                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              JUN 15 1999
                                  TENTH CIRCUIT
                             __________________________                  PATRICK FISHER
                                                                                  Clerk

 JERRY W. ANTHONY,

           Plaintiff-Appellant,

 v.                                                         No. 98-6188
                                                           (W.D. Okla.)
 CITY OF CLINTON, a municipal                          (D.Ct. No. 97-CV-888)
 corporation,

           Defendant-Appellee.
                         ____________________________

                              ORDER AND JUDGMENT *


Before ANDERSON, BRORBY, and MURPHY, Circuit Judges.



       Appellant Jerry W. Anthony appeals the district court’s entry of summary

judgment in favor of the City of Clinton on his discrimination claims under the

Americans with Disabilities Act, 42 U.S.C. § 12101      et seq., and the Oklahoma

Anti-Discrimination Act, Okla. Stat. tit. 25, § 1101    et seq. Mr. Anthony contends

the City of Clinton subjected him to a hostile work environment and




       *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
constructively discharged him because of a perceived disability. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.



                                  I. Background

      The City of Clinton (“the City”) hired Mr. Anthony as a police officer in

1990. In 1993, the City assigned Mr. Anthony to the Criminal Investigation

Division under the immediate supervision of Lt. Bryan Rizzi. Captain Ken

Thiessen and Chief of Police Bill Weedon also supervised Mr. Anthony. During

his tenure with the Criminal Investigation Division, Lt. Rizzi counseled Mr.

Anthony for various performance deficiencies and at one point formally

reprimanded him for entering false information on an official police report.

Nonetheless, prior to 1996, Lt. Rizzi rated Mr. Anthony’s performance as either

“very good” or “satisfactory” on annual reviews. Chief Weedon considered Mr.

Anthony to be an “average officer” prior to 1996.



      In March 1996, Mr. Anthony admitted himself to a hospital for treatment of

depression. Mr. Anthony continued to recuperate and receive therapy for his

condition for several weeks after his discharge from the hospital. During his

leave of absence, Lt. Rizzi notified Chief Weedon that Mr. Anthony failed to

obtain adequate authorization for his leave of absence and to adequately notify the


                                        -2-
City of his whereabouts and therefore recommended Mr. Anthony be terminated

for abandonment of position. Chief Weedon declined to follow Lt. Rizzi’s

recommendation and allowed Mr. Anthony to return to work on June 3, 1996,

after three physicians certified him fit for service. Upon Mr. Anthony’s return to

work, Mr. Anthony alleges Lt. Rizzi subjected him to various forms of harassment

including heightened supervision, unwarranted criticism of his work, and various

incidents of “verbal abuse.” At one point, Lt. Rizzi allegedly told Mr. Anthony

his illness damaged his reputation and no one wanted to work with him because of

his instability and untrustworthiness. Lt. Rizzi also completed Mr. Anthony’s

annual review and rated his performance as “needs improvement.” Both Lt. Rizzi

and Chief Weedon admit they believed Mr. Anthony was still suffering from

depression after his return to work. Lt. Rizzi further admits he felt depression

substantially interfered with Mr. Anthony’s ability to be a police officer.



      Approximately three weeks after Mr. Anthony’s return to work, Ms. Doris

Burden, a witness in a case Mr. Anthony had previously investigated, accused Mr.

Anthony of tampering with a photographic lineup.    1
                                                        Mrs. Burden was scheduled to



      1
        The City originally assigned Mr. Anthony to investigate Ms. Burden’s burglary
complaint in the summer of 1995. Lt. Rizzi assumed responsibility for the case during
Mr. Anthony’s leave of absence.


                                          -3-
testify at a preliminary hearing in the case on June 27, 1996. However, on the

morning of the hearing, Ms. Burden informed two assistant district attorneys she

feared testifying because she could not identify the suspect. When asked about

her prior positive identification at a photo lineup conducted by Mr. Anthony in

1995, Mr. Burden said she had initially been unable to identify the suspect in the

photo lineup and that Mr. Anthony became angry with her for “blowing the case”

and then pointed out the correct picture to her.    2
                                                        The District Attorney’s office

informed Chief Weedon and Lt. Rizzi that Mr. Anthony might be charged with

subornation of perjury and recommended a full investigation. District Attorney

Richard Drugger also made it clear Mr. Anthony no longer had any credibility in

the district attorney’s office.



