               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                             No. 02-20437

                           Summary Calendar


PHILLIP D. BENKERT,

                                            Plaintiff-Appellant,

                                versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                            Defendant-Appellee.




           Appeal from the United States District Court
                For the Southern District of Texas
                     U.S.D.C. No. H-01-CV-3988

                           September 3, 2002



Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Phillip Benkert appeals the district court’s grant of summary

judgment in favor of the Texas Department of Criminal Justice

(“TDCJ”). Benkert brought suit alleging an unlawful retaliation and

constructive discharge by the TDCJ, his employer.     For the reasons

stated below, we affirm.


     *
      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opinion should not be published and is not precedent except under the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.
     In 1996, while employed by the TDCJ, Benkert filed a written

report of unlawful employment violations committed by his supervisor.

Benkert alleges that a pattern of unlawful retaliation resulted,

including failure to promote, forced work on extended shifts, and

denial of his request for a leave of absence.    As a result of the

alleged hostile work environment, Benkert alleges that he was forced

to seek medical attention and eventually took a medical leave of

absence in August 1998.   Following a proper filing with the Equal

Employment Opportunity Commission (“EEOC”), Benkert brought an

employment discrimination suit against the TDCJ in federal district

court in December 1998, alleging unlawful retaliation.    While this

first suit was pending, Benkert asserts that he attempted to arrange

to return to work for the TDCJ under “suitable working conditions”.

According to Benkert, when it became clear that the TDCJ would not

remedy the unlawful employment violations, he resigned from his

position with the TDCJ in June 2000. In January 2001, the first suit

was dismissed with prejudice on Benkert’s motion.

     In April of 2001, more than 2 years after taking medical leave,

but less than 300 days after he resigned, plaintiff filed a second

EEOC complaint.    After receiving proper notice from the EEOC,

Benkert, acting pro se, filed the present suit on November 15, 2001.

The complaint alleges unlawful retaliation and constructive discharge

by the TDCJ based on the events described above. The district court

granted the TDCJ’s motion for summary judgment, concluding that



                                 2
Benkert’s claims were barred based on res judicata and statute of

limitations, and we agree.

     We review the district court’s grant of summary judgment de

novo.1    Appellant’s claims based on retaliation prior to his taking

medical leave are barred under res judicata.2          Benkert makes vague

allegations that, subsequent to his taking medical leave, the TDCJ

would    do   nothing   to   remedy   the   alleged   unlawful   employment

violations.     He therefore asserts that the constructive discharge

occurred when he resigned, and is within 300 days of filing the EEOC

complaint. These allegations are not sufficient to raise a genuine

issue of material fact.3 We conclude, as did the district court, that

any claim of constructive discharge accrued when he left the TDCJ on

leave and did not return, not when he formally resigned.4 The events

leading to any constructive discharge occurred prior to his taking

medical leave, more than two years before his filing the second

complaint with the EEOC. Therefore, even if a claim of constructive

discharge is not barred by res judicata, it is barred because it was




     1
      Hanks v. Transcon. Gas Pipe Line Corp., 953 F.2d 996, 997 (5th
Cir. 1992).
     2
         Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000).
     3
      Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th
Cir. 1998).
     4
      Hunt v. Rapides Healthcare Sys., LLC., 277 F.3d 757, 771 (5th
Cir. 2001).

                                      3
not timely filed with the EEOC.5   The judgment of the district court

is therefore AFFIRMED.




     5
      See 42 U.S.C. § 2000e-5(e) (1994); Huckabay v. Moore, 142 F.3d
233, 238 (5th Cir. 1998).

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