                 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this opinion should not be published and is not precedent except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.




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