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Washburn v. Harvey

Fifth Circuit Court of Appeals
No. 06-41232, 2007 WL 2936307
October 10, 2007

Keywords:  employment, otherwise qualified

Facts of the Case

Plaintiff Richard P. Washburn was employed as an appraiser by the United States Army Corps of Engineers (USACE) from 1991 to 2005. In 2002, the Supervisory Appraiser retired and the USACE appointed Mr. Washburn temporarily to fill the position from June to October of 2002. At the same time, USACE advertised a job listing for the Supervisory Appraiser position, described as temporary and not to exceed one year. In January of 2003, USACE appointed Washburn to the one-year temporary Supervisory Appraiser position. Following surgery for jaw cancer during this period, Mr. Washburn requested and received permission to continue working as the temporary Supervisory Appraiser from home.

In 2004, Mr. Washburn’s one-year appointment ended and USACE appointed Randy Richardson to a permanent Supervisory Appraiser position. Mr. Washburn continued to work from home as a staff appraiser until his retirement in 2005. Four months before retiring, he initiated this suit, alleging that USACE did not promote him permanently because of his jaw cancer. He filed claims under the ADA, Title VII of the Civil Rights Act, and the Rehabilitation Act. The federal district court dismissed Mr. Washburn’s ADA and Title VII claims as not applicable, and the Rehabilitation Act claim by concluding he was not “otherwise qualified” for the position.

Issues of the Case

  1. On appeal, the Fifth Circuit addressed whether the district court erred in dismissing Mr. Washburn’s ADA, Title VII and Rehabilitation Act claims.

Arguments & Analysis

1. The district court dismissed Mr. Washburn’s ADA claim stating the ADA specifically exempts the USACE as a federal employer. The district court dismissed the Title VII claim as it prohibits employment discrimination on the basis of a variety factors, but not on the basis of disability.

The Fifth Circuit affirmed.

2. The district court dismissed Mr. Washburn’s Rehabilitation Act claim on the grounds that he was not an “otherwise qualified” individual, because he was not a state-certified appraiser.

Mr. Washburn presented evidence that the original job posting did not list state certification as a requirement, and that his successor was not state certified. He also presented performance evaluations demonstrating his qualifications. The Fifth Circuit found that a genuine dispute of material fact exists as to whether Mr. Washburn is otherwise qualified.



Mr. Washburn’s ADA and Title VII claims were dismissed. The Fifth Circuit remanded his Rehabilitation Act claim to the district court to determine issues of fact pertaining to his prima facie case of discrimination.

Policy & Practice

Otherwise Qualified

To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must demonstrate 1) s/he is an individual with a disability, 2) who is otherwise qualified for the position being sought, 3) who applied or worked for an entity receiving Federal financial assistance, and 4) that s/he was discriminated against solely by reason of her/his disability. In demonstrating s/he is otherwise qualified, the plaintiff must show s/he is capable of performing the essential job functions “with no more than a reasonable accommodation.”



These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time. In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.