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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