                         IN THE UNITED STATES COURT OF APPEALS

                                     FOR THE FIFTH CIRCUIT



                                              No. 00-40497



GRACIELA FRANCO,
                                                                                    Plaintiff-Appellant,

                                                  versus

CITY OF CORPUS CHRISTI,
                                                                                   Defendant-Appellee.



                              Appeal from the United States District Court
                                  for the Southern District of Texas
                                             (C-99-CV-102)

                                              May 16, 2001

Before WIENER and STEWART, Circuit Judges, and SMITH, District Judge.*

PER CURIAM:**

          Plaintiff-Appellant, Graciela Franco (“Franco”), appeals the magistrate judge’s grant of

summary judgment in favor of Defendant-Appellee, the City of Corpus Christi (“the City”), regarding

her discrimination suit filed pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101

(“ADA”) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e (“Title VII”). For the

reasons assigned below, we affirm the magistrate judge’s ruling.


   *
        District Judge of the Western District of Texas, 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 R. 47.5, the court has determined that this opinion should not be published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.
                         FACTUAL AND PROCEDURAL BACKGROUND

          Franco began working with the City in January 1983 as a grade 8 receptionist. By 1992, the

City had promoted her to the position of a grade 20 legal secretary. In April 1994, Franco was

diagnosed with bilateral carpal tunnel syndrome and underwent surgery to both her wrists. She

returned to work in December 1994, with limitations, and was transferred to the Ci ty’s Airport

Department as the Operations and Maintenance Coordinator at her previous salary, although it was

a grade 18 position.

          On February 16, 1996, Franco suffered a new job-related injury. Her treating physician, Dr.

Snook, diagnosed Franco as having mild bilateral carpal tunnel syndrome. Through its Worker’s

Compensation Center, he notified the City that Franco’s symptoms, which affected her hands, arms,

and upper body, were related to repetitive keying activities. Dr. Snook advised the City that Franco’s

job needed to be modified to exclude such activity in order to reduce the repetiti ve stress on her

wrists.

          In April of 1996, Dr. Edwin Melendez (“Dr. Melendez”), another one of Franco’s physicians,

reco mmended permanent revision in her job responsibilities to allow her to work in a light duty

environment. He suggested that she not lift, push, or pull more than fifteen pounds. Moreover, Dr.

Melendez advised that the City should limit Franco’s typing to not more than twenty to thirty minutes

at a time.

          By May 1996, Franco had informed Viola Lopez (“Lopez”), the independent Rehabilitation

Counselor assisting the City in its efforts to accommodate her, that she could no longer perform her

job and that she believed that her limitations are permanent. Lopez attested that Franco claimed the

City could do nothing to accommodate her. Thus, on May 15, 1996, the City placed Franco on a “no


                                                   2
work status” medical leave. Shortly thereafter, the city advertised and filled Franco’s position in the

Aviation Department.

        Franco subsequently applied for disability retirement benefits with the Texas Municipal

Retirement System on May 17, 1996. The record reflects, however, that the Texas Rehabilitation

Commission (“TRC”) agreed to provide Franco with a voice computer recognizer and a headset and

that the City made a tape recorder available to Franco to help alleviate potential re-aggravation of her

carpal tunnel syndrome from word processing, answering telephones, and taking notes. Moreover,

the City offered Franco various employment opportunities from May 1996 until her resignation in

January 1997. Maintaining that she was unable to perform the work, she refused to take the

positions, even on a trial basis. Subsequently, Franco failed to attend an appointment with the City’s

occupational health specialist for an evaluation to facilitate the City in its efforts to accommodate her.



        By early December 1996, her attorney requested that Lopez no longer contact Franco. Lopez

accordingly closed Franco’s file. On January 8, 1997, claiming that she was forced to resign to obtain

her retirement funds, Franco submitted her letter of resignation to the City.

        On February 16, 1999, Franco filed a petition in state court against the City alleging

discrimination. Contending that Franco’s allegations raised claims under Title VII and the ADA, the

City removed the case to federal court. After Franco filed an amended complaint specifically averring

these federal laws and the City filed an answer generally denying the merits of her claims, the parties

consented to proceed before a magistrate judge.

