X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Richard P. Washburn was employed as an appraiser in the real estate division of the U.S. Army Corps of Engineers (USACE) from 1991 until he retired in 2005. Washburn could not review appraisals conducted by other USACE appraisers, because he did not possess a general state certification as a general appraiser. In 2001, Washburn filed his first Title VII suit against USACE alleging, inter alia, that he was discriminated against on the basis of his gender. The district court granted summary judgment in favor of USACE, and the 5th U.S. Circuit Court of Appeals dismissed Washburn’s appeal for want of prosecution. The supervisory appraiser of the real estate division of USACE retired in 2002 while Washburn’s first Title VII case was pending. USACE appointed Washburn temporarily to serve as supervisory appraiser from June 2002 until October 2002. USACE then posted a job announcement for the Supervisory Appraiser position; the announcement described the position as a “Temporary Promotion Not to Exceed 1 Year.” USACE appointed Washburn to the temporary supervisory appraiser position in January 2003. In 2002 or 2003, Washburn underwent surgery for jaw cancer. Following his surgery, Washburn requested permission to work from home to reduce the risk of post-surgical infection. USACE granted Washburn’s request. While working from home, Washburn continued to serve as temporary supervisory appraiser and received excellent performance ratings. Washburn’s one-year appointment as temporary supervisory appraiser ended in January 2004. USACE then appointed Randy Richardson to the position of acting supervisory appraiser. Richardson was a planner, not an appraiser, and therefore did not possess a general state certification as a general appraiser. Washburn continued to work from home as a staff appraiser until he retired. Less than four months before he retired, Washburn filed this case against USACE. Washburn alleges that his jaw cancer rendered him disabled and that USACE did not promote him to the permanent position of supervisory appraiser in January 2004 because of his disability. Washburn also alleges that USACE denied him the promotion to the permanent position of supervisory appraiser in retaliation for his first Title VII suit. The district court granted summary judgment in favor of USACE. Washburn appealed. HOLDING:Affirmed in part, reversed and remanded in part. Washburn’s disability claim, the court stated, fails because USACE is a federal government employer, which the Americans with Disabilities Act specifically excepts from its purview. Washburn’s new Title VII claim failed, the court also stated, because Title VII does not proscribe discrimination on the basis of disability. The court then addressed whether the district court correctly granted summary judgment in favor of the USACE on Washburn’s discrimination claims under the Rehabilitation Act, 29 U.S.C. � 701 et seq. To establish a prima facie case of discrimination under the Rehabilitation Act, the court stated that a plaintiff must prove: 1. he is a disabled individual; 2. who is “otherwise qualified” for the position sought; 3. who worked for a “program or activity receiving Federal financial assistance”; and 4. that he was discriminated against “solely by reason of her or his disability.” USACE, the court stated, moved for summary judgment on the ground that Washburn could not establish the second element of his prima facie case. USACE argued that Washburn was not qualified for the position of supervisory appraiser, because he was not a state-certified appraiser. The district court agreed with USACE and granted summary judgment on Washburn’s Rehabilitation Act claim on that basis alone. The 5th Circuit, however, disagreed. There is a genuine dispute of material fact, the court stated, concerning whether Washburn possessed the necessary qualifications for the supervisory appraiser position and thus whether he established the second element of his prima facie case. The original job posting for the temporary supervisory appraiser position does not list general state certification as a qualification for the position. Moreover, the court noted that the acting supervisory appraiser does not hold a general state certification. As further evidence of his qualifications, Washburn submitted his own declaration stating that he supervised other appraisers in 2003 while holding the temporary supervisory appraiser position. Washburn also submitted performance evaluations from the period during which he served as Supervisory Appraiser, which rated his performance as excellent. Taken together, Harrison’s declaration, Washburn’s declaration and Washburn’s performance evaluations created a genuine issue of material fact concerning whether Washburn was qualified to be a supervisory appraiser. Thus, the court found that Washburn established the second element of his prima facie case. Accordingly, the court reversed the district court’s grant of summary judgment on Washburn’s Rehabilitation Act claim. Regarding his retaliation claim, the court found that Washburn presented neither direct nor circumstantial evidence sufficient to establish a causal connection between his first Title VII suit and the denial of a promotion to supervisory appraiser. Accordingly, the court concluded that Washburn did not satisfy his prima facie burden to show retaliation. OPINION: Garza, J.; Higginbotham, Wiener and Garza, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.