Richard Cavada, Sr. v. John McHugh

589 F. App'x 717
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 31, 2014
Docket14-40542
StatusUnpublished
Cited by4 cases

This text of 589 F. App'x 717 (Richard Cavada, Sr. v. John McHugh) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richard Cavada, Sr. v. John McHugh, 589 F. App'x 717 (5th Cir. 2014).

Opinion

PER CURIAM: *

This is an appeal from summary judgment for the federal agency defendant in a disability discrimination action brought by Richard Cavada. For the following reasons, we affirm.

Appellant Richard Cavada began working as an equipment cleaner for the Department of the Army (“the Agency”) in August 2003. He was assigned to the Engine Cleaning shop at the Corpus Christi Army Depot (“CCAD”). Because of his exposure while working at CCAD, Cavada developed a sensitivity to n-propyl bromide (“NPB”), a caustic chemical used as a solvent. Since 2008, Cavada has been almost continuously medically restricted from working near NBP. In an attempt to accommodate this condition, the Agency temporarily assigned Cavada to other work sites — including one in a different division — while the Agency attempted to locate another permanent job. Cavada’s *718 Division Chief explained that “[t]his was done to keep [Cavada] gainfully employed while placement efforts were taking place.”

The job search effort was temporarily halted when Cavada suffered an on the job injury, and resumed after he recovered from a subsequent knee surgery. Cavada then formally applied for the Medical Placement Program, allowing the Agency to attempt to place him in a position for which he was qualified. His supervisor prepared an Essential Function Analysis so that the Agency could determine whether Cavada could perform his duties with reasonable accommodation. The Agency determined that he could not. 1

Nevertheless, the Agency referred Ca-vada’s file to the Medical Placement Program (“MPP”). MPP monitored available positions for at least ninety days. Cavada refused to be considered for jobs outside CCAD, acknowledging that this would dampen his relocation prospects. No qualifying positions became available and the Agency removed Cavada on June 18, 2012.

After pursuing internal and MSPB appeals, Cavada sued on November 27, 2012, alleging gender discrimination 2 and federal and state retaliation claims. Twice the Agency moved to dismiss for failure to state a claim and twice the district court granted leave to amend. Cavada has not pursued his retaliation claims. The Agency moved for summary judgment on Cava-da’s sole remaining cause of action — disability discrimination — the district court granted it.

We review de novo the district court’s grant of summary judgment, applying the same standards as the district court. Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 275 (5th Cir.2014). Summary judgment is appropriate “where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Id. at 275-76 (citing Fed.R.Civ.P. 56(a)). Conversely, summary judgment is inappropriate if a reasonable jury could find for the nonmovant. Id. at 276.

Although the Court will resolve inferences in favor of the nonmovant, a party seeking to avoid summary judgment “must go beyond the pleadings and present specific facts indicating a genuine issue” of fact. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In addition, this court can affirm summary judgment “on any ground supported by the record” and raised by the parties, “even if it is different from that relied on by the district court.” Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 258 (5th Cir.2001).

Cavada’s second amended complaint asserts disability discrimination under the Rehabilitation Act, which is the exclusive remedy for federal employees. 3 Cavada’s argument depends on the putative exis *719 tence of other positions at CCAD for which he claims he was qualified. Pertinent here, the Rehabilitation Act requires him to prove that Appellee discriminated against him “solely by reason of ... his disability,” 29 U.S.C. § 794(a); Hileman v. City of Dallas, 115 F.3d 352, 353 (5th Cir.1997).

Appellant adduced no direct evidence of discrimination. Therefore, the summary judgment standard is here superimposed on the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). A plaintiff relying on circumstantial evidence must marshal competent summary judgment evidence to present a prima facie case of discrimination. If he can do so, the burden shifts to the employer to produce nondiscriminatory reasons for its actions, and the plaintiff must then create a genuine issue of material fact that those reasons are merely pretextual. Id.

Cavada argues that he should have been permanently reassigned to one of five different positions at CCAD. The proposed positions fall into two categories: 1) the parts controller position to which he had been temporarily assigned and 2) four other positions for which the Agency considered him before ultimately finding that he was not qualified for any of them.

The Agency has consistently maintained that there was no vacant and permanent parts controller position. Appellant counters in his brief that nine other employees worked in that shop, that there was and is “plenty of work” in the shop, that he was not informed the position was temporary until he was removed, and that he knows two other employees who were hired after he was removed. He offers no evidence for any of these reasons beyond his declaration. Appellant does not possess the knowledge or expertise to assess the Army’s staffing requirements, nor is he entitled to notice of the position’s permanence. Further, even if we were to accept these facts as true, they are irrelevant to the existence of a funded parts controller position.

The district court found that Cavada had produced competent testimony to establish a prima facie case of discrimination with respect to the parts controller position but that its nonexistence was a legitimate nondiscriminatory reason for the Agency action. Regardless whether the fact undermines Appellant’s prima facie case or whether it is properly considered under the second step of the McDonnell Douglas framework, Appellant “bears the burden of proving that an available position exists

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Cite This Page — Counsel Stack

Bluebook (online)
589 F. App'x 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-cavada-sr-v-john-mchugh-ca5-2014.