*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 95-20628

____________________

KELVIN WASHINGTON,

Plaintiff-Appellant,

versus

HCA HEALTH SERVICES OF TEXAS, INC.,

doing business as HCA Spring Branch

Medical Center,

Defendant-Appellee.

_______________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

 (CA-H-94-1831) 

_______________________________________________________________

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
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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.