Handy v. Brownlee , 118 F. App'x 850 ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
December 22, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT
Clerk
_____________________
Summary Calendar
No. 04-50545
_____________________
JAMES D HANDY
Plaintiff - Appellant
v.
R L BROWNLEE, Acting Secretary of the Army
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
No. 02-CV-351
Before KING, Chief Judge, and DAVIS and STEWART, Circuit
Judges.
PER CURIAM:*
Appellant James D. Handy, a civilian employee at an
Army installation, was injured in an accident. After the
accident, he was able to return to work, subject to certain
accommodations. Handy’s physical restrictions eventually
became so severe that even with all reasonable
*
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opinion should not be published and is not precedent except under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.
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accommodations, he could no longer fulfill the core
responsibilities of his job. Handy thus chose to take
disability retirement. He then filed suit against the
Secretary of the Army in the United States District Court
for the Western District of Texas, claiming that he was
discharged in violation of the Rehabilitation Act of 1973
and Title VII of the Civil Rights Act of 1964. On summary
judgment, the court found in favor of the Army. Handy now
appeals that decision. We AFFIRM the decision of the
district court.
I. FACTUAL BACKGROUND
Plaintiff-Appellant James D. Handy (“Handy”) was a
civilian employee at Fort Hood, Texas from 1980 to 1996.1
From 1980 to 1986, Handy worked as a telephone mechanic. In
1986, Handy suffered a severe knee injury in a car accident.
The injury prevented him from returning to work. In 1990,
Handy had knee replacement surgery, which subsequently
allowed him to return to work in 1992.
When Handy returned to work he was subject to certain
physical restrictions. His medical profile limited him to
walking three hours per day; climbing, squatting, kneeling,
1
Handy had also worked at Fort Hood in the 1970's while on
active duty in the Army.
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twisting, and standing for two hours per day; and lifting
objects no more than twenty pounds. When he returned, the
only vacant position in Handy’s old department was that of
“telephone worker.” His former position of mechanic had the
same basic job duties as this new position, although the old
position involved less direct supervision. Both jobs were
informally called “telephone installer.” Handy accepted
this position in November 1992, subject to modifications
required by his medical profile. In June 1993, Handy filed
an equal employment opportunity complaint claiming that the
Army discriminated against him by giving him a lower-grade
work title upon his return. Handy’s complaint led to his
reappointment as a mechanic.2
For the first three years of his return, Handy
primarily worked at North Fort Hood. But in December 1995,
a backlog of work orders on the main post required all
telephone installers to work on the main post. Although his
supervisors reassured him that his work on the main post
would not violate his 1992 medical profile, Handy was
nevertheless concerned that working on the main post would
2
In May 1993, the position of “telephone mechanic” had its
title changed to “telecommunications mechanic.” However, the
duties of the position remained the same. For the sake of
consistency, we will continue to refer to the position as
telephone mechanic.
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force him to climb too many stairs. In February 1996, Handy
received a new medical profile that drastically increased
his physical limitations. His new medical profile limited
him to climbing stairs, kneeling, bending, stooping, or
twisting for ten minutes per day; carrying up to ten pounds
for one hour per day; carrying up to twenty pounds for a
half hour per day; and standing or walking for two hours per
day. These new restrictions made it impossible for Handy to
perform the work of a telephone mechanic.
Handy’s supervisors soon began looking for a different
position for him that could be tailored to meet his physical
restrictions. During this search period, he performed
limited work duties and continued to receive his full
salary. In late February 1996, while the search was
ongoing, Handy suffered a heart attack and spent the next
several months recovering. On March 26, while Handy was
recuperating, he was notified that there were no vacant
positions for which he was qualified.
Handy returned to work on June 18. Upon his return,
Handy submitted a worker’s compensation claim, but his claim
was denied. As an alternative, he submitted an application
for disability retirement. However, the United States Office
of Personnel Management (OPM) refused to process the
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application without documentation that Handy was going to be
terminated. On July 8, Handy’s supervisor signed a letter
that proposed to terminate Handy. After Handy received the
notice of proposed termination, he met with Lieutenant
Colonel Scott Lofgren (“Lt. Col. Lofgren”) and presented a
letter from his doctor, Edward Lewis, dated July 11. This
letter stated in relevant part: “Let me say again that the
profile date, January 18, 1996 is for a specific job as [a
telephone mechanic]. He was never able to do that job from
the very beginning of his re-employment.” Handy met with
Lt. Col. Lofgren again on July 16. At this meeting, Lt.
