* 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. 07-31036

Summary Calendar

NELSON ANDRE AGUILLARD

Plaintiff-Appellant

v.

MICHAEL B MUKASEY, Attorney General, United States Department of

Justice; HARLEY G LAPPIN, Director of the Federal Bureau of Prisons

Defendants-Appellees

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 2:07-CV-299

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Nelson Andre Aguillard (“Aguillard”) injured his back

while working for the Bureau of Prisons (“BOP”). He then brought suit under

the Rehabilitation Act, alleging that the BOP failed to provide him with a

reasonable accommodation that would allow him to work within the limits of his

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2008

Charles R. Fulbruge III

Clerk
No. 07-31036

2

injury. The district court granted summary judgment in favor of the

government. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Aguillard served as a correctional officer at the Federal Detention Center

in Oakdale, Louisiana, from July 14, 1991, until the BOP terminated his

employment on June 28, 1999. On September 28, 1998, Aguillard suffered a

back injury at work while trying to lift a metal crash barrier. He visited a doctor

the next day, who diagnosed him with a lumbar strain and later concluded that

Aguillard had a bulging lumbar disc. On December 21, 1998, his physician, Dr.

John Schutte, cleared Aguillard to return to work under the condition that he

neither sit for more than two hours at a time nor lift more than thirty pounds.

Dr. Schutte believed that Aguillard’s condition was temporary in nature and

that he could still perform his duties, with these restrictions. Aguillard then

returned to work on January 17, 1999, but he could not complete his shift due

to back pain. On January 26, 1999, a second physician, Dr. Wayne Lindemann,

agreed with Dr. Schutte that Aguillard’s injury was temporary, and he cleared

Aguillard to return to work with similar restrictions on his activities. The BOP

offered Aguillard a temporary light-duty assignment as a Morning Watch

Officer/Correctional Officer, which entailed duties that were consistent with the

doctors’ restrictions. Aguillard rejected this offer, stating that his back injury

precluded him from supervising inmates. Dr. Lindemann agreed with Aguillard,

opining that Aguillard might aggravate his back injury if he had to discipline or

maintain control of inmates.

Based on Dr. Lindemann’s report, the BOP offered Aguillard a position as

a Front Entry Officer. The BOP assured Aguillard that he would not have to

discipline or maintain control of inmates and further stated that Aguillard would

not be forced to respond to emergencies involving the inmates for the next ninety

days. Aguillard rejected this offer as well, claiming that the Front Entry Officer
No. 07-31036

3

position still would include contact with inmates and that exempting him from

responding to emergencies was unrealistic. The BOP reviewed its current

vacancies to determine if it could offer Aguillard a different position. Finding no

other suitable position for Aguillard that would be consistent with his skills and

injury-related restrictions, the BOP terminated Aguillard’s employment.

Aguillard then filed a formal complaint of employment discrimination with

the Equal Employment Opportunity Commission (“EEOC”). An administrative

law judge (“ALJ”) found that the BOP failed to reasonably accommodate

Aguillard’s physical impairment. However, the Department of Justice’s

Complaint Adjudication Office disagreed, issuing a Final Order finding that

Aguillard did not present sufficient evidence of a disability and that the BOP

was justified in terminating Aguillard’s employment. The Final Order

authorized the BOP to appeal the ALJ’s decision to the EEOC’s Office of Federal

Operations. On appeal, the Office of Federal Operations also found that

Aguillard did not have a disability, and that even if he did, the BOP had

provided a reasonable accommodation. Aguillard filed suit in the district court

against the Department of Justice and the Federal Bureau of Prisons, alleging

thatthe BOP violated Section 501 ofthe Rehabilitation Act of 1973, as amended,

29 U.S.C. § 791. The district court granted summary judgment in favor of the

government. Aguillard appeals.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the district court’s final order granting summary

judgment pursuant to 28 U.S.C. § 1291. This court reviews a district court’s

grant of summary judgment de novo, applying the same standard as the district

court. See Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir. 2001). We

will affirm a district court’s decision to grant summary judgment if “there is no

genuine issue as to any material fact and . . . the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(c).
No. 07-31036

4

III. DISCUSSION

An individual claiming discrimination under the Rehabilitation Act must

show that he (1) is an “individual with a disability,”(2) was “otherwise qualified”

for the job in question, (3) “worked for a program or activity receiving Federal

financial assistance,” and (4) “was discriminated against solely by reason of her

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

(citing 29 U.S.C. § 794(a)). An “individual with a disability” is a person who “(1)

has a physical or mental impairment which ‘substantially limits one or more of

such person’s major life activities’; (2) has a ‘record’ of such an impairment; or

(3) is ‘regarded’ as having such an impairment.” Id. (quoting 29 U.S.C.

§ 706(8)(B)). Aguillard does not contend that he has a “record” of an impairment

or that he is “regarded” as having an impairment, so to qualify under the

Rehabilitation Act, he must demonstrate that his back injury “substantially

limits one or more of [his] major life activities.” 29 U.S.C. § 706(8)(B).

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme

Court stated, “Merely having an impairment does not make one disabled . . . .

Claimants also need to demonstrate that the impairment limits a major life

activity.” 534 U.S. 184, 195 (2002). The Court defined “major life activities” as

“those activities that are of central importance to daily life.” Id. at 197. With

regard to whether the performance of manual tasks qualifies as a “major life

activity,” the Court held that “to be substantially limited in performing manual

tasks, an individual must have an impairmentthat prevents or severely restricts

the individual from doing activities that are of central importance to most

people’s daily lives. The impairment’s impact must also be permanent or

long-term.” Id. at 198; see also 29 C.F.R. § 1630.2(j)(2) (listing, as factors to

determine if an individual is “substantially limited in a major life activity,” “(i)

The nature and severity of the impairment; (ii) The duration or expected
No. 07-31036

5

duration of the impairment; and (iii) The permanent or long term impact, or the

expected permanent or long term impact of or resulting from the impairment”).

Here, Aguillard failed to assert that his back injury prevented him from

performing any major life activities. Indeed, two doctors agreed that Aguillard

could return to work with certain minor restrictions, and none of those

restrictions implied that Aguillard’s impairment limited a major life activity.

Further,the medical evidence reveals that his injury was not permanent or longterm. Although Aguillard presented his own affidavit to the district court that

outlined his daily struggles because of his back injury, he does not refute the

statements from his doctors that his back injury was temporary. Aguillard also

admits that he would not have required any accommodation in his employment

after he received proper treatment because his condition was not permanent.

Accordingly, Aguillard cannot make it past the first step of the analysis, as he

is not an “individual with a disability” under the Rehabilitation Act.

IV. CONCLUSION

Although it is undisputed that Aguillard suffered a back injury during his

employment, it is also clear that the limited and temporary nature of his injury

precludes him from relief. Therefore, the district court properly granted

summary judgment in favor of the government.

AFFIRMED.