     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                     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.
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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.”)
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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.


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                                       No. 14-40542
       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).
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                                 No. 14-40542
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.




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