IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________________________
No. 99-30047 _______________________________________
JOSEPH F. LABIT and LORRAINE F. LABIT,
Plaintiffs-Appellants,
versus
AKZO NOBEL SALT, INC., HARRY H. ANDERSON, and JIMMY L. FIRTH,
Defendants-Appellees. _________________________________________________
Appeal from the United States District Court for the Western District of Louisiana (97-CV-2415) _________________________________________________
February 7, 2000
Before FARRIS*, WIENER and STEWART, Circuit Judges.
PER CURIAM:**
In this appeal from the district court’s grant of partial
summary judgment to the Defendants-Appellees Akzo Nobel Salt, Inc.
(“Akzo”), Harry H. Anderson, and Jimmy L. Firth, and its denial of
partial summary judgment to Plaintiffs-Appellants Joseph F. Labit
(“Labit”) and his wife, Lorraine F. Labit, we must determine
whether Labit suffered employment discrimination on the basis of a
disability under the Americans with Disabilities Act (“ADA”) and
* Circuit Judge of the 9th Circuit, sitting by designation. ** Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
1 Louisiana Revised Statute 23:301 et seq.1 Labit alleged that he
suffered employment discrimination in the forms of hostile work
environment, failure reasonably to accommodate, and constructive
discharge. We reverse in part and affirm the judgment.
I. Standard of Review
We review the district court’s grant of summary judgment de
novo, applying the same standard as that court.2 “By its very
terms, this standard provides that the mere existence of some
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”3 Here, the
district court was not required to deny the defendants’ motion for
summary judgment and conduct a full-blown jury trial merely because
Labit came forward with some evidence to support his claim, unless
that evidence would be sufficient to support a jury verdict in his
favor.4
II. Cleveland Presumption
1 Louisiana courts apply federal jurisprudence to assess discrimination claims under Louisiana Revised Statute 23:301 et seq.; thus we will consider the claims simultaneously. See Craven v. Universal Life Ins. Co., 670 So.2d 1358, 1362 (La. App. 1996); Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989) 2 Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995). 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis added). 4 See id. at 251 (citing Improvement Co. v. Munson, 14 Wall. 442, 448 (1872)).
2 We reverse in part to correct the district court’s application
of our short-lived precedent, which the Supreme Court reversed
after summary judgment was rendered in the instant case. The
district court concluded that, under our decision in Cleveland v.
Policy Management Systems Corp.,5 Labit could not claim he was a
“qualified individual with a disability” because he had claimed
total disability for purposes of obtaining social security
disability benefits. In Cleveland, we held that “the application
for or the receipt of both long-term and social security disability
benefits creates a rebuttable presumption that the claimant or
recipient of such benefits is judicially estopped from asserting
that he is a ‘qualified individual with a disability.’”6 Applying
that rule, the district court in Labit’s case found that he had
applied for and received both long-term disability benefits from
his employer and social security disability benefits, yet failed
here to provide any additional evidence to rebut the presumption
that he was totally disabled.
After the district court’s decision, the Supreme Court
reversed our decision in Cleveland, holding that claims for social
security disability benefits and claims for damages under the ADA
do not so inherently conflict that courts should apply a negative
presumption that receipt of such benefits estops the recipient from
pursuing an ADA claim.7 Instead, the Court requires plaintiffs to
5 120 F.3d 513 (5th Cir. 1997), rev’d 119 S. Ct. 1597 (1999). 6 Id. at 518. 7 119 S. Ct. at 1600.
3 reconcile such claims; and it provided several examples of how they
might coexist. For instance, the ADA definition of a “qualified
individual with a disability” requires consideration of the
individual’s ability to perform the essential job functions with or
without reasonable accommodation8 but social security disability
determinations do not take into account such workplace
accommodations.9
In light of the facts that Labit (1) suffers a significant
physical impairment or “disability” in the form of traumatic
amputation of one arm, which condition existed prior to his
employment with Akzo, (2) nevertheless maintained employment in
various capacities with Akzo from 1974 to 1996 with reasonable
accommodations for his disability, and (3) was approved for long-
term disability benefits from Provident Insurance Company and the
Social Security Administration after ceasing to work for Akzo, we
are satisfied that his claims for damages under the ADA and his
receipt of disability benefits “can comfortably exist side by
side.”10 Any friction between those two positions derives, it would
seem, not from Labit’s claiming to be a “qualified” individual,
able to perform the essential job functions – he clearly did so for
over twenty years – but rather from his subsequently claiming to be
8 42 U.S.C. § 12111(9)(B). 9 119 S. Ct. at 1602. 10 Id.
4 totally disabled, i.e., unable to work.11 The correctness of the
decisions to grant him such benefits, however, is not before us.
Having concluded that Labit is not estopped to claim he is
disabled within the meaning of the ADA, we proceed to consider the
merits of his discrimination claims. Despite its now-erroneous
holding under Cleveland, the district court assumed arguendo that
Labit could seek damages under the ADA and proceeded in the
alternative to assess the merits of his discrimination claims,
finding each without adequate evidentiary support to survive
summary judgment. We agree with, and incorporate by reference, the
reasoning and result in that alternative disposition of the case.