       On July 1, 1996, Chief Weedon, Captain Thiessen and Lt. Rizzi met with

Mr. Anthony to discuss the situation. Chief Weedon informed Mr. Anthony of the

accusations and the possibility of subornation of perjury charges. The Chief

presented Mr. Anthony with two options: resign, or face an internal investigation.

Mr. Anthony took that afternoon and evening to consider his options. He sought


       2
          Ms. Burden signed a statement recounting her version of the photo lineup. Ms.
Karen Miller, also a participant in the photo lineup, told an investigator from the District
Attorney’s office that Ms. Burden related the same version of events to her immediately
after the lineup.


                                             -4-
the advice of his family, a physician, an attorney, and a local judge. The next

morning, Mr. Anthony met with Chief Weedon and signed a resignation letter.

Chief Weedon admits he advised Mr. Anthony that, regardless of the possible

perjury charges and internal investigation, he should resign for his own personal

health since he had not completely recovered from the depression.



      Mr. Anthony filed suit, arguing the City created a hostile work environment

and constructively discharged him by offering a “Hobson’s choice” between

resigning or facing an internal investigation because of his perceived disability of

depression. The district court granted the City’s motion for summary judgment,

concluding Mr. Anthony failed to present sufficient evidence showing the City’s

conduct amounted to a constructive discharge or that he resigned because of

alleged harassment. The court dismissed Mr. Anthony’s state law claim for the

same reasons. On appeal, Mr. Anthony argues: (1) he presented sufficient factual

disputes concerning his claims of constructive discharge and hostile work

environment to survive summary judgment, and (2) the district court erred in

refusing to allow him to amend his Complaint to include a claim for punitive

damages under the Oklahoma Anti-Discrimination Act and in finding the City

immune from any punitive damage claims.




                                         -5-
       We review the district court’s grant of summary judgment de novo,

applying the same legal standard as the district court.    White v. York Int’l Corp. ,

45 F.3d 357, 360 (10th Cir. 1995). We “examine the record to determine if any

genuine issue of material fact was in dispute; if not, we determine if the

substantive law was correctly applied.”      Applied Genetics Int’l, Inc. v. First

Affiliated Sec., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990). In applying this

standard, we view the factual record and inferences therefrom in the light most

favorable to the nonmoving party.      Tomsic v. State Farm Mut. Auto, Ins. Co.      , 85

F.3d 1472, 1476 (10th Cir. 1996). However, to survive summary judgment, the

nonmoving party may not rest upon the allegations or denials of his pleadings, but

must set forth specific facts through admissible evidence showing there is a

genuine issue for trial.   Panis v. Mission Hills Bank , 60 F.3d 1486, 1490 (10th

Cir. 1995). Summary judgment is appropriate “[i]f a reasonable trier of fact could

not return a verdict for the nonmoving party.”      White , 45 F.3d at 360.



                                       II. Discussion

       The Americans with Disabilities Act provides “[n]o covered entity shall

discriminate against a qualified individual with a disability because of the

disability of such individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job training,


                                             -6-
and other terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). To state a claim under the Americans with Disabilities Act, Mr.

Anthony must establish: (1) he is a disabled person within the meaning of the

Americans with Disabilities Act; (2) he is qualified, that is, able to perform the

essential functions of the job with or without reasonable accommodation; and (3)

his employer discriminated against him in its employment decision because of his

alleged disability.   Pack v. Kmart Corp. , 166 F.3d 1300, 1304 (10th Cir. 1999),

petition for cert. filed , (U.S. May 5, 1999) (No. 98-1784). The district court

declined to address the first two elements, deciding instead to base its decision

solely on Mr. Anthony’s failure to meet the third element.   3
                                                                 Accordingly, for

purposes of this appeal, we assume Mr. Anthony established the first two

elements of his claim and focus our analysis on the third element – whether Mr.

