Washburn v. Harvey
No. 06-41232, 2007 WL 2936307
Fifth Circuit Court of Appeals, October 10, 2007
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 positionfrom 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 Appraise position. Following surgery for jaw cancerduring 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: 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: The district court dismissedMr. Washburn’s ADA claim statingthe 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.
Thedistrict 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.
Ruling: 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.
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 anentity 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 plaintiffmust show s/he is capable of performing the essential job functions “with no more than a reasonable accommodation.”
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Opinion:
Prepared by the legal research staff of the Burton Blatt Institute (BBI):Centers of Innovation on Disability at SyracuseUniversity ( for the DBTAC: SoutheastADACenter (Southeast DBTAC) ( This document does not provide legal advice. If you have further questions about the issues of this case that relate to you, please consult an attorney licensed in your state.