). 

Plaintiffs argue that the USOC could open the benefits to Paralympic athletes and

that doing so would further the USOC’s program as a whole. However, § 504 is

not the vehicle to compel discretionary acts of administrators absent

discrimination. 

Third, Plaintiffs argue that the USOC’s policy of excluding Paralympic

athletes from Athlete Support Programs is both facially discriminatory and

discriminatory by proxy. Even if Plaintiffs were “otherwise qualified” for the

benefits, the USOC’s policy does not discriminate against Plaintiffs by reason of
-11-

their disability. First, Plaintiffs err in contending that the eligibility requirements

for the Athlete Support Programs are intentionally discriminatory. The criterion

that the USOC uses to distribute the benefits under its Resource Allocation Policy

is that the athlete must be “eligible to represent the United States and . . . intend

to compete, if selected, in the next Olympic or Pan American Games.” The

policy, on its face, clearly does not contain an explicit requirement of not being

disabled. Cf. Bangerter v. Orem City Corp., 46 F.3d 1491, 1500 (10th Cir. 1995)

(considering a city zoning ordinance for group homes for the disabled that

“facially single[d] out the handicapped and appl[ied] different rules to them”).

Plaintiffs also contend that the program discriminates against Paralympic

athletes by proxy as the policy specifically excludes Paralympic athletes and the

term “Paralympic athletes” is a proxy for amateur athletes with disabilities. The

designation of “Olympic athlete” as a requirement for Athlete Support Programs

is not a proxy for non-disabled athletes because there is no fit between being an

Olympic athlete and not being disabled. The requirement of being an Olympic

athlete is not “directed at an effect or manifestation of a handicap.” McWright v.

Alexander, 982 F.2d 222, 228 (7th Cir. 1992). Thus, the requirement to be an

Olympic athlete to be eligible for the Athlete Support Programs is not

discriminatory to Paralympic athletes “by reason of [their] disability.” See 29
2

 Plaintiffs also refer in their briefs to a “separate benefit” regulation in 28

C.F.R. § 41.51(b)(1)(iv), and note that it is irrelevant to our analysis. We agree

that it is irrelevant to our analysis for a different reason—Plaintiffs are not

“qualified” as required by the regulation.

-12-

U.S.C. § 794(a).2 

Fourth, Plaintiffs argue that the USOC’s policy has the effect of screening

out amateur athletes with disabilities. Plaintiffs’ argument appears to allege that

the USOC’s policy impermissibly creates a disparate impact on disabled athletes,

thus violating § 504. The Supreme Court has held that disparate impact, by itself,

does not state a prima facie case under § 504. Choate, 469 U.S. at 299. Rather,

actionable disparate impact requires analysis of whether the individual is

otherwise qualified and whether reasonable accommodations may provide

meaningful access. See id. at 299–301. Plaintiffs raise no additional argument

here that we do not address above.

The dissent concludes that Plaintiffs are “otherwise qualified” for the

Athlete Support Program because § 504 defines “program or activity” to include

“all of the operations of” a covered entity. 29 U.S.C. § 794(b). However,

Congress included the phrase “all of the operations of” a covered entity in § 504

to ensure that § 504 applies to an institution as a whole once any part of the

institution receives federal funds. See supra note 2; see also DeVargas v. Mason

& Hanger-Silas Mason Co., 911 F.2d 1377, 1384–85 (10th Cir. 1990). The phrase

does not create a parity requirement across an institution’s individual programs
-13-

(unlike the requirements under the specialized Title IX regulations). Further, the

dissent’s reading of the statute would change the eligibility requirements set by

the USOC—being an Olympic team member—altering the nature of the program. 

Courts are not free to rewrite eligibility requirements but must analyze whether a

plaintiff is “otherwise qualified” against the requirements set by the covered

entity. See Davis, 442 U.S. at 413–14 (rejecting a challenge to a nursing program

because the requested modifications would have fundamentally altered the

purposes and eligibility requirements of the program set by the college). Courts

must ask whether reasonable modifications or accommodations may be made that

do not fundamentally alter the program, see Choate, 469 U.S. at 300, or whether

the requirement is not an “essential eligibility requirement” to qualify for the

benefits or program, 28 C.F.R. § 41.32(b). 

The dissent also argues that only extending the benefits at issue to Olympic

athletes “has a discriminatory effect” against Paralympic athletes. However,

disparate impact, by itself, does not state a prima facie case under § 504. Choate,

469 U.S. at 299. Further, our holding clearly does not permit denying benefits

on the basis of gender, as the dissent suggests, because such a classification

would be facially discriminatory. Here, the classification is facially neutral and is

not “directed at an effect or manifestation of a handicap” as required for proxy

discrimination. McWright, 982 F.2d at 228.

We sympathize with Plaintiffs’ efforts to obtain benefits similar to those
-14-

received by their Olympic counterparts. However, we cannot modify the

Rehabilitation Act to reach a result in their favor absent statutory or regulatory

authority to import, wholesale, Title IX regulations and precedent into § 504. See

Choate, 469 U.S. at 293 n.7. Plaintiffs should seek a remedy with the legislative

or executive branches, not the courts. 

AFFIRMED.
Nos. 07-1053 & 1056, Hollonbeck v. U.S. Olympic Committee

HOLLOWAY, Circuit Judge, dissenting:

I respectfully dissent. Section 504 of the Rehabilitation Act provides that a

qualified individual with a disability may not, solely because of 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). What the statute forbids is exactly what has

occurred and is occurring here. This defiance of plain legislative intent is crystalclear from the congressional statement that the Paralympics are “the Olympics for

disabled amateur athletes.” S. Rep. No. 105-325 at 2, 1998 WL 604018 (1998).

