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

                                                                            FILED
                                                                        September 10, 2008

                                     No. 07-31036                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


NELSON ANDRE AGUILLARD

                                                  Plaintiff-Appellant
v.

MICHAEL B MUKASEY, Attorney General, United States Department of
Justice; HARLEY G LAPPIN, Director of the Federal Bureau of Prisons

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:07-CV-299


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Nelson Andre Aguillard (“Aguillard”) injured his back
while working for the Bureau of Prisons (“BOP”). He then brought suit under
the Rehabilitation Act, alleging that the BOP failed to provide him with a
reasonable accommodation that would allow him to work within the limits of his




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-31036

injury.   The district court granted summary judgment in favor of the
government. For the following reasons, we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Aguillard served as a correctional officer at the Federal Detention Center
in Oakdale, Louisiana, from July 14, 1991, until the BOP terminated his
employment on June 28, 1999. On September 28, 1998, Aguillard suffered a
back injury at work while trying to lift a metal crash barrier. He visited a doctor
the next day, who diagnosed him with a lumbar strain and later concluded that
Aguillard had a bulging lumbar disc. On December 21, 1998, his physician, Dr.
John Schutte, cleared Aguillard to return to work under the condition that he
neither sit for more than two hours at a time nor lift more than thirty pounds.
Dr. Schutte believed that Aguillard’s condition was temporary in nature and
that he could still perform his duties, with these restrictions. Aguillard then
returned to work on January 17, 1999, but he could not complete his shift due
to back pain. On January 26, 1999, a second physician, Dr. Wayne Lindemann,
agreed with Dr. Schutte that Aguillard’s injury was temporary, and he cleared
Aguillard to return to work with similar restrictions on his activities. The BOP
offered Aguillard a temporary light-duty assignment as a Morning Watch
Officer/Correctional Officer, which entailed duties that were consistent with the
doctors’ restrictions. Aguillard rejected this offer, stating that his back injury
precluded him from supervising inmates. Dr. Lindemann agreed with Aguillard,
opining that Aguillard might aggravate his back injury if he had to discipline or
maintain control of inmates.
      Based on Dr. Lindemann’s report, the BOP offered Aguillard a position as
a Front Entry Officer. The BOP assured Aguillard that he would not have to
discipline or maintain control of inmates and further stated that Aguillard would
not be forced to respond to emergencies involving the inmates for the next ninety
days. Aguillard rejected this offer as well, claiming that the Front Entry Officer


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position still would include contact with inmates and that exempting him from
responding to emergencies was unrealistic. The BOP reviewed its current
vacancies to determine if it could offer Aguillard a different position. Finding no
other suitable position for Aguillard that would be consistent with his skills and
injury-related restrictions, the BOP terminated Aguillard’s employment.
      Aguillard then filed a formal complaint of employment discrimination with
the Equal Employment Opportunity Commission (“EEOC”). An administrative
law judge (“ALJ”) found that the BOP failed to reasonably accommodate
Aguillard’s physical impairment.       However, the Department of Justice’s
Complaint Adjudication Office disagreed, issuing a Final Order finding that
Aguillard did not present sufficient evidence of a disability and that the BOP
was justified in terminating Aguillard’s employment.           The Final Order
authorized the BOP to appeal the ALJ’s decision to the EEOC’s Office of Federal
Operations.   On appeal, the Office of Federal Operations also found that
Aguillard did not have a disability, and that even if he did, the BOP had
provided a reasonable accommodation. Aguillard filed suit in the district court
against the Department of Justice and the Federal Bureau of Prisons, alleging
that the BOP violated Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 791. The district court granted summary judgment in favor of the
government. Aguillard appeals.
           II. JURISDICTION AND STANDARD OF REVIEW
      We have jurisdiction over the district court’s final order granting summary
judgment pursuant to 28 U.S.C. § 1291. This court reviews a district court’s
grant of summary judgment de novo, applying the same standard as the district
court. See Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir. 2001). We
will affirm a district court’s decision to grant summary judgment if “there is no
genuine issue as to any material fact and . . . the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c).

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                               III. DISCUSSION
      An individual claiming discrimination under the Rehabilitation Act must
show that he (1) is an “individual with a disability,” (2) was “otherwise qualified”
for the job in question, (3) “worked for a program or activity receiving Federal
financial assistance,” and (4) “was discriminated against solely by reason of her
or his disability.” Hileman v. City of Dallas, 115 F.3d 352, 353 (5th Cir. 1997)
(citing 29 U.S.C. § 794(a)). An “individual with a disability” is a person who “(1)
has a physical or mental impairment which ‘substantially limits one or more of
such person’s major life activities’; (2) has a ‘record’ of such an impairment; or
(3) is ‘regarded’ as having such an impairment.”          Id. (quoting 29 U.S.C.
§ 706(8)(B)). Aguillard does not contend that he has a “record” of an impairment
or that he is “regarded” as having an impairment, so to qualify under the
Rehabilitation Act, he must demonstrate that his back injury “substantially
limits one or more of [his] major life activities.” 29 U.S.C. § 706(8)(B).
      In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme
Court stated, “Merely having an impairment does not make one disabled . . . .
Claimants also need to demonstrate that the impairment limits a major life
activity.” 534 U.S. 184, 195 (2002). The Court defined “major life activities” as
“those activities that are of central importance to daily life.” Id. at 197. With
regard to whether the performance of manual tasks qualifies as a “major life
activity,” the Court held that “to be substantially limited in performing manual
tasks, an individual must have an impairment that prevents or severely restricts
the individual from doing activities that are of central importance to most
people’s daily lives. The impairment’s impact must also be permanent or
long-term.” Id. at 198; see also 29 C.F.R. § 1630.2(j)(2) (listing, as factors to
determine if an individual is “substantially limited in a major life activity,” “(i)
The nature and severity of the impairment; (ii) The duration or expected



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duration of the impairment; and (iii) The permanent or long term impact, or the
expected permanent or long term impact of or resulting from the impairment”).
      Here, Aguillard failed to assert that his back injury prevented him from
performing any major life activities. Indeed, two doctors agreed that Aguillard
could return to work with certain minor restrictions, and none of those
restrictions implied that Aguillard’s impairment limited a major life activity.
Further, the medical evidence reveals that his injury was not permanent or long-
term. Although Aguillard presented his own affidavit to the district court that
outlined his daily struggles because of his back injury, he does not refute the
statements from his doctors that his back injury was temporary. Aguillard also
admits that he would not have required any accommodation in his employment
after he received proper treatment because his condition was not permanent.
Accordingly, Aguillard cannot make it past the first step of the analysis, as he
is not an “individual with a disability” under the Rehabilitation Act.
                             IV. CONCLUSION
      Although it is undisputed that Aguillard suffered a back injury during his
employment, it is also clear that the limited and temporary nature of his injury
precludes him from relief.    Therefore, the district court properly granted
summary judgment in favor of the government.
      AFFIRMED.




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