        Arguing that Franco could not prove that she was constructively discharged, that she had

failed to allege retaliation as a motive for her purported discharge, and that her ADA claim was


                                                    3
barred by the statute of limitations, the City moved for summary judgment. In response, Franco

conceded that she was not pursuing a cause of action for retaliation, but she maintained that she had

been terminated in January 1997. Franco also argued that the statute of limitations did not bar any

of her claims. In reply, the City asserted that Franco’s response to its summary judgment motion

contained an affidavit that impeached her deposition testimony.

       The magistrate judge relied on Franco’s deposition testimony when her affidavit contained

contradictory attestations. She held that Franco failed to demonstrate her alleged construct ive

discharge and therefore did not present a prima facie case of discrimination under either Title VII or

the ADA. Moreover, the magistrate judge concluded that Franco was unable to show that the City

was remiss in trying to reasonably accommodate her carpal tunnel syndrome, not only because the

TRC provided the equipment that she requested but also because Franco refused to accept the

employment that the City subsequently offered her. Accordingly, the magistrate judge granted the

City’s motion for summary judgment. Franco now appeals that ruling.

                                           DISCUSSION

I.     Standard of Review

       This court reviews a grant of summary judgment de novo, applying the same standard as the

magistrate judge. See Perenco Nigeria Ltd. v. Ashland, Inc., 242 F.3d 299, 304 (5th Cir. 2001).

Under Fed. R. Civ. P. 56(c), “[a] motion for summary judgment is properly granted only if there is

no genuine issue as to any material fact.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106

S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). If the moving party meets this initial burden of establishing

the nonexistence of a genuine issue of material fact, the burden then shifts to the nonmoving party

to produce evidence of the existence of a genuine issue for trial. Celotex Corp., 477 U. S. at 321.


                                                  4
The nonmoving party cannot, however, satisfy this summary judgment burden with conclusory

allegations, unsubstantiated assertions, or only a scintilla of evidence. Little v. Liquid Air Corp, 37

F.3d 1069, 1075 (5th Cir. 1994) (en banc).

       “‘An issue is genuine if the evidence is sufficient for a reasonable jury to return a verdict for

the nonmoving party.’” Arnold v. United States Dep’t of Interior, 213 F.3d 193, 195 (5th Cir. 2000)

(citation omitted). To determine whether such a genuine fact issue exists, this court views the facts

and any inferences drawn therefrom in the light most favorable to the nonmoving party. Perenco

Nigeria Ltd., 242 F.3d at 304. We do so, however, without making any credibility determinations

and without weighing any evidence. Id. (citing Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.

133, 120 S. Ct. 2097, 2102, 147 L. Ed. 2d 105 (2000)).

II.    Title VII Claim

       “The analysis for Title VII discrimination claims is well-known.” Mayberry v. Vought

Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell-Douglas Corp. v. Green, 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)). First, the plaintiff must establish a prima facie case that

a protected factor motivated the defendant’s employment decision. Id. She must show that: (1) she

belongs to a protected class; (2) she was qualified to perform her job; (3) despite her qualifications,

her employment was adversely affected; and (4) her position was filled by someone outside that

protected class. Young v. City of Houston, Tex., 906 F.2d 177, 180 (5th Cir. 1990). The defendant

then bears the burden to articulate a legitimate, nondiscriminatory reason for its employment decision.




                                                  5
Mayberry, 55 F.3d at 1089. Upon doing so, the burden shifts back to the plaintiff to prove that the

defendant’s proffered reason was a pretext for discrimination. Id.

        Franco is of Hispanic descent, and after removing her from the Operations and Maintenance

Coordinator position, the Cit y filled the vacancy with Warren Perkins (“Perkins”), a white male.

Thus, Franco established the first and fourth elements of her prima facie Title VII discrimination case.

The magistrate judge concluded, however, that she did not show that the City constructively

discharged her.

        The magistrate judge based her grant of the City’s motion for summary judgment on Franco’s

failure to demonstrate an adverse employment action sufficient to establish the third element of her

prima facie case. Although the order’s reasoning does not specifically address whether the City, as

the moving party under Fed. R. Civ. P. 56(c), showed the absence of a genuine issue of material fact,

our review of the record supports the magistrate judge’s ultimate conclusion that the City is entitled

to summary judgment.

