Benkert v. TX Dept Cr Justice

*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opinion should not be published and is not precedent except under the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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20437
Summary Calendar
PHILLIP D. BENKERT,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
U.S.D.C. No. H-01-CV-3988
September 3, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Phillip Benkert appeals the district court’s grant of summary
judgment in favor of the Texas Department of Criminal Justice
(“TDCJ”). Benkert brought suit alleging an unlawful retaliation and
constructive discharge by the TDCJ, his employer. For the reasons
stated below, we affirm.

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2
In 1996, while employed by the TDCJ, Benkert filed a written
report of unlawful employment violations committed by his supervisor.
Benkert alleges that a pattern of unlawful retaliation resulted,
including failure to promote, forced work on extended shifts, and
denial of his request for a leave of absence. As a result of the
alleged hostile work environment, Benkert alleges that he was forced
to seek medical attention and eventually took a medical leave of
absence in August 1998. Following a proper filing with the Equal
Employment Opportunity Commission (“EEOC”), Benkert brought an
employment discrimination suit against the TDCJ in federal district
court in December 1998, alleging unlawful retaliation. While this
first suit was pending, Benkert asserts that he attempted to arrange
to return to work for the TDCJ under “suitable working conditions”.
According to Benkert, when it became clear that the TDCJ would not
remedy the unlawful employment violations, he resigned from his
position with the TDCJ in June 2000. In January 2001, the first suit
was dismissed with prejudice on Benkert’s motion.
In April of 2001, more than 2 years after taking medical leave,
but less than 300 days after he resigned, plaintiff filed a second
EEOC complaint. After receiving proper notice from the EEOC,
Benkert, acting pro se, filed the present suit on November 15, 2001.
The complaint alleges unlawful retaliation and constructive discharge
by the TDCJ based on the events described above. The district court
granted the TDCJ’s motion for summary judgment, concluding that

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1 Hanks v. Transcon. Gas Pipe Line Corp., 953 F.2d 996, 997 (5th
Cir. 1992).
2 Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000).
3 Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th
Cir. 1998).
4 Hunt v. Rapides Healthcare Sys., LLC., 277 F.3d 757, 771 (5th
Cir. 2001).
3
Benkert’s claims were barred based on res judicata and statute of
limitations, and we agree.
We review the district court’s grant of summary judgment de
novo.1 Appellant’s claims based on retaliation prior to his taking
medical leave are barred under res judicata.2 Benkert makes vague
allegations that, subsequent to his taking medical leave, the TDCJ
would do nothing to remedy the alleged unlawful employment
violations. He therefore asserts that the constructive discharge
occurred when he resigned, and is within 300 days of filing the EEOC
complaint. These allegations are not sufficient to raise a genuine
issue of material fact.3 We conclude, as did the district court, that
any claim of constructive discharge accrued when he left the TDCJ on
leave and did not return, not when he formally resigned.4 The events
leading to any constructive discharge occurred prior to his taking
medical leave, more than two years before his filing the second
complaint with the EEOC. Therefore, even if a claim of constructive
discharge is not barred by res judicata, it is barred because it was

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5 See 42 U.S.C. § 2000e-5(e) (1994); Huckabay v. Moore, 142 F.3d
233, 238 (5th Cir. 1998).
4
not timely filed with the EEOC.5 The judgment of the district court
is therefore AFFIRMED.

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