IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31215
ROBERT D. ALLEN,
Plaintiff-Appellant
VERSUS
RAPIDES PARISH SCHOOL BOARD
Defendant-Appellee
Appeals from the United States District Court
for the Western District of Louisiana
March 2, 2000
Before HIGGINBOTHAM and SMITH, Robert D. Allen sued the Rapides Parish
Circuit Judges, and FALLON, District School Board ("Board") for discrimination
Judge.* under the Americans with Disabilities Act of
1990 ("ADA"). Allen asserts that the Board
FALLON, District Judge: discriminatorily diminished his position and
commensurate salary within the Rapides
Parish school district because he suffered
from tinnitus, a condition causing him to
* hear a continuous loud ringing in his ears.
District Judge of the Eastern
The Board contends that it did not
District of Louisiana, sitting by designation.
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discriminate against Allen and afforded him a . . However, when I am in a school setting,
reasonable accommodation. Because the the normal noise levels in the school . . .
district court correctly granted summary muffles this tinnitus." Appellee's Ex. D.
judgment for the Board, we affirm. Allen's doctors also submitted letters
supporting a change in Allen's environment
I. to provide more background noise.
Allen holds a doctorate in education and Cox responded to Allen's concerns by
has been employed by the Board since 1981. giving him the choices of (1) closing his door
From 1981 to 1988, he held various and playing music, (2) moving his office to
positions including librarian and teacher. He an area close to where videos are recorded,
was promoted to assistant principal at Ball and (3) putting a television in his office.
Elementary School ("Ball") in 1988. In Allen dismissed each of these suggestions.
1990, he became the assistant From February 20, 1995 to June 30,
principal/librarian at Ball and agreed to a 1995, Allen took sick leave from his position
four-year contract which paid him $42,035 a as coordinator because he claimed his
year. tinnitus was aggravated and he was close to
The Board again promoted Allen in suffering a nervous breakdown. His doctors
August, 1994 to the position of Coordinator sent additional letters during this time to Cox
of the Media Center, Testing and Research requesting a "lateral transfer to an
for which his annual salary increased to environment in which a significant amount of
$47,825. In conjunction with his new noise exists." Pl.'s Opp. Ex. F. Allen sought
position, Allen signed a new two-year additional sick leave from July 1, 1995 until
contract. The contract entitled Allen to a he could be "transferred to an administrative
position of equal status and pay if he were position in a school setting." Def.'s Ex. C.
transferred during the two-year term. If his Cox instead granted Allen sabbatical leave
position were abolished, however, the Board from August 17, 1995 to May 31, 1996.
agreed to transfer or reassign him if possible During Allen's sabbatical leave, the
to a position of equal rank. Board eliminated several positions including
Soon after Allen began his new job his Allen's job as media center coordinator
tinnitus condition worsened. Since 1977, because of significant budget cuts. The
Allen has suffered from tinnitus, a condition Board notified Allen and instructed him to
causing a constant ringing in the ears which contact the director of personnel to
often incites nervousness and agitation. The determine his new job for the coming school
effects of tinnitus can be mitigated by year. When his sabbatical concluded in
sufficient ambient noise that masks the August, 1996, Allen became the librarian at
ringing sound. Tioga High School.
On December 12, 1994, Allen wrote to In February 1997, Allen again
Superintendent Dr. Betty Cox ("Cox") complained that his new position failed to
requesting a transfer to the position of produce enough background noise to
principal at an elementary school. In the mitigate the symptoms of his tinnitus. He
letter, Allen explained that "when I am in a sought another transfer in August, 1997 and
quiet building, office, or room, this ringing ultimately accepted the librarian position at
makes me very uncomfortable and nervous. . Horseshoe Elementary School. This
2
position, however, resulted in a decrease in because it found that the Board had provided
his yearly salary to $37,956. Allen with a reasonable accommodation.
Allen admits that his current position at The district court also agreed with the
Horseshoe Elementary School satisfies the Board that the position of assistant
needs of his tinnitus. Because an elementary principal/librarian did not qualify as a
school library holds more classes and "teacher" under Louisiana's Teacher Tenure
programs than a high school library, Allen Law as Allen contends. Therefore, the court
finds his new environment noisier and more held that Allen could not attain tenure in that
accommodating. Allen now also has hearing position as a matter of law and granted
aids which alleviate the problems of his summary judgment for the Board.
tinnitus condition.
Nevertheless, Allen argues that the II.
Board denied him promotions and refused We review de novo the grant of summary
his transfer requests to various administrative judgment by a district court and apply in our
positions because he suffered from tinnitus.1 review the same standard used by the district
The Board insists that it made reasonable court. See Taylor v. Principal Fin. Group,
accommodations for Allen and did not hire Inc. 93 F.3d 155, 161 (5th Cir. 1996).
him as a principal or an assistant principal Summary judgment is appropriate when the
because he failed to test high enough in the record demonstrates "that there is no
screening process. genuine issue as to any material fact and that
The district court assumed that tinnitus the moving party is entitled to judgment as a
was a disability and that Allen was a qualified matter of law." Id.; Fed. R. Civ. P. 56(c).
individual under the ADA, but it granted the According to this standard, we "review the
Board's motion for summary judgment facts drawing all inferences most favorable to
the party opposing the motion." Taylor, 93
F.3d at 161. "If the moving party meets the
1
Allen accepted his current position initial burden of showing there is no genuine
after the Board denied his application for issue of material fact, the burden shifts to the
nine different principal positions and four nonmoving party to produce evidence or
times for the assistant principal position at designate specific facts showing the
Tioga Elementary School. According to a existence of a genuine issue for trial." Id.
