           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          March 13, 2008

                                     No. 07-50295                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


LARRY GENE WATSON,

                                                  Plaintiff–Appellant,
v.

TEXAS YOUTH COMMISSION,

                                                  Defendant–Appellee.



               Appeal from the United States District Court for the
                            Western District of Texas
                             USDC No. 6:05-CV-422


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Larry Gene Watson appeals from a grant of summary judgment in favor
of appellee Texas Youth Commission (TYC). We affirm.
                                              I
       Watson was employed as a juvenile corrections officer (JCO) at a TYC
facility, which houses underage violators of Texas penal law. In March 2003,
while supervising a group of inmates, Watson was punched in the face by one of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-50295

the inmates. Consequentially, Watson developed traumatic mydriasis and
photophobia, which cause his vision to be extremely sensitive to sunlight and
intense indoor lighting.
      Watson returned to work the day after the incident. He worked full time
and without formal complaint until December 2003 when he requested being
excused from working in bright light or sunlight and working overtime if it
meant having to work in bright light or sunlight. TYC primarily scheduled
Watson for night shifts and allowed him to wear sunglasses and a hat while on
duty. However, he was not excused from overtime.
      For four months, Waston worked in various capacities before TYC
eventually assigned Watson to a JCO position in Dorm A.             One of the
requirements of a JCO is the ability to work additional shifts that may extend
into daytime hours. Watson requested waiver or reassignment. TYC refused to
waive the overtime requirement and informed Watson that there were no other
available positions with a comparable paygrade. Watson subsequently resigned
in August 2004.
      Watson filed a charge with the Equal Employment Opportunity
Commission asserting termination because of a real or perceived disability.
Watson timely filed this lawsuit upon receipt of his right-to-sue letter alleging
discrimination under federal law and retaliation under Texas law. The district
court granted TYC’s motion for summary judgment.
      Watson timely appealed arguing that the district court improperly
evaluated evidence that he was “otherwise qualified” to perform the position of
Night Operations Director. He further argues that he presented sufficient
evidence to create a fact question on whether an adverse action was taken
against him in retaliation for filing a workers’ compensation claim.




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                                                 II
       We review a district court’s grant of summary judgment de novo, applying
the same standard as the trial court.1 Summary judgment is appropriate when,
viewing the evidence in the light most favorable to the nonmoving party, the
record reflects that no genuine issue of any material fact exists, and the moving
party is entitled to judgment as a matter of law.2 To survive a motion for
summary judgment, the nonmovant must come forward with specific facts
showing that there is a genuine issue of material fact.3
                                                 A
       Watson argues that the district court erred in granting summary judgment
because the evidence in the record showed that he had been removed from an
accommodating position that he was “otherwise qualified” to perform. However,
this argument presupposes that Watson’s condition qualifies as a disability
entitling him to an accommodation under the Rehabilitation Act.4
       To qualify as disabled under the Rehabilitation Act, one must be a person
who:
       (i) has a physical or mental impairment which substantially limits
       one or more of such person’s major life activities;
       (ii) has a record of such an impairment; or
       (iii) is regarded as having such an impairment.5




       1
           Urbano v. Continental Airlines, Inc., 138 F.3d 204, 205 (5th Cir. 1998).
       2
           Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also FED. R. CIV. P. 56(c).
       3
           Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
       4
          See Chiari v. City of League City, 920 F.2d 311, 315 (5th Cir. 1991) (noting that the
initial element of a Rehabilitation Act claim is that plaintiff is a disabled individual).
       5
           29 U.S.C. § 705(20)(B).

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The first two prongs require a showing that the individual claiming protection
is actually disabled while the third option is available without such a showing.6
      To be actually disabled under the Rehabilitation Act, one must have a
condition that “substantially limits” a “major life activity.”7 The term “major life
activities” means “functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.”8 The
term “substantially limits” means either (a) an inability “to perform a major life
activity that the average person in the general population can perform” or (b) a
significant restriction “as to the condition, manner, or duration under which an
individual can perform a particular major life activity as compared to the
condition, manner, or duration under which the average person in the general
population can perform that same major life activity.”9
      The district court concluded that Watson offered no evidence that he was
either (a) completely unable to see or (b) significantly restricted in the condition,
manner, or duration of his sight compared to the general population. Watson
does not contest the first finding, but argues that his condition significantly
restricts his ability to see compared to the general population. However, we held
in Still v. Freeport McMoran, Inc. that a plaintiff who was totally blind in one
eye is not substantially limited in his sight.10 Watson is able to see out of his
injured eye. Although Watson attempts to distinguish our holding in Still by
arguing that the injured eye’s inability to dilate more substantially limits his
ability to see than the plaintiff in Still, we disagree that Still does not apply.


      6
          Hileman v. City of Dallas, Tex., 115 F.3d 352, 355 (5th Cir. 1997).
      7
          29 C.F.R. §§ 1614.203(b), 1630.2(j)(1).
      8
          Id. § 1630.2(i).
      9
          Id. § 1630.2(j)(1).
      10
           120 F.3d 50, 52 (5th Cir. 1997).