III. Discrimination Claims
First, we agree that the only condition described by Labit
that constitutes a “disability” within the meaning of the statute12
is the absence of one arm, the result of amputation that preceded
his employment with Akzo. Congress specifically excluded
compulsive gambling as a disability under the Act.13 Other than
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________________________
No. 99-30047 _______________________________________
JOSEPH F. LABIT and LORRAINE F. LABIT,
Plaintiffs-Appellants,
versus
AKZO NOBEL SALT, INC., HARRY H. ANDERSON, and JIMMY L. FIRTH,
Defendants-Appellees. _________________________________________________
Appeal from the United States District Court for the Western District of Louisiana (97-CV-2415) _________________________________________________
February 7, 2000
Before FARRIS*, WIENER and STEWART, Circuit Judges.
PER CURIAM:**
In this appeal from the district court’s grant of partial
summary judgment to the Defendants-Appellees Akzo Nobel Salt, Inc.
(“Akzo”), Harry H. Anderson, and Jimmy L. Firth, and its denial of
partial summary judgment to Plaintiffs-Appellants Joseph F. Labit
(“Labit”) and his wife, Lorraine F. Labit, we must determine
whether Labit suffered employment discrimination on the basis of a
disability under the Americans with Disabilities Act (“ADA”) and
* Circuit Judge of the 9th Circuit, sitting by designation. ** 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.
1 Louisiana Revised Statute 23:301 et seq.1 Labit alleged that he
suffered employment discrimination in the forms of hostile work
environment, failure reasonably to accommodate, and constructive
discharge. We reverse in part and affirm the judgment.
I. Standard of Review
We review the district court’s grant of summary judgment de
novo, applying the same standard as that court.2 “By its very
terms, this standard provides that the mere existence of some
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”3 Here, the
district court was not required to deny the defendants’ motion for
summary judgment and conduct a full-blown jury trial merely because
Labit came forward with some evidence to support his claim, unless
that evidence would be sufficient to support a jury verdict in his
favor.4
II. Cleveland Presumption
1 Louisiana courts apply federal jurisprudence to assess discrimination claims under Louisiana Revised Statute 23:301 et seq.; thus we will consider the claims simultaneously. See Craven v. Universal Life Ins. Co., 670 So.2d 1358, 1362 (La. App. 1996); Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989) 2 Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995). 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis added). 4 See id. at 251 (citing Improvement Co. v. Munson, 14 Wall. 442, 448 (1872)).
2 We reverse in part to correct the district court’s application
of our short-lived precedent, which the Supreme Court reversed
after summary judgment was rendered in the instant case. The
district court concluded that, under our decision in Cleveland v.
Policy Management Systems Corp.,5 Labit could not claim he was a
“qualified individual with a disability” because he had claimed
total disability for purposes of obtaining social security
disability benefits. In Cleveland, we held that “the application
for or the receipt of both long-term and social security disability
benefits creates a rebuttable presumption that the claimant or
recipient of such benefits is judicially estopped from asserting
that he is a ‘qualified individual with a disability.’”6 Applying
that rule, the district court in Labit’s case found that he had
applied for and received both long-term disability benefits from
his employer and social security disability benefits, yet failed
here to provide any additional evidence to rebut the presumption
that he was totally disabled.
After the district court’s decision, the Supreme Court
reversed our decision in Cleveland, holding that claims for social
security disability benefits and claims for damages under the ADA
do not so inherently conflict that courts should apply a negative
presumption that receipt of such benefits estops the recipient from
pursuing an ADA claim.7 Instead, the Court requires plaintiffs to
5 120 F.3d 513 (5th Cir. 1997), rev’d 119 S. Ct. 1597 (1999). 6 Id. at 518. 7 119 S. Ct. at 1600.
3 reconcile such claims; and it provided several examples of how they
might coexist. For instance, the ADA definition of a “qualified
individual with a disability” requires consideration of the
individual’s ability to perform the essential job functions with or
without reasonable accommodation8 but social security disability
determinations do not take into account such workplace
accommodations.9
In light of the facts that Labit (1) suffers a significant
physical impairment or “disability” in the form of traumatic
amputation of one arm, which condition existed prior to his
employment with Akzo, (2) nevertheless maintained employment in
various capacities with Akzo from 1974 to 1996 with reasonable
accommodations for his disability, and (3) was approved for long-
term disability benefits from Provident Insurance Company and the
Social Security Administration after ceasing to work for Akzo, we
are satisfied that his claims for damages under the ADA and his
receipt of disability benefits “can comfortably exist side by
side.”10 Any friction between those two positions derives, it would
seem, not from Labit’s claiming to be a “qualified” individual,
able to perform the essential job functions – he clearly did so for
over twenty years – but rather from his subsequently claiming to be
8 42 U.S.C. § 12111(9)(B). 9 119 S. Ct. at 1602. 10 Id.