Anthony demonstrated that there is a genuine issue of material fact as to whether

the City created a hostile work environment or constructively discharged him

because of his perceived disability.



A. Hostile Work Environment

       Mr. Anthony contends the district court erred in failing to fully consider his


       3
         We note Mr. Anthony does not claim he is actually disabled under the American
with Disabilities Act. Instead, he argues the City regarded him as disabled by mental
illness.

                                           -7-
hostile work environment claim. In its Order, the district court reviewed Mr.

Anthony’s allegations of harassment and intolerable working conditions, but only

in the context of a constructive discharge claim. The court did not specifically

apply the elements of a hostile work environment claim to Mr. Anthony’s

evidence. Nonetheless, we exercise our discretion to review the claim because it

can be resolved on the basis of undisputed facts and for substantially the same

reasons applicable to Mr. Anthony’s constructive discharge claim.      See Sanchez v

Denver Publ. Sch. , 164 F.3d 527, 532 (10th Cir. 1998).



      The Tenth Circuit has not previously recognized a hostile work

environment claim under the Americans with Disabilities Act. Other circuits have

acknowledged such a claim only for the sake of argument.       See Walton v. Mental

Health Ass’n , 168 F.3d 661, 666-67 (3d Cir. 1999);    McConathy v. Dr.

Pepper/Seven Up Corp. , 131 F.3d 558, 563 (5th Cir. 1998);     Wallin v. Minnesota

Dep’t of Corrections , 153 F.3d 681, 687-88 (8th Cir. 1998),    cert. denied , 119 S.

Ct. 1141 (1999); see also Keever v. City of Middletown     , 145 F.3d 809, 813 (6th

Cir.) (implicitly recognizing ADA hostile work environment claim in affirming

summary judgment for employer),     cert. denied , 119 S. Ct. 407 (1998). Because

we do not believe this is the appropriate case to make such a determination, we

follow our sister circuits in assuming without deciding that such a cause of action


                                          -8-
exists and the elements would be similar to those required under Title VII.          See,

e.g., Walton , 1999 WL 86818 at *3 (utilizing Title VII elements based on

similarities between Title VII and the ADA). Based on this assumption, to

survive summary judgment, Mr. Anthony must show “that a rational jury could

find that the workplace is permeated with discriminatory intimidation, ridicule,

and insult, that is sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.”             Penry v.

Federal Home Loan Bank , 155 F.3d 1257, 1261 (10th Cir. 1998) (discussing

elements of a Title VII sexual harassment claim based on a hostile work

environment theory) (quotation marks and citation omitted),         cert. denied , 119 S.

Ct. 1334 (1999). Mr. Anthony must also produce evidence that he was the object

of discrimination because of his perceived disability.        Id. The conduct must be

both objectively and subjectively abusive.         Lockard v. Pizza Hut, Inc. , 162 F.3d

1062, 1071 (10th Cir. 1998). Factors a court may consider include: “the

frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.”            Harris v.

Forklift Sys., Inc ., 510 U.S. 17, 23 (1993).



       Mr. Anthony has failed to meet this standard. As the district court noted,


                                             -9-
much of the evidence presented by Mr. Anthony amounts to conclusory

allegations that Lt. Rizzi “verbally assaulted” or “verbally harassed” him. Such

allegations are insufficient to raise a genuine issue of material fact. The

remaining specific incidents alleged by Mr. Anthony are not pervasive or severe

enough to amount to a hostile work environment. The alleged incidents occurred

over a short time period – approximately two weeks after subtracting Lt. Rizzi’s

vacation. Moreover, the record contains little evidence that a jury could construe

as disability-based slurs or ridicule.   See Trujillo v. University of Colorado   , 157

F.3d 1211, 1214 (10th Cir. 1998) (affirming summary judgment for employer on

Title VII hostile work environment claim where plaintiff presented no evidence of

racial comments or ridicule). None of the incidents appear physically threatening

or humiliating.   Harris , 510 U.S. at 23. While the evidence does show tension

existed between Lt. Rizzi and Mr. Anthony, such unpleasantries in the workplace

do not amount to a hostile work environment.       Trujillo , 157 F.3d at 1214

(“Normal job stress does not constitute a hostile or abusive work environment.”);

Penry , 155 F.3d at 1263 (affirming summary judgment of employee’s hostile work

environment claim where workplace was unpleasant but not “permeated with

discriminatory intimidation”). We therefore affirm summary judgment of Mr.

