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Disabled vet can’t show denial of one job, discharge from another were disability bias

By Deborah Hammonds, J.D.

A district court did not err when it granted summary judgment to an employer on a disabled veteran’s claim that he was not hired for one position and terminated from another because of his disability. In an unpublished decision, the Eleventh Circuit concluded the employee did not show pretext on his failure to hire claim and failed to establish a prima facie case for his failure to accommodate claim (Kendall v. Secretary, Department of Veterans Affairs, March 14, 2017, per curiam).

The employee, a disabled veteran who had both knees replaced, applied for a position as an engineering technician, and although he was one of two qualified candidates, he was not hired; instead, the selected candidate was a current VA employee. When the employee inquired about the hiring decision, he was offered a housekeeping position instead. After explaining he had artificial knees, he was assured he could have the position if he passed an on-site physical examination, which he did. When he told the HR official that he could not mop floors, she responded that they would find other things for him to do. On the second week of his job, the employee was asked to mop floors, which he refused because of his artificial knees.

The employee submitted a reasonable accommodation request, asking to not mop floors or for another position. He also submitted a form completed by his doctor on the work restrictions associated with his disability, including the need to avoid wet surfaces. The employee was told to go home and wait until the VA could find him another position. After twice checking on his request, the employee grew tired of waiting and filed an internal EEO complaint. During a mediation session, he was notified of his termination for failure to qualify during his trial period. The employee filed suit under the Rehabilitation Act alleging failure to hire and failure to accommodate. The district court granted the VA’s motion for summary judgment.

Failure to hire claim. Affirming the district court, the Eleventh Circuit found the employee failed to produce evidence showing that the VA’s reasons for hiring another individual for the open position—she had a stable employment history and was familiar with the facility and its people—were mere pretexts for disability discrimination.

Although the employee argued the selected candidate’s application appeared to be incomplete and did not, on its face, indicate that she was eligible for the engineering technician position, that alone did not demonstrate pretext. The court noted that two HR officials specifically noted that, based on the work experience reflected on her application, the selected candidate was qualified for the position.

Even assuming that a question existed as to whether HR should have deemed the selected candidate qualified, that did not undermine the purported non-discriminatory reasons articulated by the decisionmaker. HR officials pre-screened the applicants and sent five or six applications to the decisionmaker for his consideration. The undisputed evidence showed that once a candidate was determined to be eligible and qualified by HR, the decisionmaker was free to choose among those qualified individuals. Even assuming that the selected candidate may have been objectively ineligible for the position, that did not call into question the decisionmaker’s subjective, good-faith belief that the selected candidate was eligible and that she was the better candidate.

The employee also failed to show pretext with his argument that he was objectively more qualified because of his educational background. The selected candidate was not chosen because she was better educated and the employee could not merely question the wisdom of the decisionmaker’s reasons. Nor could he show pretext simply by arguing or showing that he was better qualified; rather, he had to show that no reasonable person could have chosen the selected candidate over him. Summary judgment was proper on the discriminatory failure to hire claim.

Failure to accommodate claim. Summary judgment was also proper on the employee’s failure to accommodate claim. The employee did not dispute that he could not mop floors, an essential function of the housekeeping position. He argued that whether mopping floors was indeed an essential function was a disputed question of fact. However, the only evidence in the record on that question was an HR official’s testimony that the employee’s requested accommodation, which he agreed was that he be excused from mopping floors, would have removed an essential function of the job.

The employee failed to present evidence contradicting the employer’s judgment or any evidence about any of the other factors. Moreover, he admitted during the course of his deposition that “mopping floors is a basic sort of necessary task for a housekeeper.” While the employee argued that the district court should not have relied upon his testimony because he was not qualified to opine on what was or was not an essential function, the employee failed to point to any evidence that would have allowed a factfinder to draw a contrary conclusion regarding the essential functions of the housekeeping position. The employee ultimately bore the burden of establishing that he could perform the essential functions of the job, with or without reasonable accommodation, and thus was a qualified individual, and he failed to do so. Accordingly, there was no error in concluding that the employee failed to establish a prima facie case of failure to accommodate.