4 totally disabled, i.e., unable to work.11 The correctness of the
decisions to grant him such benefits, however, is not before us.
Having concluded that Labit is not estopped to claim he is
disabled within the meaning of the ADA, we proceed to consider the
merits of his discrimination claims. Despite its now-erroneous
holding under Cleveland, the district court assumed arguendo that
Labit could seek damages under the ADA and proceeded in the
alternative to assess the merits of his discrimination claims,
finding each without adequate evidentiary support to survive
summary judgment. We agree with, and incorporate by reference, the
reasoning and result in that alternative disposition of the case.
III. Discrimination Claims
First, we agree that the only condition described by Labit
that constitutes a “disability” within the meaning of the statute12
is the absence of one arm, the result of amputation that preceded
his employment with Akzo. Congress specifically excluded
compulsive gambling as a disability under the Act.13 Other than
those conditions, Labit describes only (1) a history of alcoholism
in remission that does not presently impair any major life
11 The Supreme Court also noted that an individual’s disability may change over time, so that a statement about a disability at the time of the social security application may not reflect the individual’s capacities at the time of the relevant employment decision. Cleveland, 119 S. Ct. at 1603. Labit asserts that his depression became worse after he left employment, which could explain the apparent inconsistency. 12 42 U.S.C. § 12102(2) (“a physical or mental disability that substantially limits one or more major life activities”). 13 42 U.S.C. § 12211(b)(2).
5 functions and (2) symptoms of depression. Labit contends that the
district court did not adequately consider those symptoms; however,
even if they were severe enough to be considered a “disability,”
they clearly did not rise to that level until after the alleged
discriminatory actions and thus cannot provide a basis for
recovery.
Second, Labit failed to create a genuine issue of material
fact on one or more elements of the hostile work environment claim,
assuming such a claim exists under the ADA. As we have done
before, we assume without deciding that such a claim exists14 but
affirm the district court’s conclusion that even if it does, the
plaintiff failed to create a genuine issue that the defendants’
actions were sufficiently severe or pervasive, or that they were
unwelcome. The record provides ample support for the district
court’s conclusion that Labit participated actively in a workplace
permeated with regular, reciprocal, and perhaps sometimes cruel
practical jokes and pranks (many of which had nothing to do with
Labit’s amputated arm) between men who maintained social
relationships in and out of work. Labit admitted that he initiated
jokes at his own expense, pulled pranks on others, and did not
perceive the conduct as harassment until he was in treatment for
compulsive gambling in 1996. Despite pointing to evidence that he
informally complained about the jokes on two occasions, the fact
that at least some jokes pertained to his relevant disability, and
14 McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998)
6 his own assertion that he initiated pranks against Anderson and
Firth only to retaliate, Labit nevertheless failed to establish a
genuine issue of material fact that would allow a reasonable jury
to find in his favor on the elements of a hostile work environment
claim.
Third, we affirm the district court’s conclusion as a matter
of law that Akzo provided reasonable accommodations to Labit’s
physical disability by allowing him to ask other workers to assist
with lifting and reaching objects in the storeroom and providing a
telephone headset. The law does not require an employer to accept
the accommodation preferred by the employee, such as the
installation of lower shelves requested by Labit, but only that the
accommodation is reasonable.15
Finally, we agree with the district court’s grant of summary
judgment on Labit’s constructive discharge claim, holding that he
failed to adduce evidence creating a genuine issue of material fact
that the working conditions were “so difficult or unpleasant that
a reasonable person in [his] shoes would have felt compelled to
resign.”16
IV. Conclusion
Based on our de novo review of the district court’s Memorandum
Ruling and Judgment, the summary judgment evidence revealed by the
record, and the legal arguments advanced in the appellate briefs
15 29 C.F.R. § 1630.9. 16 Landgraf v. USI Film Products, 968 F.2d 427, 430 (5th Cir. 1990).
7 and oral arguments of counsel, we conclude that the decision of the
district court granting summary judgment to the defendants,
dismissing the Labits’ complaint with prejudice, and declining to
retain supplemental jurisdiction over their remaining state law
claims, was correct in all respects except to the extent caused by
the Supreme Court’s post-judgment reversal of applicable precedent
during the pendency of this appeal. We therefore reverse in part
to correct the district court’s holding that Labit failed to rebut
the presumption that he was not a qualified individual with a
disability within the meaning of the ADA. We hold, instead -- as
did the district court in its alternative ruling -- that Labit was
disabled for purposes of that statute on the basis of his amputated
arm and, for essentially the same reasons as set forth in the well-
reasoned opinion of the district court, we affirm the dismissal of
his claims for disability discrimination by hostile work
environment, failure reasonably to accommodate, and constructive
discharge.
REVERSED IN PART; JUDGMENT AFFIRMED.