           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                             Fifth Circuit
                                                                           F I L E D
                                     No. 07-20201                        September 11, 2007
                                   Summary Calendar
                                                                       Charles R. Fulbruge III
                                                                               Clerk

CAROLYN MILTON

                                                  Plaintiff-Appellant
v.

JAMES NICHOLSON, SECRETARY, DEPARTMENT OF VETERANS
AFFAIRS

                                                  Defendant-Appellee



                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:05-CV-3698


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Carolyn Milton appeals the district court’s grant of the defendant’s motion
for summary judgment. We AFFIRM.
                          I. FACTS AND PROCEEDINGS
       Milton suffers from depression and has received disability benefits for over
fourteen years.      Her benefits were authorized by the Federal Employees’



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Compensation Act (“FECA”), and administered by the Office of Workers’
Compensation Programs (“OWCP”), a division of the Department of Labor.
Before becoming disabled, Milton was employed by the Department of the Navy.
In 2003, Milton was referred for vocational rehabilitation. One goal of vocational
rehabilitation is the FECA beneficiary’s return to the workforce.
       In October 2003, Milton applied for a position as a program support clerk
with the Department of Veterans Affairs (“VA”) medical center in Houston.
Milton was interviewed for the job and disclosed her disability, explaining that
she had been instructed by the Department of Labor to find employment. The
VA offered Milton the position on January 20, 2004. The VA requested Milton
to provide documentation from OWCP that she was fully recovered and that the
position offered was suitable full-time employment. The VA received a letter
from Milton’s rehabilitation counselor who stated that Milton had been released
to perform the job at the VA. However, after receiving the letter, a VA official
contacted OWCP requesting information regarding Milton’s suitability for the
job.   An OWCP official told him that the rehabilitation counselor had no
authority to act for OWCP concerning employment determinations. According
to the VA, because Milton continued to be under medical care and in receipt of
workers’ compensation, the Department of Labor could not provide the VA with
an employment suitability letter for the clerk position.       The VA’s offer of
employment to Milton was withdrawn on February 5, 2004. In a letter dated
April 22, 2004, Jane McHam, a supervisory claims examiner at OWCP, advised
Milton that OWCP did not provide workers’ medical documentation to non-
employers without permission.      She further explained that job suitability
determinations were made if a job offer was refused and such determinations
were the responsibility of the claims examiner in OWCP, not a vocational
rehabilitation counselor.



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         On April 22, 2004, Milton filed a discrimination complaint with the Equal
Employment Opportunity Commission which was dismissed for lack of
jurisdiction. The administrative judge concluded that Milton’s claims were a
collateral attack on OWCP procedures. Milton then filed suit claiming that the
VA’s withdrawal of her offer of employment violated the Rehabilitation Act, 29
U.S.C. § 794(d). The government moved for summary judgment on September
28, 2006 arguing that Milton’s claims: (1) arose out of her misinterpretations of
OWCP regulations; (2) failed to established a prima facie case of discrimination;
and (3) failed to refute the VA’s legitimate, nondiscriminatory reason for not
hiring her, her failure to comply with OWCP procedures and regulations. Milton
responded that, among other arguments, she had met a prima facie case for
discrimination and that the VA had failed to satisfy their burden of producing
a legitimate, nondiscriminatory reason. On January 5, 2007, the district court
granted the defendant’s motion for summary judgment, holding that Milton
failed to meet the burden of providing evidence sufficient for a jury to conclude
that the VA was actually motivated by discrimination when it withdrew its job
offer.
                           II. STANDARD OF REVIEW
         In reviewing a grant of summary judgment by the district court, this court
examines “the record under the same standards as used by the trial court.”
Moore v. Miss. Valley State Univ., 871 F.2d 545, 548 (5th Cir. 1989). “Affirmance
of a summary judgment ruling requires that we be convinced, after an
independent review of the record, that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” Id. at
548–49 (internal quotations and alteration omitted). “The evidence and
inferences from the summary judgment record are viewed in the light most
favorable to the nonmovant.” Minter v. Great Am. Ins. Co. of New York, 423 F.3d
460, 465 (5th Cir. 2005).        To survive a summary judgment motion, the

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nonmovant “need only present evidence from which a jury might return a verdict
in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
                              III. DISCUSSION
      “The standards used to determine whether this section [of the
Rehabilitation Act] has been violated in a complaint alleging employment
discrimination under this section shall be the standards applied under title I of
the Americans with Disabilities Act of 1990 . . . .” 29 U.S.C. § 794(d). In a case
brought under the Americans with Disabilities Act, the court applies the burden-
shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir. 2000).
      Under this framework, a plaintiff must first make a prima facie
      showing of discrimination by establishing that: (1) He is disabled or
      is regarded as disabled; (2) he is qualified for the job; (3) he was
      subjected to an adverse employment action on account of his
      disability; and (4) he was replaced by or treated less favorably than
      non-disabled employees.
Id. at 279–80. After making this prima facie showing, the “burden then shifts
to the defendant-employer to articulate a legitimate, non-discriminatory reason
for the adverse employment action.” Id. at 280. If the employer can articulate
such a reason, “the burden then shifts back upon the plaintiff to establish by a
preponderance of the evidence that the articulated reason was merely a pretext
for unlawful discrimination.” Id.
      This court assumes for the purpose of argument that Milton could
establish a prima facie case of discrimination. The next question is whether the
VA has articulated a legitimate, non-discriminatory reason for its employment
action.   “The defendant need not persuade the court that it was actually
motivated by the proffered reasons. It is sufficient if the defendant’s evidence
raises a genuine issue of fact as to whether it discriminated against the
plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)


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(internal citation omitted). The defendant’s proffered reason, that Milton failed
to obtain a job suitability letter according to OWCP procedures, meets this
requirement.
      Milton argues that the VA’s reason was merely a pretext because the offer
of employment withdrawal was related to her disability, and the VA contacted
the OWCP because of her disability. She further argues that the resignation of
a VA human resource specialist is evidence that the VA’s legitimate, non-
discriminatory reason was a pretext for discrimination.
      To prove pretext, it is not enough to show the defendant’s proffered
reasons for employment action were unpersuasive or even contrived; instead the
court must accept the plaintiff’s explanation of intentional discrimination. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146–47 (2000); St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). However, “it is permissible
for the trier of fact to infer the ultimate fact of discrimination from the falsity of
the employer’s explanation.” Reeves, 530 U.S. at 147 (emphasis omitted). Milton
has not proven the intentional discrimination or falsity of the VA’s reasons to
allow a trier of fact to make such an inference. At most, the VA may have
misinterpreted government regulations. An attempt to follow government
regulations is not intentional discrimination, even if a misguided one. A request
for information regarding Milton’s suitability for employment and the
resignation of a human resource specialist is not enough to support Milton’s
claim. Viewed in light of the VA’s decision to hire Milton when it knew of her
disability but only withdrew the offer after it believed she had not obtained a
suitability letter according to OWCP regulations, Milton has failed to show that
a reasonable jury could return a verdict for her.
                               IV. CONCLUSION
      The judgment of the district court is AFFIRMED.



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