518 F. App'x 957
11th Cir.2013Background
- Curry worked for the VA since 1985 as a typist/ward secretary (unit clerk).
- She began receiving federal workers’ compensation in 1997 for disability; benefits continued through 2009.
- While on benefits, she earned nursing degrees (2004 associate, 2005 bachelor, 2008 master).
- She sought VA re-employment as a nurse and applied in 2008; filed a December 5, 2008 EEO complaint alleging disability discrimination for failure to restore.
- The VA denied disability discrimination in its final agency decision (2009); Curry later filed suit December 2, 2009.
- District court granted summary judgment for the VA in August 2011; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Curry preserved only three claims for merits adjudication | Curry preserved FECA, Rehabilitation Act disability discrimination, and retaliation claims. | VA moved for summary judgment on all claims; Curry abandoned other claims by not challenging them. | Curry preserved only three claims; others were abandoned. |
| FECA claim: whether VA failed to restore or rehire | VA did not make reasonable efforts to restore or rehire Curry 2004–2008. | VA complied with FECA by offering positions similar to Curry’s prior role; no demand for a nurse position. | VA complied; no obligation to restore to a nurse position; no FECA violation. |
| Rehabilitation Act disability discrimination claim | Curry is a qualified individual with a disability and the VA failed to accommodate. | Curry failed to show she was a qualified individual capable of the essential functions with or without accommodation. | No prima facie case; no reasonable accommodation demonstrated; summary judgment affirmed for disability discrimination. |
| Rehabilitation Act retaliation claim | The VA surveilled Curry in retaliation for protected activity. | Surveillance evidence is insufficient, untimely, and lacks causal connection. | Claim barred for untimely exhaustion; alternatively, no prima facie showing of retaliation. |
| Post-December 5, 2008 conduct claims | Post-2008 acts referenced in 2010 EEO complaint were within scope. | Post-2008 claims were not set forth in the civil complaint and not litigated. | District court erred to consider post-2008 claims; appellate court limited to pre-2008 claims; footnote 11 vacated. |
Key Cases Cited
- Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587 (11th Cir. 1995) (en banc; abandonment affects appeal on issues raised)
- McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (U.S. Supreme Court 1973) (employer's burden-shifting framework for discrimination claims)
- Lucas v. W.W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001) (Rehabilitation Act/ADA accommodation; not required to promote disabled employee)
- Sutton v. Lader, 185 F.3d 1203 (11th Cir. 1999) (employer not required to create new positions; accommodation must be reasonable)
- Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997) (reasonableness and undue hardship in accommodation analysis)
- Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997) (McDonnell Douglas framework in retaliation/Title VII context)
- Marsh v. Butler Cnty., Ala., 268 F.3d 1014 (11th Cir. 2001) (en banc; case scope and litigation boundaries)
- Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306 (11th Cir. 2007) (consider evidence for elements of claims; relevance to summary judgment)