                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                           F I L E D
                                                          December 12, 2003
                    In the
                                                      Charles R. Fulbruge III
United States Court of Appeals                                Clerk
          for the Fifth Circuit
              _______________

                No. 03-30299
              Summary Calendar
              _______________



            WAYNE CLOUATRE,

                                   Plaintiff-Appellant,

                   VERSUS

             MARVIN RUNYON,
        POSTMASTER GENERAL; ET AL.,

                                   Defendants,

             MARVIN RUNYON,
            POSTMASTER GENERAL,

                                   Defendant-Appellee.


        _________________________

  Appeal from the United States District Court
     for the Eastern District of Louisiana
                m 97-3540-C
       _________________________
Before SMITH, DEMOSS, and STEWART,                           claimed that the Postal Service failed to ac-
  Circuit Judges.                                            commodate this disability and improperly ter-
                                                             minated his employment.
PER CURIAM:*
                                                                At the conclusion of the bench trial, the
   Wayne Clouatre appeals the dismissal of his               court entered judgment in favor of the Post-
claims under the Rehabilitation Act of 1973,                 master General and dismissed Clouatre’s claim
29 U.S.C. § 794.1 For reasons largely articu-                with prejudice, based on Clouatre’s failure to
lated in the opinion of the magistrate judge sit-            produce evidence indicating what kind of ac-
ting by agreement, we affirm.                                commodation the Postal Service should have
                                                             afforded.3 Even if one assumes that Clouatre
   Clouatre sued the Postmaster General, as-                 effectively notified the employer of his mental
serting that a pattern of harassment from his                disability,4 an employee has an obligation to
supervisors caused him to suffer substantially
and to develop a mental disability.2 Clouatre
                                                                2
                                                                 (...continued)
                                                             stress, his behavior became erratic, and he request-
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-          ed assistance for his deliveries. He eventually
termined that this opinion should not be published           sought psychiatric treatment.
and is not precedent except under the limited cir-
                                                                3
cumstances set forth in 5TH CIR. R. 47.5.4.                       To establish a prima facie claim of intentional
                                                             discrimination, a plaintiff must show “‘(1) he or
   1
      The Rehabilitation Act states, in part, “No            she suffers from a disability; (2) he or she is qual-
otherwise qualified individual with a disability in          ified for the job; (3) he or she was subject to an ad-
the United States, as defined in section 705(20) of          verse employment action; and (4) he or she was re-
this title, shall, solely by reason of her or his dis-       placed by a non-disabled person or was treated less
ability[,] be subjected to discrimination under any          favorably than non-disabled employees.’” Burch
program or activity receiving Federal financial as-          v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir.
sistance or . . . by the United States Postal Ser-           1997) (quoting Daigle v. Liberty Life Ins. Co., 70
vice.” 29 U.S.C. § 794(a). The statute tracks the            F.3d 394, 396 (5th Cir. 1995)). As part of proving
language of the Americans with Disabilities Act in           he is a “qualified individual,” a disabled plaintiff
determining whether a violation has occurred with            must illustrate that, “with or without reasonable
regard to an employment decision. 29 U.S.C.                  accommodation, [he] can perform the essential
§ 794(d).                                                    functions of the employment position [he] holds or
                                                             desires.” 42 U.S.C. § 12111(8).
   2
      Couatre displayed symptoms of depression
                                                                4
following complications arising from the unique                   The court, arguendo, assumed that a combi-
and substantial health problems of his daughter.             nation of Clouatre’s increasingly odd behavior and
After Richard Palisi became postmaster at Cloua-             his requests to management to “back off” sufficed
tre’s station, Palisi asked his employees to take on         to alert his supervisors that something warranted
additional workloads. Clouatre refused. Palisi and           their attention. See Taylor v. Phoenixville Sch.
other supervisors cited Clouatre for numerous tech-          Dist., 184 F.3d 296, 313-14 (3d Cir. 1999). Such
nical violations concerning the delivery of his mail;        odd behavior included switching delivery routes on
they rarely, if ever, cited other employees for sim-         a frequent basis, requesting help for routine deliv-
ilar violations. Clouatre complained of increased            eries, and substantially underperforming on the
                                        (continued...)                                               (continued...)

                                                         2
state how the employer may accommodate                        such an extent7 that the Postal Service could
him.5                                                         not have made any accommodation that would
                                                              have allowed him to remain in his position.
   Clouatre produced no evidence showing                      Consequently, the court did not err in finding
that he gave an indication to management as to                that Clouatre did not produce ample evidence
how it could accommodate him in a reasonable                  that he had notified the Postal Service of a
fashion. Although the Postal Service may not                  needed accommodation.8
have performed the most effective examination
of Clouatre, the court did not err in holding                    Thus, Clouatre failed to prove a claim un-
that the employer participated in the process of              der the Rehabilitation Act. Although the con-
exploring Clouatre’s condition.6 Additionally,                duct of his supervisors is troubling,9 Clouatre
as the court noted, at the time of Clouatre’s                 may not pursue his claim in this form.
termination, his mental state deteriorated to
                                                                 AFFIRMED.



   4
    (...continued)
amount of mail delivered in a shift. We do not ex-
                                                                 7
press an opinion as to whether one may notify an                   Shortly after Clouatre’s termination, a psychi-
employer of a disability merely through actions and           atrist who treated him diagnosed a disabling med-
informal statements rather than through a more for-           ication condition that precluded “useful service” in
malized declaration.                                          the Postal Service. Eventually, in interviews with
                                                              a psychiatrist, Clouatre made threatening state-
   5
       “Where the disability, resulting limitations,          ments against some of his former supervisors.
and necessary reasonable accommodations, are not
                                                                 8
. . . apparent to the employer, as is often the case               We review the court’s findings of fact for clear
when mental disabilities are involved, the initial            error and its legal conclusions de novo. Coggin v.
burden rests primarily upon the employee, or his              Longview Indep. Sch. Dist., 289 F.3d 326, 330
health-care provider, to specifically identify the dis-       (5th Cir. 2002).
ability . . . and to suggest the reasonable ac-
                                                                 9
commodations.” Taylor v. Principal Fin. Group,                     The court stated that “[m]uch of the behavior
93 F.3d 155, 165 (5th Cir. 1996). Such a notifica-            directed toward [Clouatre] was unjust and inhu-
tion triggers a duty on the part of the employer “to          mane . . . . This, however, does not bring plaintiff
participate in the interactive process of determin-           under the protection of the Rehabilitation Act.”
ing” an accommodation. Id.                                    Because he is a federal employee, Clouatre may not
                                                              sue under the Federal Tort Claims Act or similar
   6
     In certain instances, the employee’s disability          state tort statutes. See, e.g,. Bennett v. Barnett,
will be such that the employer “may have an extra             210 F.3d 272, 277 (5th Cir. 2000) (holding that a
duty to explore the employee’s condition.” Loul-              postal employee’s emotional distress claims
seged v. Akzo Nobel, Inc., 178 F.3d 731, 736 n.5              brought against the Postal Service, under the Fed-
(5th Cir. 1999). Here, the court determined that              eral Tort Claims Act, were preempted by the Fed-
the Postal Service, by conducting a fitness-for-duty          eral Employees’ Compensation Act); Rollins v.
examination of Clouatre, sufficiently explored his            Marsh, 937 F.2d 134, 138-40 (5th Cir. 1991)
condition to satisfy whatever duty it may have                (holding that Civil Service Reform Act precluded
owed.                                                         suit under Federal Tort Claims Act).

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