Anthony’s hostile work environment claim.




                                            -10-
B. Constructive Discharge

       Mr. Anthony’s second claim is that the City constructively discharged him

because of his perceived disability. On appeal, Mr. Anthony argues the district

court erred by (1) applying the wrong analytical framework in considering his

evidence, and (2) concluding he failed to establish constructive discharge. (       Id. at

24-30.) As to the first issue, we conclude the district court correctly applied the

McDonnell Douglas burden-shifting analysis to the facts of this case. As with

any employment discrimination case, Mr. Anthony may establish that his

employer discharged him in violation of the Americans with Disabilities Act by

direct or circumstantial evidence.    See Equal Employment Opportunity Comm’n v.

WilTel, Inc. , 81 F.3d 1508, 1513-14 (10th Cir. 1996). If he relies on

circumstantial evidence, the familiar burden-shifting analysis of       McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973) applies.         See Morgan v.

Hilti , 108 F.3d 1319, 1323 & n.3 (10th Cir. 1997) (applying        McDonnell Douglas

in the ADA context). If, however, Mr. Anthony presents direct evidence that

discriminatory animus played a motivating part in an employment decision,

McDonnell Douglas is inapplicable and the City may avoid liability “‘only by

proving by a preponderance of the evidence that it would have made the same

decision’ even in the absence of the discriminatory reason.”        WilTel , 81 F.3d at

1514 (quoting Price Waterhouse v. Hopkins , 490 U.S. 228, 258 (1989)). This


                                           -11-
method of proof is often referred to as a “mixed motive” analysis.



       Direct evidence of discrimination is evidence of “an existing policy which

itself constitutes discrimination” or, in other words, evidence that the employer

acted on his discriminatory beliefs in making the adverse employment decision.

Ramsey v. City & County of Denver        , 907 F.2d 1004, 1008 (10th Cir. 1990),   cert.

denied , 506 U.S. 907 (1992). Statements that are merely expressions of personal

opinion do not constitute direct evidence.      WilTel , 81 F.3d at 1514. Mr. Anthony

points to deposition testimony by Lt. Rizzi, Captain Thiessen, and Chief Weedon

as direct evidence of the City’s discriminatory motive. However, the vast

majority of these statements are personal opinions regarding Mr. Anthony’s

mental health and competency as a police officer – they do not show that any of

Mr. Anthony’s supervisors       acted on those opinions. Because such statements

would require a jury to infer a discriminatory motive, they are at most

circumstantial evidence of discriminatory intent.       Id.



       We find only one statement by Chief Weedon that could conceivably be

construed as direct evidence.    4
                                     In a “Memo for Personnel File” Chief Weedon



       In his brief, Mr. Anthony also relies on an alleged conversation between an
       4

Oklahoma Employment Security Commission officer and Chief Weedon in which Chief
Weedon told the Commission officer that the real reason he offered Mr. Anthony a choice

                                             -12-
summarized his meetings with Mr. Anthony on July 1 and 2, 1996:

       This meeting was called as a result of Sgt. Anthony’s investigation of
       a case and his filing an Affidavit of Probable Cause.... The District
       Attorney’s office wanted to file subordination [sic] of perjury against
       Sgt. Anthony. During this meeting Sgt. Anthony was advised of
       these charges and his work performance before and since he had
       returned from sick leave. (Severe depression and anxiety arising
       from his wife leaving him.)

              Sgt. Anthony was advised by me that he could do one of two
       things. (1), Go before a Review Board to look at all the allegations
       and also his work performance or (2), He could resign from the
       police department....

              ...