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Moreover, the record shows that Watson continued to work in his regularly
assigned position for nine months and that he currently drives a truck
professionally and passed the vision test necessary for such a license.
Accordingly, Watson failed to meet his initial burden of showing actual
disability.
      As the district court noted, Watson could prove his prima facie
Rehabilitation Act case by showing that TYC regarded him as disabled. To be
regarded as disabled, one must:
      (1) have a physical or mental impairment that does not
      substantially limit major life activities, but be treated as such by an
      employer; (2) have a physical or mental impairment that
      substantially limits one or more major life activities, but only
      because of the attitudes of others toward the impairment; or (3)
      have no actual impairment at all, but be treated by an employer as
      having a substantially limiting impairment.11

Watson’s arguments indicate that he intends to meet the first standard.
      Watson could show that TYC treated him as having a substantial
limitation to a major life activity by presenting evidence that TYC limited his job
duties or undermined his return to a full range of duties.12 However, Watson
failed to meet his burden necessary to support such a conclusion. The record
evidence shows that Watson and not TYC contemplated a limitation of his
duties. TYC continued to give Watson a full range of responsibilities including
requesting his help during daytime hours. An employee “cannot succeed on the
‘regarded as disabled’ element . . . when [his] employer never limited [his] job
duties or hindered [his] return to the full range of duties.”13 Accordingly, the
district court properly concluded that TYC did not regard Watson as disabled.


      11
           McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 281 (5th Cir. 2000).
      12
           Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 508 (5th Cir. 2003).
      13
           Id.

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      Watson argues that the district court erred in concluding that Watson
failed to show that he was “otherwise qualified” for a position as Night
Operations Director. We do not need to address this argument given our
conclusion that the district court properly determined that Watson was not a
disabled individual and thus not entitled to protection under the Rehabilitation
Act.14 Moreover, there is no evidence in the record indicating that Watson was
ever placed into the accommodating position of Night Operations Director as he
claims. While there were efforts to schedule Watson for nighttime duties,
Watson was classified as a JCO at all times. This position required, as an
essential element of the job, that he be available to work overtime. Accordingly,
we affirm the district court’s grant of summary judgment in favor of TYC on
Watson’s Rehabilitation Act claim.
                                               B
      Watson further argues that the district court inappropriately granted
summary judgment on his state retaliation claim because he presented evidence
showing an inference of retaliation. Watson contends that he is able to show
that his subsequent transfers to non-accommodating positions provide an
inference of retaliation.
      Section 451.001 of the Texas Labor Code provides that “[a] person may not
discharge or in any other manner discriminate against an employee because the
employee has: (1) filed a workers’ compensation claim in good faith . . . .”15 The
burden of proof lies with the plaintiff to demonstrate a causal link between the
adverse action and the institution of that plaintiff’s worker’s compensation
proceeding.16


      14
           See Chiari v. City of League City, 920 F.2d 311, 315 (5th Cir. 1991).
      15
           TEX. LAB. CODE ANN. § 451.001.
      16
           TEX. LAB. CODE ANN. § 451.002(c).

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         A plaintiff may prove a causal link through circumstantial evidence or
reasonable inferences.17 To prove a casual link, a plaintiff may rely upon any of
the following:
         (1) the employer’s knowledge of the compensation claim by those
         making the decision to terminate;
         (2) a negative attitude towards the employee’s injured condition;
         (3) failure to adhere to established company policies;
         (4) discriminatory treatment of the injured employee in comparison
         to similarly situated employees; and
         (5) providing incentives to refrain from reporting on-the-job
         injuries.18

Further, retaliatory motive can be inferred from little or no lapse in time from
when the plaintiff engaged in the protected activity to the employer’s adverse
employment action.19
         As the district court concluded, Watson offered no circumstantial evidence
beyond TYC’s knowledge that Watson had filed a claim for worker’s
compensation benefits. However, “mere knowledge” is insufficient under Texas
law to establish a prima facie case for employment retaliation.20 Nor does the
lapse between Watson’s filing of his worker’s compensation claim and his
resignation establish a causal connection.                  Watson filed his worker’s
compensation claim on March 20, 2003 and was not terminated until after he
resigned 18 months later. Even assuming that Watson was transferred from a
nighttime position to a daytime JCO position, this did not occur until 13 months


         17
              Lee v. Haynes & Boone, L.L.P., 129 S.W.3d 192, 196 (Tex. App.—Dallas 2004, pet.
denied).
         18
              Wyler Indus. Works v. Garcia, 999 S.W.2d 494, 501 (Tex. App.—El Paso 1999, no
pet.).
         19
         Johnson v. City of Houston, 203 S.W.3d 7, 11-12 (Tex. App.—Houston [14th Dist.]
2006, pet. denied).
         20
              McIntyre v. Lockheed Corp., 970 S.W.2d 695, 698 (Tex. App.—Fort Worth 1998, no
pet.).

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after he filed his worker’s compensation claim. This lapse of time is simply too
remote to support an inference of retaliation.21 Accordingly, the district court did
not error in concluding that Watson had failed to establish a prima facie case of
retaliation and awarding summary judgment to TYC.
                                      *        *         *
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




       21
          Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514, 522-23 (Tex. App.—Houston [1st
Dist.] 2–6, pet. denied) (standing alone, a four and one half month delay between filing of claim
and discharge of an employee is insufficient to establish causal link); Grizzle v. Travelers
Health Network, 14 F.3d 261, 268 (5th Cir. 1994) (lapse of ten months between complaint and
termination does not support an inference of retaliation).

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