1994 court order, the Board must use a (quoting Engstrom v. First Nat'l Bank, 47
screening committee to nominate candidates F.3d 1459, 1462 (5th Cir. 1995).
for principal and assistant principal positions. A.
Although a screening committee The ADA prohibits employment
recommended Allen for the latter position, discrimination against persons with a
Cox did not support the recommendation disability. It provides that:
because she felt that Allen was neither (n)o covered entity shall discriminate
qualified nor appropriate for the position. against a qualified individual with a
She felt that Allen was unqualified because disability because of the disability of
he broke down and cried several times in her such individual in regard to job
office and felt that it was not appropriate for application procedures, the hiring,
him to hold a supervisory position at a advancement, or discharge of
school where his wife worked.
3
employees, employee readers or interpreters, and other
compensation, job training, and similar accommodations for
other terms and conditions, and individuals with disabilities.
privileges of employment. Id. § 12111(9).
42 U.S.C. § 12112(a). B.
The ADA defines "disability" in pertinent Allen argues that the Board denied him a
part as "a physical or mental impairment that reasonable accommodation by not
substantially limits one or more of the major transferring him to any vacant principal or
life activities of such individual." Id. § vice-principal positions. In support of this
12102(2)(a). contention, Allen accuses the Board of
"Discrimination" under the statute circumventing the interactive process
includes: required to find him a reasonable
not making reasonable accommodation.2 Specifically, Allen points
accommodations to the known to the fact that Cox took almost six months
physical or mental limitations of an to complete even an "extremely superficial
otherwise qualified individual with a examination of the issue [his tinnitus]," and
disability who is an applicant or that she then offered him three insufficient
employee, unless such covered entity accommodations – the use of a radio,
can demonstrate that the television, or an another office closer to
accommodation would impose an audio-visual equipment.
undue hardship on the operation of Allen does demonstrate a breakdown in
the business of such covered entity.
Id. § 12112(b)(5)(A).
2
A "qualified individual with a disability To support his argument, Allen
means an individual with a disability who, cites the interpretive regulations of the ADA
with or without a reasonable that provide:
accommodation, can perform the essential To determine the appropriate
functions of the employment position that reasonable accommodation it
such individual holds or desires." Id. § may be necessary for the
12111(8). covered entity to initiate an
A "reasonable accommodation" may informal, interactive process
include: with the qualified individual
(A) making existing facilities used by with a disability in need of the
employees readily accessible to and accommodation. This process
usable by individuals with disabilities; should identify the precise
and (B) job restructuring, part-time limitations resulting from the
or modified work schedules, disability and potential
reassignment to a vacant position, reasonable accommodations
acquisition or modification or that could overcome those
equipment or devices, appropriate limitations.
adjustment or modification of 29 C.F.R. § 1630.2(o)(3). See also Taylor,
examinations, training materials or 93 F.3d at 163-64; Beck v. University of
policies, the provision of qualified Wisconsin Bd. of Regents, 75 F.3d 1130,
1135 (7th Cir. 1996).
4
the interactive process. He satisfies the individuals who desire the same position.
notice requirements of Taylor and Beck by See Milton v. Scrivner, 53 F.3d 1118, 1125
showing that the Board knew of his (10th Cir. 1995) (holding that the ADA does
limitations. Taylor, 93 F.3d at 163; Beck, 75 not require employers to promote employees
F.3d at 1137. Allen and his doctors sent in order to reasonably accommodate them).
numerous unanswered letters to Cox Allen neither alleges a claim nor
concerning the existence, the effects, and the advances evidence to create a genuine issue
possible mitigation of his tinnitus. These of fact that the Board decisions to transfer
communications are the type of information him to librarian positions were
contemplated by the regulations and discriminatory. Allen also presents no
eventually prompted Allen's transfer to the evidence to show that the Board's decision
librarian position at Horseshoe Elementary not to offer him a position as principal or
School. Therefore, Allen does raise an issue assistant principal were motivated by
of material fact as to whether he satisfied the discrimination because of his disability.
requirements of Taylor and Beck for an At most, Allen claims that the Board
interactive process especially when acted unreasonably when transferring him to
construing the fact inferences in favor of a position paying approximately $4,100 a
Allen. But this alone is not sufficient to year less than his previous salary as assistant
establish an ADA claim. principal/librarian. He asserts that no
While Allen may establish that he made demotion and diminution of pay were
the Board aware of his condition and that he necessary because his graduate education
did not receive the transfer he sought, Allen and administrative experience qualify him for
fails to demonstrate that the transfers he did a position as principal or vice-principal.
