Tracy Lee Kendall v. Secretary, Department of Veterans Affairs
682 F. App'x 761
| 11th Cir. | 2017Background
- Kendall, a disabled veteran with bilateral knee replacements, applied for an Engineering Technician (Drafting) position at Bay Pines VA in 2008 but was not selected; the position went to Debra Hanby, a current VA employee.
- Selecting official Charlton reviewed HR‑certified applicants and chose Hanby because she had nine years of continuous relevant experience and familiarity with the facility; Kendall had a shorter, less stable employment history.
- Kendall was later offered and accepted a housekeeping position; he has artificial knees and signed a medical form but refused to mop floors when asked.
- Kendall requested a reasonable accommodation (exemption from mopping or reassignment) and submitted medical work‑restriction documentation; HR told him to wait for another assignment and later terminated him effective March 2009 for failure to qualify during his trial period.
- Kendall sued under the Rehabilitation Act alleging disability discrimination (failure to hire), failure to accommodate, termination discrimination, and retaliation; the district court granted summary judgment for the VA on all claims, and Kendall appealed the failure‑to‑hire and failure‑to‑accommodate rulings.
- The Eleventh Circuit affirmed: finding the VA offered legitimate nondiscriminatory reasons for hiring Hanby and that Kendall failed to show pretext; and finding Kendall was not a "qualified individual" for the housekeeping job because he could not perform an essential function (mopping) with or without reasonable accommodation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to hire (disability discrimination) | Kendall argues he was denied the engineering technician job due to disability; Hanby’s application was irregular so selection may be unlawful | VA: Charlton legitimately chose Hanby for greater, stable experience and familiarity with Bay Pines; HR certified both as qualified | Court: Affirmed for VA — plaintiff failed to show those reasons were pretextual |
| Failure to accommodate for housekeeping job | Kendall contends employer failed to accommodate his restriction (no mopping) and therefore violated Rehabilitation Act | VA: Mopping is an essential function; Kendall could not perform it even with reasonable accommodation, so he was not a "qualified individual" | Court: Affirmed for VA — Kendall did not prove he could perform essential functions with or without accommodation |
| Proof of pretext based on application irregularities | Kendall suggests HR’s handling of Hanby’s application shows discriminatory intent | VA: Any HR irregularity does not rebut Charlton’s subjective, good‑faith reasons for hiring Hanby | Court: Irregularities insufficient — pretext inquiry focuses on decisionmaker’s beliefs; plaintiff must rebut those reasons directly |
| Use of alternative circumstantial mosaic (Smith) on appeal | Kendall briefly raised Smith‑mosaic theory on appeal to show discriminatory intent | VA: Argument not raised below and lacks merit on record | Court: Declined to consider new Smith theory and found it unpersuasive in any event |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (framework for burden‑shifting in discrimination cases)
- Alvarez v. Royal Atl. Developers of Fla., Inc., 610 F.3d 1253 (pretext inquiry focuses on employer’s beliefs)
- Chapman v. AI Transp., 229 F.3d 1012 (plaintiff cannot win by simply disputing employer’s business judgment)
- Lucas v. W.W. Grainger, Inc., 257 F.3d 1249 (definition of "qualified individual" and essential functions analysis under ADA/Rehabilitation Act)
- Davis v. Fla. Power & Light Co., 205 F.3d 1301 (factors for determining essential job functions)
- Scott v. Harris, 550 U.S. 372 (genuine factual disputes must have a real basis in the record)