              Sgt. Anthony returned to my office and after discussing the
       situation, he asked me for my advise [sic]. I advised him regardless
       of the perjury charges and being taken before the Police Review
       Board, my advise [sic] to him was for his personal health, he still
       was not completely recovered from the severe depression. I told him



between resigning and facing an investigation was Mr. Anthony’s poor work
performance. Mr. Anthony claims the Commission officer recorded the conversation in
his case file. However, Mr. Anthony failed to provide us any reliable evidence of the
alleged conversation, such as a deposition transcript or a sworn affidavit by the
Commission officer. See Fed. R. Civ. P. 56 (requiring testimony supporting or opposing
summary judgment to be based on personal knowledge and in the form of a sworn
affidavit). Mr. Anthony’s rendition of the alleged conversation in his briefs amounts to a
“‘generalized, unsubstantiated, non-personal affidavit[],’” and we will not consider it on
summary judgment. Thomas v. International Bus. Mach., 48 F.3d 478, 485 (10th Cir.
1995) (quoting Stevens v. Barnard, 512 F.2d 876, 879 (10th Cir. 1975)); see also Jeffries
v. Kansas, 147 F.3d 1220, 1224 n.1 (10th Cir. 1998) (refusing to consider witness
statements where plaintiff failed to present evidence of the witness’ testimony in the form
of a deposition or sworn affidavit); Hayes v. Marriott, 70 F.3d 1144, 1147-48 (10th Cir.
1995) (refusing to grant summary judgment on the basis of a report containing unsworn
statements and lacking sworn affidavits based on personal knowledge of the relevant
events).

                                           -13-
       he needed to get out of law enforcement for awhile and get away
       from the stress. I did not think he would ever get any better if he did
       not.

       We conclude Chief Weedon’s memo is not direct evidence of a

discriminatory motive. Although the statement refers to Mr. Anthony’s sick leave

for “severe depression and anxiety” and Chief Weedon’s personal opinion

regarding Mr. Anthony’s mental health, it does not state Chief Weedon took an

employment action because of the depression. Such a conclusion requires an

inference by the factfinder and, therefore, the memo is at best circumstantial

evidence.



       Accordingly, we turn to the       McDonnell Douglas framework applicable to

cases relying on circumstantial evidence of discrimination.         See Morgan , 108 F.3d

at 1323 n.3 (“The McDonnell Douglas burden-shifting analysis is appropriate in

disability discrimination cases ... in which the plaintiff has no direct evidence of

discrimination and the employer disclaims reliance on the plaintiff’s disability for

an employment decision.”). The first step of the       McDonnell Douglas burden-

shifting analysis places the burden on Mr. Anthony to establish a        prima face case

of discrimination. In the context of a disability discrimination claim, Mr.

Anthony must show: (1) he is disabled according to the Americans with

Disabilities Act; (2) he is qualified,    i.e. , able to perform the essential functions of


                                             -14-
the job with or without accommodation; and (3) the employer (constructively)

discharged him under circumstances giving rise to an inference that the

termination was based on his disability.    Morgan , 108 F.3d at 1323. If he

establishes a prima facie case, the burden shifts to the City to offer a legitimate,

nondiscriminatory reason for the adverse employment action. The burden then

reverts to Mr. Anthony to show “that there is a genuine dispute of material fact as

to whether the employer’s proffered reason for the challenged action is

pretextual.” Randle v. City of Aurora , 69 F.3d 441, 451 (10th Cir. 1995). In this

case, the district court concluded Mr. Anthony failed to establish the third prong

of his prima face case because he failed to present sufficient evidence that the

City constructively discharged him. We agree.



       To prove constructive discharge, a plaintiff must allege sufficient facts to

demonstrate “‘the employer by its illegal discriminatory acts has made working

conditions so difficult that a reasonable person in the employee’s position would

feel compelled to resign.’”   Sanchez , 164 F.3d at 534 (quoting   Derr v. Gulf Oil

Corp. , 796 F.2d 340, 344 (10th Cir. 1986)). A slight variation of this standard

allows a plaintiff to prove constructive discharge by showing the employer,

through its discriminatory acts, forced the employee to choose between resigning

or being fired.   See Burks v. Oklahoma Publ’g Co.   , 81 F.3d 975, 978 (10th Cir.),


                                           -15-
cert. denied , 519 U.S. 931 (1996); Spulak v. K Mart Corp. , 894 F.2d 1150, 1154

(10th Cir. 1990). Of course, not every hard choice presented to an employee

amounts to constructive discharge. It is only when a reasonable person in the

employee’s position would feel forced into resigning through the imposition of

“unreasonably harsh conditions that have been applied to him in a discriminatory

fashion.” Spulak , 894 F.2d at 1154.