receive were not reasonable Even if we accept these allegations as
accommodations. The record reveals that true, Allen only establishes that the Board
Allen was given four months of paid sick could have made other reasonable
leave, over nine months of paid sabbatical accommodations for him. Allen fails to
leave, numerous other options to aid in show that the decisions made by the Board
creating background noise to mask his were discriminatory. Even if his
tinnitus, a new position as a librarian at a reassignment to the library was unfair, this is
high school, and at his request, a transfer to not enough. The ADA gives Allen a claim
the position of librarian at an elementary only for discriminatory action and not for
school. Indeed, he concedes that his current unfair treatment. See Armstrong v. Turner
position as librarian at Horshoe Elementary Industries, Inc., 141 F.3d 554, 560 n.16 (5th
offers sufficient ambient noise and thus Cir. 1998) (noting that the ADA protects
reasonably accommodates him. employees from unlawfully motivated and
The gist of Allen's complaint is that he not erroneous or arbitrary personnel
was not transferred to a principal or vice decisions); Daugherty v. City of El Paso, 56
principal position. This is not sufficient to F.3d 695, 700 (5th Cir. 1995) (stating that the
establish a claim for discrimination. The ADA "prohibits employment discrimination
ADA does not require an employer to give against qualified individuals with disabilities,
an employee with a disability his job of no more and no less"). Without evidence to
choice especially when there are qualified demonstrate that the Board discriminated
5
against Allen by denying his transfer requests on the basis of his disability, we affirm the
on the basis of his disability, Allen fails to district court's granting of summary
satisfy his burden to overcome summary judgment for the Board on the disability
judgment. See Burch v. City of claims.4
Nacogdoches, 174 F.3d 615, 622-23 (5th Cir.
1999) (finding that the plaintiff has the C.
burden of showing "that he was denied the In addition to his ADA claim, Allen
job because of his disability").3 assets a claim under the Louisiana Teacher
Because Allen fails to offer any evidence Tenure Law ("TTL"). See La. Rev. Stat.
that creates a genuine issue of material fact Ann. § 17:441, et seq. He argues that the
as to whether the Board reasonably district court incorrectly granted summary
accommodated or discriminated against him judgment for the Board on his TTL claim
because a genuine issue of material fact
exists as to whether the position of assistant
3
Allen need not show direct evidence principal/librarian classifies as a teaching
of discrimination. In Daigle v. Liberty Life position under the TTL. If so, then Allen
Ins. Co., we noted an alternative means of insists that he was tenured as an assistant
proving an ADA claim: principal/librarian and should have returned
Alternatively, the indirect to that or a comparable position after his
method of proof set for Title sabbatical.
VII actions in McDonnell The Board responds that an
Douglas Corp. v. Green, 411 administrative position such as assistant
U.S. 792, 802 (1973), may principal/librarian could never constitute a
also be utilized. Under the teaching position under the TTL. Instead,
McDonnell Douglas analysis, Allen was tenured as a librarian and returned
a plaintiff must first make out to that position following his leave.
a prima facie case of Section 441 defines a "teacher" as "any
discrimination by showing employee of any parish or city school board
that: (1) he or she suffers who holds a teacher's certificate and whose
from a disability; (2) he or she legal employment requires such teacher's
is qualified for the job; (3) he certificate." Id. The parties do not contest
or she was subject to an that Allen is a tenured librarian and thus a
adverse employment action; teacher under the law. What they dispute is
and (4) he or she was whether Allen is tenured in the position of
replaced by a non-disabled assistant principal/librarian.
person or was treated less
favorably than non-disabled
4
employees. Allen also argues on appeal that he
70 F.3d 394, 396 (5th Cir. 1995) (internal suffers from a "disability" as defined under
citations omitted). Even if Allen satisfies the the ADA and that he is a "qualified
first three criteria, he makes no showing as individual" within the meaning of the ADA.
to the fourth. Thus, Allen also fails to meet We need not reach either of these issues
the burden for establishing an indirect claim because of our ruling on the issue of Allen's
of discrimination. reasonable accommodation.
6
Section 444(B) explains that whenever a
teacher, such as Allen, has acquired
permanent status and is promoted from a
lower to a higher salaried position, "such
teacher shall not gain permanent status in the
position to which he is promoted, but shall
retain permanent status acquired as a
teacher." Id. § 444(B)(1). Tenure is only
available for positions higher than teacher
that were attained before July 1, 1985. See
id. § 17:444(A)(4). Because Allen did not
receive his promotion until 1990, he cannot
be tenured in the higher position of assistant
principal/librarian.
This conclusion is further supported by
section 444(B)(3) which contemplates
promotions to non-teaching positions.
According to this section, "such a person
shall, however, automatically acquire
permanent status in the position of teacher
. . . provided the person is qualified to
teach." Id. Allen's contention undermines
the textual integrity of the TTL by rendering
the provisions of § 444 meaningless. See
United States v. Gobert, 139 F.3d 436, 440
(citing "our duty to give effect to every
clause and word of a statute").
Therefore, the district court also
correctly granted summary judgment for the
Board on Allen's TTL claim.
AFFIRMED.
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