Case: 21-10380 Document: 00516032549 Page: 1 Date Filed: 09/28/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 28, 2021
No. 21-10380 Lyle W. Cayce
Summary Calendar Clerk
Vanessa Reed,
Plaintiff—Appellant,
versus
Denis McDonough, Secretary, U.S. Department of Veteran
Affairs,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-2153
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Vanessa Reed sued the U.S. Department of Veterans Affairs (the
“VA”) after her employer, the Dallas Veterans Administration Medical
Center, North Texas Health Care System (the “Dallas VA”) terminated
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-10380
Reed from her position as a Registered Nurse. The district court concluded
that (1) Reed had failed to establish that her wrongful termination claim
against the VA was a recognized cause of action, and (2) Reed had not
established a prima facie case of disability discrimination, retaliation, or
failure to accommodate. Reed appealed. We AFFIRM.
Background
Reed began her employment as a Registered Nurse in the telenursing
unit at the Dallas VA on June 15, 2015. In December 2015, the Dallas VA
notified the telenursing unit that the unit would be relocated to the basement,
where it would share a workspace with the wound care nurses. Reed, who
suffers from a condition known as “atopic dermatitis,” 1 requested to relocate
to a different workspace because she was concerned that working near the
wound care nurses would make her susceptible to skin infections. The Dallas
VA determined that Reed’s request was not supported by sufficient medical
documentation and eventually denied her request months later. But it did
provide Reed with equipment to reduce contact with surfaces in the
basement and continued to work with the Human Resources department to
search for a potential reassignment for Reed.
In order to comply with federal law, the Dallas VA requires its
Registered Nurses to maintain a “full and unrestricted license in a State.”
“An employee who fails to meet” this requirement “will be terminated
effective the date the qualification was lost.” On March 31, 2016, Reed’s
Arkansas Registered Nurse license expired, and she had no other valid active
license, so, the next day, the Dallas VA terminated Reed for failure to
maintain an active Registered Nurse license.
1
Atopic dermatitis causes a person’s skin to crack, flake, and itch.
2
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After her termination, Reed filed an employment discrimination
complaint with the VA’s Office of Employment Discrimination, alleging that
she had been terminated because she had a disability—her atopic dermatitis.
The agency denied both her administrative complaint and her subsequent
appeal. Following this denial, Reed filed the present suit against the U.S.
Secretary of the VA, alleging a claim for “Termination of Excepted
Appointment for Failure to Maintain Current Licensure or Certification.”
However, during her deposition, Reed conceded that her supervisor “didn’t
choose to terminate me on disability. She just . . . up and terminated me
because she said my license [had] expired.”
The parties subsequently filed cross-motions for summary judgment.
On the same day Reed submitted her reply brief in support of her motion for
summary judgment, she moved for leave to amend her complaint to allege a
claim for disability discrimination. Adopting an unobjected-to
recommendation from the magistrate judge, the district court denied Reed’s
motion to amend.
In evaluating the cross-motions for summary judgment, the district
court construed Reed’s complaint as alleging wrongful termination and
several disability-related claims. The district court then dismissed Reed’s
wrongful termination claim because there was no federal cause of action
against the VA under either 42 U.S.C. § 1983 or Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district
court similarly dismissed Reed’s disability-related claims because she failed
to make a prima facie case of disability discrimination. Reed timely appealed.
Jurisdiction & Standard of Review
The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343.
We have jurisdiction to review the district court’s final judgment under 28
U.S.C. § 1291.
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Reed appeals the district court’s summary judgment order. We
review a district court’s grant of summary judgment de novo, viewing all
admissible evidence “in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party’s favor.” Kariuki v. Tarango,
709 F.3d 495, 501 (5th Cir. 2013) (quotation omitted). A district court must
grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). 2
Discussion
Summary Judgment
The district court granted summary judgment on Reed’s claims for
(1) wrongful termination; (2) disability discrimination and retaliation; and
(3) failure to accommodate. We address each claim in turn.
1. Wrongful Termination
Reed characterizes her first cause of action as “Termination of
Excepted Appointment for Failure to Maintain Current Licensure or
Certification.” Reed previously argued, in response to the VA’s motion for
summary judgment, that her cause of action arises under 42 U.S.C. § 1983. 3
However, she fails to cite any law supporting her argument. In any event, the
scope of § 1983 “does not reach . . . actions of the Federal Government” like
2
While Reed also purports to appeal the court’s denial of her motion to amend,
she fails to adequately brief this issue, so we will not address it further. Grant v. Cuellar, 59
F.3d 523, 524 (5th Cir. 1995) (per curiam) (noting that, although we liberally construe pro
se pleadings, “pro se parties must still brief the issues”).
3
Reed’s complaint fails to cite any statutory provision authorizing such a cause of
action.