        Franco’s amended original complaint and deposition testimony assert that she was terminated

on January 8, 1997,1 because she was forced to resign. Franco correctly notes that an employee can

demonstrate that her resignation amounted to an adverse employment action by proving that her


    1
          Based on a declaration that she made after her deposition testimony, Franco alternatively
contends that she was constructively discharged as of November 2, 1996, the date ending her ninety-
day period under the City’s limited-duty policy. Because this evidence inexplicably contradicts her
previously sworn deposition testimony and her amended complaint, in which she attested that she
resigned from her employment, Franco may not rely on it to defeat summary judgment. See Davis
v. Edwards & Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987) (“‘[F]actual assetions in pleadings are
. . . judicial admissions conclusively binding on the party that made them.’”)(citation omitted); S.W.S.
Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (“It is well-settled that this court does
not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without
explanation, sworn testimony.”) (citations omitted). As such, we pretermit Franco’s alternative claim
that she was constructively discharged on November 2, 1996.

                                                   6
employer constructively discharged her. See Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir.

2000) (“When an employee resigns, he may satisfy the discharge requirement by proving constructive

discharge.”). To establish that she was constructively discharged, however, Franco “must prove that

[her] working conditions were so difficult or unpleasant that a reasonable person in [her] shoes would

have felt compelled to resign.” Ugalde v. W. A. McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir.

1993).

         Thus, Franco’s “‘resignation must have been reasonable under all the circumstances.’”

Brown, 207 F.3d at 782 (citation omitted). But whether a reasonable employee would feel compelled

to resign is, of course, dependent on the facts of each case. Id. This court considers the following

factors, singly or in combination, to make such a determination:

         (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)
         reassignment to menial or degrading work; (5) reassignment to work under a younger
         supervisor; (6) badgering, harassment, or humiliation by the employer calculated to
         encourage the employee’s resignation; or (7) offers of early retirement [or continued
         employment on terms less favorable than the employee’s former status] . . . .

Id. (quoting Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994)).

         In the instant case, Franco ardently contends that she suffered a complete loss of salary from

May 1996 to January 1997 while the City was trying to secure another position for her. Although

the record supports the City’s argument that it made several attempts to reassign her during this

time,2 Franco maintains that she could not perfo rm those jobs while suffering from carpal tunnel

syndrome. However, she contends neither that the jobs amounted to an offer of continued

employment on less favorable terms nor that the positions amounted to demotions. Indeed, when the



    2
       The City offered Franco a position in its Senior Community Services Department and two
positions at the Department of Housing and Community Development.

                                                   7
City first responded to the onset of Franco’s carpal tunnel syndrome by transferring her from the

grade 20 position of legal secretary to Operations and Maintenance Coordinator in the Airport

Department, a grade 18 position, it continued to pay Franco at the higher salary grade.

        Moreover, the record reveals that the City neither badgered, harassed, nor humiliated Franco

in a calculated attempt to encourage Franco’s resignation. In fact, the City ultimately offered Franco

the opportunity to return to work as an Operations and Maintenance Coordinator. Franco

nevertheless failed to respond, attesting in her deposition that: “Financially, I couldn’t take the job.

By the time that they would give me the job and then by the time I might make my one regular

paycheck, that was not going to cover the financial bind I was in . . . .” These circumstances do not

present a material issue of fact upon which a jury could find that a reasonable employee would have

felt compelled to resign. The district court, therefore, did not erroneously grant the City’s motion

for summary judgment against Franco’s claim of discrimination under Title VII.

III.    ADA

        The ADA provides that: “No 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, and other

terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The term “discriminate”

includes:

        not making reasonable accommodations to the known physical or mental limitations
        of an otherwise qualified individual with a disability who is an applicant or employee,
        unless such covered entity can demonstrate that the accommodation would impose
        an undue hardship on the operation of the business of such covered entity; or

        denying employment opportunities to a job applicant or employee who is an otherwise
        qualified individual with a disability, if such denial is based on the need of such


                                                   8
        covered entity to make reasonable accommodation to the physical or mental
        impairments of the employee or applicant . . . .

42 U.S.C. § 12112(b)(5)(A)-(B).

        Under the McDonnell Douglas indirect method of proof used in Title VII actions, a plaintiff

may establish a claim of disability discrimination. Taylor v. Principal Fin. Group, Inc., 93 F.3d 155,

162 (5th Cir. 1996) (citing Daigle v. Liberty Life Ins. Co., 70 F.3d 394 (5th Cir. 1995)). The plaintiff’s

prima facie case must show that: “(1) he or she suffers from a disability; (2) he or she is qualified for

the job; (3) he or she was subject to an adverse employment action; and (4) he or she was replaced

by a non-disabled person or was treated less favorably than non-disabled employees.” Id.; see also

Robertson v. The Neurological Med. Ctr., 161 F.3d 292, 294 (5th Cir. 1998) (listing the first three

elements as sufficient to establish a prima facie case of discrimination under the ADA).

