                                                           United States Court of Appeals
                                                                    Fifth Circuit

                                                                 FILED
                                                           December 22, 2004
               IN THE UNITED STATES COURT OF APPEALS
                                                         Charles R. Fulbruge III
                         FOR THE FIFTH CIRCUIT
                                                                 Clerk
                         _____________________

                            Summary Calendar
                              No. 04-50545
                         _____________________

         JAMES D HANDY

                                         Plaintiff - Appellant
              v.

         R L BROWNLEE, Acting Secretary of the Army

                                         Defendant - Appellee


            Appeal from the United States District Court
                  for the Western District of Texas
                            No. 02-CV-351


    Before KING, Chief Judge, and DAVIS and STEWART, Circuit
    Judges.

    PER CURIAM:*

         Appellant James D. Handy, a civilian employee at an

    Army installation, was injured in an accident.    After the

    accident, he was able to return to work, subject to certain

    accommodations.   Handy’s physical restrictions eventually

    became so severe that even with all reasonable


*
 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opinion should not be published and is not precedent except under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 -
    accommodations, he could no longer fulfill the core

    responsibilities of his job.   Handy thus chose to take

    disability retirement.   He then filed suit against the

    Secretary of the Army in the United States District Court

    for the Western District of Texas, claiming that he was

    discharged in violation of the Rehabilitation Act of 1973

    and Title VII of the Civil Rights Act of 1964.    On summary

    judgment, the court found in favor of the Army.    Handy now

    appeals that decision.   We AFFIRM the decision of the

    district court.

                       I.    FACTUAL BACKGROUND

         Plaintiff-Appellant James D. Handy (“Handy”) was a

    civilian employee at Fort Hood, Texas from 1980 to 1996.1

    From 1980 to 1986, Handy worked as a telephone mechanic.     In

    1986, Handy suffered a severe knee injury in a car accident.

    The injury prevented him from returning to work.    In 1990,

    Handy had knee replacement surgery, which subsequently

    allowed him to return to work in 1992.

         When Handy returned to work he was subject to certain

    physical restrictions.   His medical profile limited him to

    walking three hours per day; climbing, squatting, kneeling,


1
     Handy had also worked at Fort Hood in the 1970's while on
active duty in the Army.

                                 - 2 -
    twisting, and standing for two hours per day; and lifting

    objects no more than twenty pounds.     When he returned, the

    only vacant position in Handy’s old department was that of

    “telephone worker.”   His former position of mechanic had the

    same basic job duties as this new position, although the old

    position involved less direct supervision.     Both jobs were

    informally called “telephone installer.”     Handy accepted

    this position in November 1992, subject to modifications

    required by his medical profile.      In June 1993, Handy filed

    an equal employment opportunity complaint claiming that the

    Army discriminated against him by giving him a lower-grade

    work title upon his return.     Handy’s complaint led to his

    reappointment as a mechanic.2

         For the first three years of his return, Handy

    primarily worked at North Fort Hood.     But in December 1995,

    a backlog of work orders on the main post required all

    telephone installers to work on the main post.     Although his

    supervisors reassured him that his work on the main post

    would not violate his 1992 medical profile, Handy was

    nevertheless concerned that working on the main post would

2
     In May 1993, the position of “telephone mechanic” had its
title changed to “telecommunications mechanic.” However, the
duties of the position remained the same. For the sake of
consistency, we will continue to refer to the position as
telephone mechanic.

                                  - 3 -
force him to climb too many stairs.    In February 1996, Handy

received a new medical profile that drastically increased

his physical limitations.    His new medical profile limited

him to climbing stairs, kneeling, bending, stooping, or

twisting for ten minutes per day; carrying up to ten pounds

for one hour per day; carrying up to twenty pounds for a

half hour per day; and standing or walking for two hours per

day.    These new restrictions made it impossible for Handy to

perform the work of a telephone mechanic.

       Handy’s supervisors soon began looking for a different

position for him that could be tailored to meet his physical

restrictions.    During this search period, he performed

limited work duties and continued to receive his full

salary.    In late February 1996, while the search was

ongoing, Handy suffered a heart attack and spent the next

several months recovering.    On March 26, while Handy was

recuperating, he was notified that there were no vacant

positions for which he was qualified.

       Handy returned to work on June 18.   Upon his return,

Handy submitted a worker’s compensation claim, but his claim

was denied.    As an alternative, he submitted an application

for disability retirement. However, the United States Office

of Personnel Management (OPM) refused to process the

                             - 4 -
application without documentation that Handy was going to be

terminated.   On July 8, Handy’s supervisor signed a letter

that proposed to terminate Handy.    After Handy received the

notice of proposed termination, he met with Lieutenant

Colonel Scott Lofgren (“Lt. Col. Lofgren”) and presented a

letter from his doctor, Edward Lewis, dated July 11.      This

letter stated in relevant part: “Let me say again that the

profile date, January 18, 1996 is for a specific job as [a

telephone mechanic].    He was never able to do that job from

the very beginning of his re-employment.”    Handy met with

Lt. Col. Lofgren again on July 16.    At this meeting, Lt.

