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5th Circuit: Employer Faces Trial on Disability Claim

By Chris Arbery  11/2/2007
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The 5th U.S. Circuit Court of Appeals affirmed summary judgment on an Army Corps of Engineers appraiser’s claims of discrimination under the Americans with Disabilities Act (ADA) and Title VII and retaliation claims, but let his Rehabilitation Act claim go forward.

In 2001, Richard Washburn, an appraiser with the U.S. Army Corps of Engineers (ACE) filed a gender discrimination claim under Title VII against his employer. While the gender discrimination suit was pending, ACE appointed Washburn to serve as a supervisory appraiser from June 2002 until October 2002. In January 2003, ACE appointed Washburn to a supervisory appraiser position that was posted as a temporary promotion not to exceed a year.

In 2002 or 2003, Washburn underwent surgery for jaw cancer and received permission to work from home. He received excellent performance evaluations as he continued to work from home as a temporary supervisory appraiser. However, when Washburn’s temporary promotion ended in January 2004, ACE appointed another individual, Randy Richardson, to the position of acting supervisory appraiser. Prior to the appointment, Richardson was a planner, not an appraiser. Neither Washburn nor Richardson was certified as a general appraiser.

Washburn alleged that his jaw cancer left him with a disability and that ACE discriminated against him in violation of the ADA, Title VII and the Rehabilitation Act of 1973 (a federal statute prohibiting disability discrimination by federal agencies, contractors and grant recipients) by not promoting him to the permanent position of supervisory appraiser. The district court granted summary judgment in favor of ACE on all Washburn’s claims.

The 5th Circuit affirmed summary judgment as to Washburn’s ADA and Title VII claims. The ADA specifically exempts federal government employers, and Title VII does not cover disability discrimination. As to his Title VII retaliation claim, the court held that Washburn failed to prove a causal link between his filing of the first Title VII gender discrimination suit in 2001 and the failure to promote him permanently to the supervisory appraiser in 2004.

The appeals court reversed the district court’s grant of summary judgment on Washburn’s claim under the Rehabilitation Act, however. ACE argued that Washburn failed to prove that he was “otherwise qualified” for the supervisory appraiser position because he was not certified as a general appraiser. To establish a claim under the Rehabilitation Act against a federal agency or contractor, like the ADA for private employers, a plaintiff must establish that he or she:

    • Is an individual with a disability.

    • Is otherwise qualified for the position.

    • Was discriminated against solely by reason of his disability.

The court found a genuine dispute of material fact regarding whether Washburn was qualified. To establish the certification qualification, the ACE relied on testimony of the ACE chief of real estate that the permanent position of supervisory appraiser required appraiser certification. Washburn countered that the job posting for temporary supervisory appraiser, which was awarded to him in January 2003, did not include a certification requirement. Washburn performed all the duties of a supervisory appraiser and received excellent performance evaluations during his temporary assignment. Moreover, Richardson, who was appointed acting supervisory appraiser in 2004, also was not certified.

The court noted that neither party explained whether the requirements for the temporary or acting positions were different than for the permanent position. The court held that there was a genuine issue of material fact that precluded summary judgment and allowed the Rehabilitation Act claim to go forward to trial.

Washburn v. Harvey , 5th Cir., No. 06-41232 (Oct. 10, 2007).

Professional Pointer: This case demonstrates the importance of accurate, regularly updated job descriptions under the ADA and the Rehabilitation Act. An employer may avoid claims by carefully defining both the actual requirements and the essential functions of a job. An employer with a well-documented job description is in a much better position to defend a claim of disability discrimination. Moreover, a good job description will help an employer clearly explain the job qualifications and essential functions to an applicant and potentially avoid litigation altogether.

Chris Arbery is an attorney on the Labor & Employment Team at Hunton & Williams LLP in Atlanta.

Related Resource:

SHRM ADA Toolkit

Quick Link:

SHRM Online Workplace Law Focus Area

Editor’s Note: This article should not be construed as legal advice.

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