      Mr. Anthony argues a reasonable person in his position, considering the

totality of the circumstances, would feel compelled to resign because his only

other option was to be “professionally ruined” by a “questionable” investigation

conducted by supervisors who viewed him as mentally disabled. Specifically, Mr.

Anthony contends we should consider his choice in the context of the alleged

harassment and verbal abuse by Lt. Rizzi, his supervisors’ views of his mental

health and fitness for duty, and the fact that his supervisors would play key roles

in the internal investigation. However, after reviewing the record as a whole and

considering the totality of the circumstances, we conclude that while Mr. Anthony

undeniably faced an unpleasant and difficult choice, there is insufficient evidence

of a situation amounting to “unduly harsh and discriminatory treatment” that

would compel a reasonable person to resign.     Spulak , 894 F.2d at 1154.




                                         -16-
       The City had valid reasons for invoking its investigatory process, namely,

allegations of serious misconduct combined with possible subornation of perjury

charges and the District Attorney’s expressed lack of confidence in Mr.

Anthony’s credibility. Despite Mr. Anthony’s arguments to the contrary, we find

no evidence indicating the allegations against him were tainted or the threat of

subornation charges illegitimate.   5
                                        Moreover, Mr. Anthony admits Mrs. Burden’s

allegations, if true, warrant serious disciplinary action. Thus, the City’s

investigation into such allegations cannot be seen as unreasonable and, like the

district court, we refuse to adopt an interpretation of the Americans with



       5
          Ms. Burden signed a written statement recounting her version of the photo
lineup. Ms. Karen Miller, also a participant in the photo lineup, corroborated Ms.
Burden’s statement. Nonetheless, Mr. Anthony questions the credibility of Ms. Burden’s
allegations based on supposed “inconsistencies” in her statements. However, the only
“inconsistency” Mr. Anthony points to is that Ms. Burden originally signed a positive
identification of the suspect in 1995 and in 1996 signed a statement indicating she could
not identify the suspect. We fail to see how Ms. Burden’s inability to identify the suspect
in 1996 undercuts the truthfulness of her explanation for that inability, namely Mr.
Anthony’s alleged tampering. See United States v. Simons, 129 F.3d 1386, 1388 (10th
Cir. 1997) (stating irrelevant factual disputes will not defeat summary judgment).
Likewise, the mere fact that Lt. Rizzi wrote out Ms. Burden’s 1996 statement fails to
create an issue of material fact regarding the allegations, especially considering that Ms.
Breeden reviewed and signed the statement. Id.; Vitkus v. Beatrice Co., 11 F.3d 1535,
1539 (10th Cir. 1993) (stating summary judgment may be granted if the evidence
presented by the nonmovant is not significantly probative). Mr. Anthony also questions
the legitimacy of the threatened subornation charges by arguing Chief Weedon failed to
perform an adequate investigation. This argument defies common sense. Mr. Anthony
cannot question the legitimacy of the proposed investigation by arguing the City failed to
perform an investigation.


                                            -17-
Disabilities Act which would require an employer to ignore those types of

allegations merely because the employee involved is perceived as disabled,

especially where the same type of conduct would not be tolerated in non-disabled

employees.