Col. Lofgren concluded that the January 1996 medical profile
was still operative and that Handy was unable to perform the
job of telephone mechanic. On September 4, 1996, OPM
approved Handy’s application for disability retirement. The
retirement was made effective September 9. On October 3,
the Army notified Handy that it would cancel the notice of
proposed termination, since he had already retired by that
point.
II. PROCEDURAL BACKGROUND
On November 8, 2002, after exhausting his
administrative remedies, Handy filed suit in the United
States District Court for the Western District of Texas
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alleging that the Army violated the Rehabilitation Act of
1973, 29 U.S.C. § 791 et seq., and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-16. Once discovery
was completed, the Army moved for summary judgment. On
April 7, 2004, the district court granted the Army’s summary
judgment motion. On the Rehabilitation Act claim, the court
found that Handy failed to establish both that he suffered
an adverse employment decision and that he is an otherwise
qualified individual with a disability. On the retaliation
claim, the District Court found both that Handy failed to
establish that he suffered an adverse employment decision
and that he failed to show a causal connection between his
protected activity in 1993 and his retirement in 1996.
Handy now appeals the district court’s decision.
III. ANALYSIS
A. Standard of Review
We review a district court’s grant of summary judgment
de novo, applying the same legal standards as the district
court. See Fierros v. Tex. Dept. of Health, 274 F.3d 187,
190 (5th Cir. 2001). Summary judgment is appropriate if
there are no genuine issues of material fact and the movant
is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); FED.R.CIV.P. 56 (c).
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The initial burden to demonstrate the absence of a genuine
issue of material fact is on the movant. Id. at 323. Upon
showing that there is an absence of evidence to support an
essential element of the non-movant’s case, the burden
shifts to the non-movant to establish that there is a
genuine issue of material fact. Id. at 324.
B. Disability Discrimination Claim
The Rehabilitation Act prohibits discrimination against
an otherwise qualified individual with a disability in
programs that receive federal funding. 29 U.S.C.
§ 794(a); Kapche v. City of San Antonio, 176 F.3d 840, 844
n.27 (5th Cir. 1999). To establish a claim under the
Rehabilitation Act, a plaintiff must show that he: (1) is an
individual with a disability; (2) is otherwise qualified to
perform the job; (3) was employed in a program or activity
that receives federal funding; and (4) was discriminated
against solely because of his disability. Hileman v. City
of Dallas, 115 F.3d 352, 353 (5th Cir. 1997); Chandler v.
City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993).
If this prima facie case is made, courts then apply the
familiar McDonnell Douglas burden shifting analysis.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
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(1973).3 The burden then shifts to the defendant to produce
evidence of a nondiscriminatory reason for the employment
action. Id. If such evidence is proffered, the burden of
production then shifts back to the plaintiff to show that
the nondiscriminatory justification was mere pretext. Id.Handy failed to make a prima facie showing of
discrimination. Specifically, Handy failed to present
evidence raising a material issue of fact as to whether he
is otherwise qualified to carry out the duties of a
telephone mechanic. To determine whether an employee is
otherwise qualified, we conduct a two-step inquiry. First,
3
Although the Fifth Circuit has not, in a published opinion,
explicitly applied the McDonnell Douglas framework to
discrimination claims brought under the Rehabilitation Act, every
other circuit except the First and Eleventh has done so. Reg’l
Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d
35, 48-50 (2d Cir. 2002), cert. denied, 537 U.S. 813 (2002);
Antol v. Perry, 82 F.3d 1291, 1299 (3d Cir. 1996); Ennis v. Nat’l
Ass’n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 57-58 (4th Cir.
1995); Burns v. City of Columbus, Dep’t of Pub. Safety, Div. of
Police, 91 F.3d 836, 843-44 (6th Cir. 1996); Tyler v. Runyon, 70
F.3d 458, 467 (7th Cir. 1995); Peebles v. Potter, 354 F.3d 761,
766 (8th Cir. 2004); Mustafa v. Clark County Sch. Dist., 157 F.3d
1169, 1175-76 (9th Cir. 1998)(per curiam); Williams v. Widnall,
79 F.3d 1003, 1005 & n.3 (10th Cir. 1996); McGill v. Munoz, 203
F.3d 843, 845 (D.C. Cir. 2000). Additionally, at least one
district court in the Fifth Circuit has also applied the
framework to a Rehabilitation Act case, citing precedent from
other circuits. Burciaga v. West, 996 F. Supp. 628, 634 (W.D.
Tex. 1998). Since Handy cannot make the prima facie
discrimination case, the potential applicability of the burden
shifting framework is not at issue in the instant case.
