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


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  •      Case: 14-40542      Document: 00512822058         Page: 1    Date Filed: 10/31/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-40542                         United States Court of Appeals
    Summary Calendar                                Fifth Circuit
    FILED
    October 31, 2014
    RICHARD CAVADA, SR.,                                                       Lyle W. Cayce
    Clerk
    Plaintiff - Appellant
    v.
    JOHN M. MCHUGH, Secretary, Department of the Army,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:12-CV-362
    Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
    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
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 14-40542      Document: 00512822058        Page: 2     Date Filed: 10/31/2014
    No. 14-40542
    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 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 Cavada’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
    1 Cavada has introduced no evidence tending to show he was qualified, despite his
    NBP restriction, for the equipment cleaner position. The Agency conducted a formal analysis
    of Cavada’s job functions and determined that accommodation was impossible. See 42 U.S.C.
    § 12111 (“consideration shall be given to the employer's judgment as to what functions of a
    job are essential”).
    2 Counsel for Appellant referred to this as a “typo” in the hearing on the motion to
    dismiss the first amended complaint.
    2
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    No. 14-40542
    twice the district court granted leave to amend. Cavada has not pursued his
    retaliation claims. The Agency moved for summary judgment on Cavada’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
    (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 existence of other
    positions at CCAD for which he claims he was qualified. Pertinent here, the
    3 Much of the analysis below referred to the ADA. The district court correctly noted
    that in this Circuit the substantive protections of the Rehabilitation Act and the ADA are the
    same. Bennett-Nelson v. Louisiana Bd. of Regents, 
    431 F.3d 448
    , 454 (5th Cir. 2005) (citing
    Pace v. Bogalusa City Sch. Bd., 
    403 F.3d 272
    , 287 (5th Cir. 2005)); see also Hainze v.
    Richards, 
    207 F.3d 795
    , 799 (5th Cir. 2000) (“Jurisprudence interpreting either section is
    applicable to both.”)
    3
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    No. 14-40542
    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 (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.
    4
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    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 that he was qualified for
    and could, with reasonable accommodations, perform.” Jenkins v. Cleco Power,
    LLC, 
    487 F.3d 309
    , 315 (5th Cir. 2007) (emphasis added).                      Moreover, an
    employer is not required to create a new position for a disabled employee.
    Foreman v. Babcock & Wilcox Co., 
    117 F.3d 800
    , 810 (5th Cir. 1997) (“For the
    accommodation of a reassignment to be reasonable, it is clear that a position
    must first exist and be vacant.”). Summary judgment is proper for this claim.
    As to the second category of positions, the district court held that Cavada
    had failed to offer competent evidence that he was qualified for these positions.
    We agree. Cavada challenges here the sufficiency of the record evidence on
    which the district court relied; his challenge is not well-taken. For most of his
    challenges, he offers no reason why the evidence should be discredited. He
    criticizes the Agency for filing some of its evidence for the first time only in its
    reply to his response to the motion for summary judgment. But it was Cavada
    who failed to raise the other four positions until his response; the Agency would
    have had no reason to introduce this evidence before then. 4 Cavada also argues
    that the Agency’s medical records are inadmissible because provided by lay
    persons. This argument also fails. These records are evidence of the Agency’s
    4The Agency objected to this novelty in its reply in support of its motion for summary
    judgment, ROA.325-26, but the district court ruled on the merits of the claim on the record
    as it was. We do the same but note that an issue raised for first time at trial is not tried by
    consent when the opposing party “vigorously object[s]”. See Moody v. FMC Corp., 
    995 F.2d 63
    (5th Cir. 1993).
    5
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    nondiscriminatory reasons for not transferring Cavada to one of the vacant
    positions. Their veracity as medical diagnoses is not at issue.
    The central weakness of Cavada’s evidence is his reliance on his own
    declaration.   In response to the district court’s determination that his
    declaration was conclusory, Cavada says only that it “could not be more
    detailed.” But “detailed” is not the opposite of “conclusory”: a litigant cannot
    survive summary judgment on the strength of conclusory averments alone,
    however detailed. See Little v. Liquid Air Corp., 
    37 F.3d 1069
    , 1075 (5th Cir.
    1994). In the face of the Agency’s actual documentary evidence, Cavada’s own
    testimony – no matter how detailed – is here insufficient to create a genuine
    issue of fact. Describing his declaration as “uncontroverted” is also unavailing.
    The Agency does controvert it – with its own actual evidence demonstrating its
    determination that Cavada was not qualified for the positions.
    Cavada has adduced no evidence that the Agency acted with
    discriminatory intent or that a reasonable accommodation existed. There is no
    issue of material fact as to the existence of a funded parts controller position –
    there is only Cavada’s opinion against the Agency’s evidence. Cavada has not
    carried his burden. The district court’s order is AFFIRMED.
    6