Col. Lofgren concluded that the January 1996 medical profile

was still operative and that Handy was unable to perform the

job of telephone mechanic.    On September 4, 1996, OPM

approved Handy’s application for disability retirement.      The

retirement was made effective September 9.      On October 3,

the Army notified Handy that it would cancel the notice of

proposed termination, since he had already retired by that

point.

                  II.   PROCEDURAL BACKGROUND

     On November 8, 2002, after exhausting his

administrative remedies, Handy filed suit in the United

States District Court for the Western District of Texas

                             - 5 -
alleging that the Army violated the Rehabilitation Act of

1973, 29 U.S.C. § 791 et seq., and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-16.     Once discovery

was completed, the Army moved for summary judgment.     On

April 7, 2004, the district court granted the Army’s summary

judgment motion.   On the Rehabilitation Act claim, the court

found that Handy failed to establish both that he suffered

an adverse employment decision and that he is an otherwise

qualified individual with a disability.      On the retaliation

claim, the District Court found both that Handy failed to

establish that he suffered an adverse employment decision

and that he failed to show a causal connection between his

protected activity in 1993 and his retirement in 1996.

Handy now appeals the district court’s decision.

                          III.    ANALYSIS

A.   Standard of Review

     We review a district court’s grant of summary judgment

de novo, applying the same legal standards as the district

court.   See Fierros v. Tex. Dept. of Health, 274 F.3d 187,

190 (5th Cir. 2001).   Summary judgment is appropriate if

there are no genuine issues of material fact and the movant

is entitled to judgment as a matter of law.      Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986); FED.R.CIV.P. 56 (c).

                                 - 6 -
The initial burden to demonstrate the absence of a genuine

issue of material fact is on the movant.     Id. at 323.   Upon

showing that there is an absence of evidence to support an

essential element of the non-movant’s case, the burden

shifts to the non-movant to establish that there is a

genuine issue of material fact.     Id. at 324.

B.   Disability Discrimination Claim

     The Rehabilitation Act prohibits discrimination against

an otherwise qualified individual with a disability in

programs that receive federal funding. 29 U.S.C.

§ 794(a); Kapche v. City of San Antonio, 176 F.3d 840, 844

n.27 (5th Cir. 1999).   To establish a claim under the

Rehabilitation Act, a plaintiff must show that he: (1) is an

individual with a disability; (2) is otherwise qualified to

perform the job; (3) was employed in a program or activity

that receives federal funding; and (4) was discriminated

against solely because of his disability.     Hileman v. City

of Dallas, 115 F.3d 352, 353 (5th Cir. 1997); Chandler v.

City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993).

     If this prima facie case is made, courts then apply the

familiar McDonnell Douglas burden shifting analysis.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04




                            - 7 -
    (1973).3   The burden then shifts to the defendant to produce

    evidence of a nondiscriminatory reason for the employment

    action.    Id.   If such evidence is proffered, the burden of

    production then shifts back to the plaintiff to show that

    the nondiscriminatory justification was mere pretext.      Id.

         Handy failed to make a prima facie showing of

    discrimination.    Specifically, Handy failed to present

    evidence raising a material issue of fact as to whether he

    is otherwise qualified to carry out the duties of a

    telephone mechanic.    To determine whether an employee is

    otherwise qualified, we conduct a two-step inquiry.    First,

3
     Although the Fifth Circuit has not, in a published opinion,
explicitly applied the McDonnell Douglas framework to
discrimination claims brought under the Rehabilitation Act, every
other circuit except the First and Eleventh has done so. Reg’l
Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d
35, 48-50 (2d Cir. 2002), cert. denied, 537 U.S. 813 (2002);
Antol v. Perry, 82 F.3d 1291, 1299 (3d Cir. 1996); Ennis v. Nat’l
Ass’n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 57-58 (4th Cir.
1995); Burns v. City of Columbus, Dep’t of Pub. Safety, Div. of
Police, 91 F.3d 836, 843-44 (6th Cir. 1996); Tyler v. Runyon, 70
F.3d 458, 467 (7th Cir. 1995); Peebles v. Potter, 354 F.3d 761,
766 (8th Cir. 2004); Mustafa v. Clark County Sch. Dist., 157 F.3d
1169, 1175-76 (9th Cir. 1998)(per curiam); Williams v. Widnall,
79 F.3d 1003, 1005 & n.3 (10th Cir. 1996); McGill v. Munoz, 203
F.3d 843, 845 (D.C. Cir. 2000). Additionally, at least one
district court in the Fifth Circuit has also applied the
framework to a Rehabilitation Act case, citing precedent from
other circuits. Burciaga v. West, 996 F. Supp. 628, 634 (W.D.
Tex. 1998). Since Handy cannot make the prima facie
discrimination case, the potential applicability of the burden
shifting framework is not at issue in the instant case.
Assuming, arguendo, Handy had sustained his initial burden, we
would then apply the burden shifting framework.

