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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.
1

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).
A "qualified individual with a disability
2 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
employees.
4 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.
7