       More important, the investigation was just that – an investigation. The

final disciplinary action, if any, remains unknown. Mr. Anthony admits the

investigation was only the first step in the police department’s established

procedure and that a review board consisting of five officers would ultimately

review the results and allow Mr. Anthony the opportunity to present evidence, call

witnesses, and make a statement on his behalf. Only after completion of this

process would Chief Weedon make a final decision based on the review board’s

recommendation. Mr. Anthony’s speculation that he would be “professionally

ruined” does not alter this conclusion.   See Simons , 129 F.3d at 1388 (stating

conclusory allegations made by the non-movant are insufficient to defeat

summary judgment). We also find little significance in Chief Weedon’s statement

that a review board would evaluate Mr. Anthony’s performance both before and

after his leave of absence. The Americans with Disabilities Act prohibits

employers from discriminating against employees who are otherwise qualified to

perform the job. 42 U.S.C. § 12112(a). It does not prevent an employer from


                                          -18-
evaluating an employee’s performance. Moreover, a review board could

legitimately inquire into Mr. Anthony’s fitness to perform the essential functions

of his job. See 42 U.S.C. § 12112(d)(4)(A);    Roe v. Cheyenne Mountain

Conference Resort, Inc. , 124 F.3d 1221, 1229 (10th Cir. 1997) (“The ADA

explicitly prohibits employers from making disability-related inquiries of

employees, unless the inquiry is job-related or consistent with business

necessity .” (Emphasis added.))



      The circumstances surrounding the investigation also fail to establish a

situation so harsh and discriminatory that it would compel a reasonable person to

resign. Mr. Anthony’s working conditions, including the alleged harassment by

Lt. Rizzi, do not amount to a hostile work environment. Likewise, those same

circumstances are not serious enough to somehow transform an otherwise

legitimate investigation into an intolerable option no reasonable person would

pursue, even assuming Lt. Rizzi would have played some role in the investigation.

See Sanchez , 164 F.3d at 534 (affirming dismissal of plaintiff’s constructive

discharge claims where conditions of employment did not amount to a hostile

work environment); Bolden v. PRC Inc. , 43 F.3d 545, 552 (10th Cir. 1994)

(same), cert. denied , 516 U.S. 826 (1995); see also Boze v. Branstetter , 912 F.2d

801, 805 (5th Cir. 1990) (“Referring a disgruntled employee to an internal


                                        -19-
grievance process could never constitute the intolerable work conditions

necessary to establish constructive discharge.”). Similarly, Chief Weedon’s role

in the disciplinary process and his personal recommendation that Mr. Anthony

quit do not establish conditions so desperate or oppressive that a reasonable

person would be compelled to resign. We also note that, while Mr. Anthony

argues the City coerced his choice, the evidence shows he considered his options

overnight and obtained the advice of his family, a physician, a judge and an

attorney before tendering his resignation.     Cf. Arnold v. McClain , 926 F.2d 963,

966-67 (10th Cir. 1991) (finding no constructive discharge in a §1983 claim

where plaintiff police officer chose to resign rather than face criminal perjury

charges after considering his options for several hours and consulting with his

spouse and an attorney).



       Thus, even viewing the factual record and inferences therein in the light

most favorable to Mr. Anthony, we find his allegations of constructive discharge

insufficient to raise a genuine issue of material fact. Accordingly, we conclude

Mr. Anthony fails to establish a   prima facie case of discrimination under the

Americans with Disabilities Act. Mr. Anthony’s claim under the Oklahoma Anti-




                                             -20-
Discrimination Act fails for essentially the same reason.    6
                                                                 We therefore AFFIRM

the district court’s order granting summary judgment in favor of the City of

Clinton on all of Mr. Anthony’s claims.



                                          Entered by the Court:

                                          WADE BRORBY
                                          United States Circuit Judge




       6
           Similar to the Americans with Disabilities Act, the Oklahoma Anti-
Discrimination Act makes it unlawful to “fail or refuse to hire, to discharge, or otherwise
to discriminate against an individual with respect to compensation or the terms,
conditions, privileges or responsibilities of employment, because of ... handicap.” Okla.
Stat. tit. 25, § 1302(A)(1). Because Mr. Anthony presents insufficient evidence that the
City constructively discharged him or created a hostile work environment, the City is
entitled to summary judgment on this claim. Accordingly, we need not address his
arguments regarding punitive damages under the Oklahoma Anti-Discrimination Act. See
Griffin v. Davies, 929 F.2d 550, 554 (10th Cir.) (“We will not undertake to decide issues
that do not affect the outcome of a dispute.”), cert. denied, 502 U.S. 878 (1991).


                                           -21-
