Allen v. Rapides Parish School Board

                 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


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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.

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         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).

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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


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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
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         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.

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      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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