Assuming, arguendo, Handy had sustained his initial burden, we
would then apply the burden shifting framework.
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we determine whether the employee can perform the core
functions of the job. Chandler, 2 F.3d at 1393. Second, if
the employee is unable to perform the core functions, we
must ask whether reasonable accommodations would enable the
employee to do so. Id. at 1393-94. Ultimately, the
plaintiff has the burden of showing that he is otherwise
qualified. Id. at 1394.
As to the first step of the otherwise qualified
inquiry, it is clear that Handy could not perform the core
functions of a telephone mechanic. As for the second step,
based on his 1996 medical profile, Handy’s physical
limitations were so significant that no reasonable
accommodations could have allowed him to perform the
essential functions of his job. Further, Handy has failed to
identify what accommodations could have been afforded to him
that were withheld. As the plaintiff, he has the burden to
identify such accommodations. Johnson v. Gambrinus
Co./Spoetzl Brewery, 116 F.3d 1052, 1059 n.4 (5th Cir.
1997).
Handy also failed to present evidence raising a
material issue of fact as to whether he was discriminated
against solely because of his disability. In this case, the
alleged discrimination arose from the circumstances
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surrounding the termination of his employment. Because
Handy resigned, it can not be said that the Army directly
discriminated against him. Nevertheless, Handy claims that
he suffered from a constructive discharge. Under the
constructive discharge doctrine, an employee’s decision to
resign due to intolerable working conditions is tantamount
to formal discharge. Pennsylvania State Police v. Suders,
124 S.Ct. 2342, 2351–52, __ U.S. __ (2004). The inquiry
focuses on the objective question: “Did working conditions
become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign?”
Id. at 2351. There is nothing in the record to suggest that
Handy was subjected to intolerable working conditions. At
every turn, Handy’s supervisors accommodated him and
scrupulously honored his medical restrictions.
Handy also cannot prove that he resigned under duress.
He claims that he faced the choice of possibly losing his
job altogether or seeking disability retirement, in which
case he would lose some benefits and his income would be
reduced. Under these circumstances, he claims, he had no
choice but to seek disability retirement. To prove that a
government employee resigned under duress, the employee must
prove that: (1) he involuntarily accepted the terms of his
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resignation; (2) under the circumstances, he had no other
alternative but to resign; and (3) the circumstances of his
resignation were the result of the government’s coercive
acts. United States v. Thompson, 749 F.2d 189, 194 (5th
Cir. 1984). As to the second element, Handy had two
options. He could have retired, as he chose to do, or he
could have waited to see if a job for which he was qualified
became available before the Army eventually terminated his
employment. As one court has stated, “[m]erely because
plaintiff was faced with an inherently unpleasant situation
in that her choice was arguably limited to two unpleasant
alternatives does not obviate the voluntariness of her
resignation.” Christie v. United States, 518 F.2d 584 (Cl.
Ct. 1975). Regarding the third element, the Army’s sending
the notice of proposed termination was not a coercive act
since Handy received the notice upon his own request.
C. Retaliation
Handy also claimed that his dismissal was in
retaliation for his 1993 equal employment opportunity
complaint. To prove retaliation, a plaintiff must establish
that: (1) he was engaged in activity protected by Title VII;
(2) he suffered an adverse employment action; and (3) there
was a causal connection between the protected activity and
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the adverse action. Foley v. Univ. of Houston Sys., 355
F.3d 333, 339 (5th Cir. 2003). As with the discrimination
claim, once the prima facie case is made, the McDonnell
Douglas framework applies. Fabela v. Socorro Indep. Sch.
Dist., 329 F.3d 409, 415 (5th Cir. 2003).
Handy’s 1993 complaint satisfies the first element of
the prima facie retaliation case. However, the other two
elements are not met. The second element cannot be met
because Handy did not suffer from an adverse employment
action. As discussed above, he voluntarily resigned. Handy
has also failed to raise a material issue as to the third
element of the prima facie retaliation case, i.e., the
causal connection between his earlier protected activity and
his alleged wrongful discharge. Handy points to a statement
made in a memorandum written by Lt. Col. Lofgren as evidence
of reprisal. Lt. Col. Lofgren wrote: “We have attempted to
work with Mr. Handy but have been threatened with lawsuits
and EEO complaints.” With this as his only piece of
evidence, Handy cannot prove retaliation. This statement
does nothing to reflect a retaliatory motive. It merely
documents the difficulties Handy has created for those
attempting to accommodate him.
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IV. CONCLUSION
For the foregoing reasons, the decision of the district
court is AFFIRMED.
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