The issues presented.

A prima facie case under section 504 requires proof (1) that the plaintiff

has a disability; (2) that plaintiff is otherwise qualified to participate in the

program; (3) that the program receives federal money; and (4) that the program

discriminated against the plaintiff. Powers v. MJB Acquisition Corp., 184 F.3d

1147, 1151 (10th Cir. 1999). In these appeals it is not contested that Plaintiffs

have disabilities and that the USOC receives federal money. Therefore, the

questions before us are whether the Plaintiffs are “otherwise qualified” to

participate in the program and whether the USOC discriminated against the

Plaintiffs. 
1

The district court expressed substantial doubt about whether the USOC is a

“covered entity.” That question is not before this court, however, as the USOC

has not argued that the judgment should be affirmed on the alternative ground that

it is not subject to the Act.

-2-

The plaintiffs are qualified to participate in the program.

Quite obviously, this court cannot answer the first question without

determining what “the program” is in this case. Indeed, resolution of these

appeals turns on whether the USOC is operating one “program” or separate

programs, one for the disabled and one for the able-bodied. The clear answer to

that question has been provided by Congress. Section 504 defines “program or

activity” to include “all of the operations of” the covered entity. 29 U.S.C. §

794(b).1

 Plaintiffs are qualified to participate in the program; they are recognized

as elite paralympic athletes whose competition in the Paralympic Games is,

Congress has mandated, to be promoted by the USOC. 

Thus, this case can and should be resolved by simple application of the

plain language of the statute, and this court should reverse the judgment of the

district court. The majority reaches the wrong result because its analysis goes off

the track at the outset by failing to follow the statutory definition of “program.” 

As noted by the majority, Congress specifically amended the Rehabilitation Act

and other statutes to broaden the definition of “program or activity.” Maj. op. at

8, n.2. But the majority inexplicably ignores the definition, insisting that the

definition is of no moment because it is undisputed in this appeal that the Act
2

Indeed, the majority even accuses Plaintiffs of trying to “alter” section

504’s definition of “program or activity” by discussing the reasoning of Klinger v.

Dept. of Corrections, 107 F.3d 609 (8th Cir. 1997). I fail to see how Plaintiffs

are trying to “alter” the definition. Plaintiffs rely on the legislative definition of

“program,” while the majority ignores it.

-3-

“applies to all of the USOC’s programs . . . .” Id. (emphasis added).2

This use of the plural reveals the circular nature of the majority’s analysis. 

The underlying issue (easily resolved by the plain language of the statute) is

whether, in examining the USOC’s challenged activities, we should consider the

USOC as operating a single program or several separate ones. The majority

incorrectly assumes – there is certainly no explanation for the approach – that we

are dealing with separate programs. And it is only by ignoring the statutory

definition and making this assumption of dealing with separate programs that the

majority is able to assert that the unequal treatment afforded to the Plaintiffs is

permissible.

Not only does the majority ignore the statutory definition of “program,” but

its assumption that separate programs are involved exonerates the USOC for

doing just what the Supreme Court instructs must not be done – defining the

benefit “in a way that effectively denies otherwise qualified handicapped

individuals the meaningful access to which they are entitled . . . .” Alexander v.

Choate, 469 U.S. 287, 301 (1985).

The USOC’s program discriminates against the plaintiffs.

Plaintiffs are subject to discrimination by being denied access to benefits
3

In Choate, the Court assumed without deciding that section 504 reaches

conduct that has a disparate impact on the disabled, after having noted compelling

reasons to conclude that Congress intended such an interpretation and that all the

circuits that have reached the issue had reached that conclusion. 469 U.S. at 295-

97 & n.17. In the instant appeal, the defendants do not contend otherwise.

-4-

that are provided to Olympic and Pan American Games athletes who are not

disabled. The USOC’s practice of providing health insurance and other benefits

to Olympic and Pan American Games athletes, but not Paralympic athletes,

clearly has a discriminatory effect. Section 504 prohibits not only intentional

discrimination but, I am satisfied, also the use of criteria or methods of

administration such as those involved here that have the effect of subjecting

people with disabilities to discrimination. 28 C.F.R. § 41.51(b)(3)(1). See also

Alexander v. Choate, 469 U.S. at 299.3

Denying benefits to Plaintiffs because they are athletes training for the

Paralympic Games, and not the Olympic or Pan American Games, is a proxy for

discriminating against them because of their disabilities. The majority’s assertion

that “there is no fit between being an Olympic athlete and not being disabled,”

maj. op. at 11, demonstrates the faulty aim of its analysis. Presumably the

majority would not countenance the denial of equal benefits based on gender. 

Yet, if such blatant discrimination existed, even then it could be said that there

was “no fit” between being an Olympic athlete and being male. The USOC has

shown four examples in one hundred years of disabled athletes who have

competed in the Olympics or Pan American Games. The exceptions prove the
-5-

rule: The policy of awarding benefits to athletes training for the Olympics or the

Pan American Games while excluding those training for the Paralympic Games

discriminates against the disabled. The reason that courts inquire about the “fit”

between a practice and a class of protected individuals is because the fact that a

practice does not discriminate against every member of a protected class is not

sufficient to show that members of the protected class have the meaningful access

to which they are entitled. See Lovell v. Chandler, 303 F.3d 1039, 1054 (9th Cir.

2002).

For these reasons I am compelled to respectfully but emphatically dissent.