                                  - 8 -
we determine whether the employee can perform the core

functions of the job.     Chandler, 2 F.3d at 1393.   Second, if

the employee is unable to perform the core functions, we

must ask whether reasonable accommodations would enable the

employee to do so.    Id. at 1393-94.    Ultimately, the

plaintiff has the burden of showing that he is otherwise

qualified. Id. at 1394.

     As to the first step of the otherwise qualified

inquiry, it is clear that Handy could not perform the core

functions of a telephone mechanic.      As for the second step,

based on his 1996 medical profile, Handy’s physical

limitations were so significant that no reasonable

accommodations could have allowed him to perform the

essential functions of his job. Further, Handy has failed to

identify what accommodations could have been afforded to him

that were withheld.   As the plaintiff, he has the burden to

identify such accommodations.     Johnson v. Gambrinus

Co./Spoetzl Brewery, 116 F.3d 1052, 1059 n.4 (5th Cir.

1997).

     Handy also failed to present evidence raising a

material issue of fact as to whether he was discriminated

against solely because of his disability.     In this case, the

alleged discrimination arose from the circumstances

                              - 9 -
surrounding the termination of his employment.    Because

Handy resigned, it can not be said that the Army directly

discriminated against him.   Nevertheless, Handy claims that

he suffered from a constructive discharge.    Under the

constructive discharge doctrine, an employee’s decision to

resign due to intolerable working conditions is tantamount

to formal discharge.   Pennsylvania State Police v. Suders,

124 S.Ct. 2342, 2351–52,   __ U.S. __ (2004). The inquiry

focuses on the objective question: “Did working conditions

become so intolerable that a reasonable person in the

employee’s position would have felt compelled to resign?”

Id. at 2351.   There is nothing in the record to suggest that

Handy was subjected to intolerable working conditions.      At

every turn, Handy’s supervisors accommodated him and

scrupulously honored his medical restrictions.

     Handy also cannot prove that he resigned under duress.

He claims that he faced the choice of possibly losing his

job altogether or seeking disability retirement, in which

case he would lose some benefits and his income would be

reduced.   Under these circumstances, he claims, he had no

choice but to seek disability retirement.    To prove that a

government employee resigned under duress, the employee must

prove that: (1) he involuntarily accepted the terms of his

                             - 10 -
resignation; (2) under the circumstances, he had no other

alternative but to resign; and (3) the circumstances of his

resignation were the result of the government’s coercive

acts.   United States v. Thompson, 749 F.2d 189, 194 (5th

Cir. 1984).   As to the second element, Handy had two

options.   He could have retired, as he chose to do, or he

could have waited to see if a job for which he was qualified

became available before the Army eventually terminated his

employment.   As one court has stated, “[m]erely because

plaintiff was faced with an inherently unpleasant situation

in that her choice was arguably limited to two unpleasant

alternatives does not obviate the voluntariness of her

resignation.” Christie v. United States, 518 F.2d 584 (Cl.

Ct. 1975).    Regarding the third element, the Army’s sending

the notice of proposed termination was not a coercive act

since Handy received the notice upon his own request.

C.   Retaliation

     Handy also claimed that his dismissal was in

retaliation for his 1993 equal employment opportunity

complaint.    To prove retaliation, a plaintiff must establish

that: (1) he was engaged in activity protected by Title VII;

(2) he suffered an adverse employment action; and (3) there

was a causal connection between the protected activity and

                             - 11 -
the adverse action.     Foley v. Univ. of Houston Sys., 355

F.3d 333, 339 (5th Cir. 2003).    As with the discrimination

claim, once the prima facie case is made, the McDonnell

Douglas framework applies.     Fabela v. Socorro Indep. Sch.

Dist., 329 F.3d 409, 415 (5th Cir. 2003).

     Handy’s 1993 complaint satisfies the first element of

the prima facie retaliation case.      However, the other two

elements are not met.    The second element cannot be met

because Handy did not suffer from an adverse employment

action.   As discussed above, he voluntarily resigned.     Handy

has also failed to raise a material issue as to the third

element of the prima facie retaliation case, i.e., the

causal connection between his earlier protected activity and

his alleged wrongful discharge.    Handy points to a statement

made in a memorandum written by Lt. Col. Lofgren as evidence

of reprisal.   Lt. Col. Lofgren wrote: “We have attempted to

work with Mr. Handy but have been threatened with lawsuits

and EEO complaints.”    With this as his only piece of

evidence, Handy cannot prove retaliation.      This statement

does nothing to reflect a retaliatory motive.      It merely

documents the difficulties Handy has created for those

attempting to accommodate him.




                              - 12 -
                      IV.   CONCLUSION

     For the foregoing reasons, the decision of the district

court is AFFIRMED.




                            - 13 -