If a plaintiff demonstrates the first three prongs, then the employer is required to make reasonable

accommodations to the employee’s known disabilities. Burch v. City of Nacogdoches, 174 F.3d 615,

619 (5th Cir. 1999).

        The magistrate judge assumed that Franco demonstrated the first two elements of her prima

facie case of disability discrimination. However, based on her earlier finding that Franco’s resignation

did not amount to a constructive discharge, the magistrate judge concluded that Franco could not

establish that the City made an unfavorable decision because of her disability. Our consideration of

the record and the parties’ briefs confirms the magistrate judge’s conclusion.

        Franco now argues that the City took an adverse employment action against her when it

removed her from the Airport Operations and Maintenance position. She bases this argument, in

significant part, on her allegations that the City lowered the typing and driving requirement for the



                                                    9
position once Perkins was hired.3 Franco asserts that if the City had provided her with these

accommodations she would have been able to continue performing the Airport Operations and

Maintenance job.

       These assertions are unsupported by relevant record evidence. Specifically, Lopez’s affidavit

states that, after Franco aggravated her condition in February 1996, Franco expressed not only that

the injury was permanent but also that the City could do nothing to accommodate her in the Airport

Operations and Maintenance position. Franco confirmed this conversation in her deposition

testimony. The pertinent exchange is as follows:

       Q.      Okay. In May 1996 when you spoke with Ms. Lopez, did you think, at that
               time, your injuries were permanent?

       A.      At that time, I believe they were permanent.

       Q.      And -- and when I say permanent, did you believe that the restrictions caused
               by those injuries would be permanent?

       A.      Yes, sir, at that time.

       Q.      Do you remember saying anything to Ms. Viola Lopez during that May 1996
               meeting to indicate to her that you felt there was nothing that could be done
               to accommodate you in your job?

       A.      At that job.

       Q.      The coordinator’s job, correct?

       A.      Yes, sir.

       Q.      Okay. You felt at that – at that time, like you were going to have to be
               moved to another job; is that right?

       A.      At that time, yes, sir.


   3
     As evidence of these alleged changes, Franco relies on her sworn declaration and the affidavit
of Edna Davis.

                                                 10
        As discussed supra in note 2, Franco cannot rely, without explanation, on her declaration to

impeach her previously sworn deposition testimony in an effort to create a fact issue sufficient to

survive summary judgment. Franco provides no such explanation for the instant contradiction. We,

therefore, conclude that no material issue of fact exists upon which a jury could find that the City

took an adverse employment action against Franco when it removed her from the Airport Operations

and Maintenance position.

        We also find that the City nonetheless made every effort to reasonably accommodate Franco.

It advised her to contact the TRC, which ultimately agreed to provide the voice recognizer and

headset that she requested. The TRC’s only condition was that it would refrain from distributing the

equipment to Franco until she accepted a position with the City. The City offered Franco four

employment opportunities, including her former Airport Operations and Maintenance position, all of

which she refused.

        The Fifth Circuit recognizes that “‘the responsibility for fashioning a reasonable

accommodation is shared between the employee and the employer.’” Loulseged v. Akzo Nobel, Inc.,

178 F.3d 731, 736 (5th Cir. 1999) (quoting Principal Fin. Group, 93 F.3d at 165) (emphasis added).

But when the “breakdown of the ‘informal interactive process’ is traceable to the employee and not

the employer,” an employer cannot be found to have discriminated against the employee based on her

disability. Id. (citation omitted). Because no reasonable jury could find the City at fault for the

breakdown of the interactive process on the facts presented in this case, the district court did not err

in granting the City’s motion for summary judgment against Franco’s ADA discrimination claim.



                                           CONCLUSION


                                                  11
       No material issue of fact exists regarding Franco’s discrimination claim under either Title VII

or the ADA, and we, acco rdingly, AFFIRM the magistrate judge’s grant of summary judgment in

favor of the City.

AFFIRMED.




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