4
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the VA’s here. District of Columbia v. Carter, 409 U.S. 418, 424–25 (1973).
Thus, we affirm on this issue.
2. Disability Discrimination and Retaliation Claims
Reed next asserts several claims based on a theory of disability
discrimination and retaliation. 4 Reed contends that these claims fall within
the scope of the Americans with Disabilities Act. However, the
Rehabilitation Act of 1972 is the exclusive remedy for federal employees
alleging employment discrimination. Hileman v. City of Dall., 115 F.3d 352,
353 (5th Cir. 1997). Nevertheless, the Rehabilitation Act and the Americans
with Disabilities Act offer the same protections. Kemp v. Holder, 610 F.3d
231, 234 (5th Cir. 2010). Accordingly, we evaluate Reed’s claims within the
context of the Rehabilitation Act.
A plaintiff may prove employment discrimination and retaliation “by
direct or circumstantial evidence, or both.” Nall v. BNSF Ry. Co., 917 F.3d
335, 340 (5th Cir. 2019) (quotation omitted). When the plaintiff relies on
circumstantial evidence, we employ the burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Nall, 917 F.3d
at 340. Under McDonnell Douglas, the plaintiff must first present a prima
facie case of discrimination or retaliation. Roberson-King v. La. Workforce
Comm’n, 904 F.3d 377, 381 (5th Cir. 2018). If the plaintiff makes out her
prima facie case, “the burden shifts to the employer to provide a legitimate,
non-discriminatory reason for the employment decision.” Id. (quotation
omitted). If the employer provides such a reason, “the burden shifts back to
4
We address Reed’s disability discrimination and retaliation claims (which are not
explicitly pleaded in Reed’s complaint) because the district court resolved them on the
merits after liberally construing her complaint.
5
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the plaintiff to show the reason is merely pretextual.” Id. (internal quotation
marks and citation omitted).
To present a prima facie case for disability discrimination or
retaliation, Reed had to demonstrate a causal connection between her
disability and her termination. Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d
847, 853 (5th Cir. 1999); McCoy v. City of Shreveport, 492 F.3d 551, 556–57
(5th Cir. 2007) (per curiam). Reed failed to do so. It is well established that
“the employee must show that ‘but for’ the protected activity, the adverse
employment action would not have occurred.” Nall, 917 F.3d at 349. Yet
Reed has failed to proffer any evidence that the Dallas VA terminated her
because of her disability.
The undisputed evidence demonstrates that the Dallas VA
terminated Reed because of her failure to maintain an active Registered
Nurse license—a condition of Reed’s continued employment with the Dallas
VA. The Dallas VA requires its nurses to maintain all qualifications required
for appointment, including a full and unrestricted nursing license in a state.
If the required license expires or lapses, the nurse is terminated, as of the
expiration date; there are “no exceptions” to this “across-the-board rule.”
The record indicates that Reed ran afoul of that rule: Reed’s Arkansas license
was expired on the date the Dallas VA terminated her and her Texas license
had not yet been reinstated. 5 Indeed, Reed admitted as much at her
deposition, conceding that the Dallas VA terminated her because her license
had expired. Because Reed fails to establish that she was fired because of her
5
Reed’s Arkansas license expired on March 31, 2016. Reed’s Texas license was in
delinquent status as of March 31, 1990, and the record indicates that she had not taken the
steps necessary to restore her status prior to her termination.
6
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disability, we conclude that the district court properly granted summary
judgment on Reed’s disability-related claims.
3. Failure to Accommodate
The district court similarly granted summary judgment on Reed’s
failure to accommodate claim. To make out a prima facie case for failure to
accommodate, the plaintiff must prove that (1) she is a qualified individual
with a disability; (2) the covered employer knew of the disability and its
consequential limitations; and (3) the employer failed to make reasonable
accommodations. Feist v. Louisiana, 730 F.3d 450, 452 (5th Cir. 2013).
A “qualified” individual is one who, “with or without reasonable
accommodation, can perform the essential functions of the employment
position that such individual holds or desires.” 42 U.S.C. § 12111(8); see also
E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 n.7 (5th Cir.
2009). An individual who fails to possess necessary qualifications for her job
at the time of the adverse action is not “qualified.” Bienkowski v. Am.
Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988). Necessary qualifications
may include professional licenses required for the position. See id. at 1506
n.3; see also Martin v. Lennox Int’l Inc., 342 F. App’x 15, 16 (5th Cir. 2009)
(per curiam). Accordingly, because it is undisputed that she lacked the
requisite license, as discussed above, as a matter of law, Reed was unqualified
for the position, foreclosing her failure to accommodate claim. See
Bienkowski, 851 F.2d at 1506 & n.3. Therefore, the district court properly
granted summary judgment on this claim.
Accordingly, we AFFIRM.
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