No. 06-60994

*

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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60994

CYNTHIA S. MCKAY

Plaintiff-Appellant

v.

MIKE JOHANNS, SECRETARY, DEPARTMENT OF AGRICULTURE, AND

NICK WALTERS, STATE DIRECTOR OF UNITED STATES DEPARTMENT

OF AGRICULTURE, RURAL DEVELOPMENT

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Mississippi, Western Division

USDC No. 5:05-CV-80

Before DeMOSS, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Appellant Cynthia S. McKay (“McKay”) appeals the district court’s

dismissal of her claims of disability discrimination under the Rehabilitation Act

of 1973, 29 U.S.C. § 791. Because we agree that McKay cannot show that she

suffered an “adverse employment action,” we AFFIRM the district court’s

United States Court of Appeals

Fifth Circuit

F I L E D

February 8, 2008

Charles R. Fulbruge III

Clerk
No. 06-60994

dismissal of her claims. 

I.

McKay, who suffers from a speech impediment, a hearing impediment, and

a learning disability, has been employed at the United States Department of

Agriculture (“USDA”) Rural Development Office in Jackson, Mississippi since

August 5, 1984. On or about June 19, 2003, McKay was moved from her work

station in the “Contraction/Procurement” area of the USDA Jackson office to

another workstation, located in the “Personnel” area of the same office. There is

a dispute concerning the exact distance between the workstations. While the

USDA claims the work station was relocated by only about ten feet, McKay

claims the move was more dramatic and landed her in a cramped and isolated

area. McKay’s new workstation had previously been the office of another

employee. 

On May 23, 2006, after receiving a right to sue letter from the EEOC,

McKay filed this action in the United States District Court for the Southern

District of Mississippi, claiming her work space relocation was the result of

purposeful discrimination. Specifically, McKay argues her supervisor’s personal

dislike of her appearance and speech impediment motivated him to have her

moved in violation of the Rehabilitation Act’s provisions. The USDA denies

McKay’s relocation was motivated by discrimination, instead asserting the

change was prompted by a nationally mandated office restructuring designed to

make room for prospective staff. 

II.

We review de novo the district court’s granting of summary judgment,

applying the same standard as the district court. Gowesky v.Singing River Hosp.

Sys., 321 F.3d 503, 507 (5th Cir. 2003). Summary judgment is appropriate when

there is no genuine issue as to any material fact and the moving party is entitled

to judgment as a matter of law. See Kee v. City of Rowlett, 247 F.3d 206, 210 (5th

Cir. 2001). 
No. 06-60994

1 McKay also sued Nick Walters (“Walters”), Mississippi State Director of USDA, Rural

Development, in his individual capacity. This issue was not addressed by the district court and

was raised by the USDA on appeal. This court has held that the proper defendant in a suit

brought under the Rehabilitation Act is the program or activity receiving federal financial

assistance, thus a plaintiff cannot sue an individual under the Act. See Lollar v. Baker, 196 F.3d

603, 609 (5th Cir. 1999) (recognizing that the Act’s enforcement provision provides for suit

against “any program or activity” and it is the program that is the recipient of federal financial

assistance).

Discrimination claims brought under the Rehabilitation Act are governed

by the same standards as claims brought under Title I of the Americans with

Disabilities Act of 1990 (“ADA”). See 29 U.S.C. § 794(d). To qualify for relief

under the Rehabilitation Act, a plaintiff seeking to establish a prima facie case

of discrimination must show that (1) that she has a disability; (2) she is an

individual qualified for the job in question; (3) she worked for a program or

activity receiving Federal financial assistance; and (4) an adverse employment

decision was made solely because of this disability. See 29 U.S.C. § 794(a);

Hileman v. City of Dallas, 115 F.3d 352, 353 (5th. Cir. 1997).

The district court granted the USDA’s motion for summary judgment on

McKay’s claims on the ground that the act challenged by McKay, her relocation

from one workstation to a less favorable workstation, did not constitute an

“adverse employment action.” We agree.1

This court has consistently limited “adverse employment action” in the

Title VII contextto acts which effect compensation, duties, and benefits. See, e.g.,

Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004) (in Title VII

discrimination context; “an adverse employment action consists of ultimate

employment decisions such as hiring, granting leave, discharging, promoting,

and compensating.”). It is not entirely clear that this Circuit’s formulations of

the ultimate employment decision standard comports with the Supreme Court’s

characterization of the Title VII standard in Burlington Northern & Santa Fe

Ry. Co. v. White, 126 S.Ct. 2405, 2411-12 (2006) (. . . words in the substantive

provisions of Title VII, such as “hire,” “discharge,” “compensation, terms,
No. 06-60994

conditions, or privileges of employment” limit the scope of the provision to

actions that affect employment or alter the conditions of the workplace).

However, we need not decide that issue in the present case because nothing in

Title VII or the Supreme Court’s decision indicates that moving an employee to

a smaller work station is the type of employment condition that Congress

intended to be actionable. 

We conclude that similar limitations apply to the similarly worded

provisions of the ADA and by extension the Rehabilitation Act. Compare 42

U.S.C. § 2000e-2(a)(1) (Title VII’s substantive provision which makes it unlawful

for an employer to “fail or refuse to hire or to discharge. . . or otherwise to

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment. . . .”) with 42 U.S.C. § 12112(a) (The

ADA’s substantive provision which forbids discrimination “in regard to job

application procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions, and privileges

of employment.”). Discrimination claims brought under the Rehabilitation Act

are governed by the same standards as claims brought under Title I of the

Americans with Disabilities Act of 1990 (“ADA”). See 29 U.S.C. § 794(d). 

Because McKay’s claim is premised only on the inconvenience and size of

a new workstation, and because she does not allege a change in compensation,

benefits, or responsibilities, we agree with the district court’s conclusion that

McKay has not suffered an actionable adverse employment action. As such,

McKay fails to make a prima facie case of discrimination under the

Rehabilitation Act.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the ruling of the district court.