IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20628
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KELVIN WASHINGTON,
Plaintiff-Appellant,
versus
HCA HEALTH SERVICES OF TEXAS, INC.,
doing business as HCA Spring Branch
Medical Center,
Defendant-Appellee.
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Appeal from the United States District Court for the
Southern District of Texas
(CA-H-94-1831)
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June 26, 1996
Before REAVLEY, GARWOOD, and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Kelvin Washington appeals the district court's summary
judgment in favor of HCA Health Services of Texas, Inc., doing
business as Spring Branch Medical Center, on his disability
discrimination claim under the Americans with Disabilities Act of
1990 ("ADA"). Having thoroughly reviewed the record, we conclude
that HCA was not entitled to summary judgment. Although HCA
*
Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
contends that it merely followed its seniority system in
determining who would be laid off, there exists a genuine issue of
material fact as to whether Washington's lay-off was motivated by
discriminatory animus in violation of the ADA in view of the
discretion exercised in selecting the positions within which the
lay-offs occurred. We therefore reverse the judgment of the
district court and remand for further proceedings consistent with
this opinion.
I
HCA's Spring Branch Medical Center employed Washington from
September 26, 1991, until his lay-off on August 10, 1993.
Washington suffers from Adult Stills disease, a degenerative
disease affecting the bones and joints. Stress and rigorous work
schedules apparently exacerbate the disease and make it more
difficult to control with medication. Early in 1993, Washington
was working twelve- to sixteen-hour work days. In May 1993,
Washington passed out at work and required emergency room
treatment. After this incident, Washington gave Lynne Mitchell,
his supervisor and the head of the accounting department at Spring
Branch, a letter dated June 1, 1993, from his doctor indicating
that his disease required that he work no more than ten hours per
day for five consecutive days. Washington claims in an affidavit
filed in response to HCA's motion for summary judgment that
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Mitchell told him that "unless [he] worked the additional hours,
[he] would not have [his] job."
On June 7, 1993, Washington's attorney wrote to Spring
Branch's director of human resources, Carole Melville, advising her
of the doctor's letter and requesting an accommodation of
Washington's disability under the ADA. Washington alleges in his
affidavit that Melville told him that "management was `unhappy'
about receiving this letter from [his] lawyer." Even after the
letter from his attorney, Washington still continued to work in
excess of fifty hours per week. It was not until "some point in
late July or early August of 1993" that Washington limited his
hours to fifty per week. He claims he was then told that he was
not working hard enough.
On August 10, 1993, HCA laid off Washington and eight other
employees working in different departments. These lay-offs were
part of Spring Branch's hospital-wide reduction in force in which
seventeen employees were laid off in 1993, including two other
employees in Washington's department, a cash control clerk in
February and a clerk-receptionist in October.
In April 1994, Washington filed this action in Texas state
court. HCA subsequently removed the suit to federal court. HCA
filed a motion for summary judgment in March 1995, arguing, inter
alia, that Washington was laid off for a non-discriminatory reason
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and that Washington had offered no evidence to show that its
proffered reason was a pretext for discrimination. Specifically,
HCA argued that the decision to lay off Washington was based on
seniority in accordance with Spring Branch's Staff Reduction
Policy. That policy directs, "Selection of employees for layoff or
reduction in hours will generally be made by seniority . . . ."
Washington held one of the two senior accountant positions targeted
for reduction. The other senior accountant, Grace Willette, was
hired by HCA in February 1989, five months before Washington began
work at another HCA-owned facility and more than two years prior to
Washington's transfer to Spring Branch. HCA therefore claimed that
the lay-off was the result of "a non-discriminatory policy
implemented without any regard to [Washington's] disability."
Declaring that Washington failed to offer evidence that would
raise an issue of material fact as to whether HCA's proffered
reason for his layoff was false, the district court granted HCA
summary judgment on May 18, 1995. This timely appeal followed.
II
A
We review a district court's grant of summary judgment de
novo, applying the same standard as the district court. Neff v.
American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995),
cert. denied, 116 S.Ct. 704 (1996). Summary judgment is
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appropriate if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." FED.R.CIV.P. 56(c). For purposes of the
summary judgment determination, all fact questions are viewed in
the light most favorable to the nonmovant. Hassan v. Lubbock
Indep. Sch. Dist., 55 F.3d 1075, 1078 (5th Cir.), cert. denied, 116
S.Ct. 532 (1995).
B
The question before us is whether Washington has adduced
sufficient countervailing evidence to create a fact question
whether HCA's proffered non-discriminatory reason of seniority was
pretextual and that Washington's disability was a motivating factor
in his discharge. We conclude that he did.
Attached to Washington's response to HCA's motion for summary
judgment was a portion of the deposition of Mitchell, the head of
the accounting department and Washington's department head. The
deposition reveals that the hospital administration gave her
complete authority to select the position to be eliminated:
Q. And when did you find out that that would be
Kelvin's position, senior accountant?
A. Well, administration met with each department
director that was going to have to cut staff;
and they left it up to the department director
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to decide where they could afford to cut the
most.
Q. Who was the department director in this area?
A. I was.
* * *
Q. And it was your choice as to which position
would be eliminated then, correct?
A. I made the final decision, yes.
Q. Okay. What kind of input did you get in terms
of making the choice as to which position
would be eliminated?
A. I spoke with the supervisors I had from my
department, and we basically came up with who
we felt like we could afford to do without at
that point based on the job duties in our
office.
* * *
Q. Could you have made a decision to eliminate an
accounting supervisor?
A. Yes.
This evidence undercuts HCA's proffered non-discriminatory reason
for the lay-off. The fact that Washington's lay-off was based on
his lack of seniority in the senior accountant position does
nothing to explain Mitchell's reason for targeting Washington's
position as opposed to other positions in the accounting department
in the first place. Coupled with the allegations appearing in
Washington's affidavit concerning hostile comments made by Mitchell
and other management personnel at Spring Branch, Washington's
summary judgment evidence shows that there continues to be a
genuine issue of material fact whether Washington's lay-off was
motivated by discriminatory animus in violation of the ADA.
III
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For the foregoing reasons, we REVERSE the summary judgment of
the district court and REMAND for further proceedings consistent
with this opinion.
REVERSED and REMANDED.
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