United States Court of Appeals

for the Fifth Circuit ____________

No. 23-20145

Summary Calendar

____________

Pamela Cyrilien, 

Plaintiff—Appellant, 

versus

Texas Department of Criminal Justice, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:21-CV-2523

______________________________

Before Dennis, Engelhardt, and Wilson, Circuit Judges.

Per Curiam:*

Appellant Pamela Cyrilien was diagnosed with breast cancer on 

December 14, 2018, and alleges that her former employer, the Texas 

Department of Criminal Justice (“TDCJ”), failed to accommodate her 

disability in violation of the Americans with Disabilities Act of 1990 

(“ADA”) and the Rehabilitation Act of 1973 (“Rehabilitation Act”). For the 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

December 5, 2023

Lyle W. Cayce

Clerk

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No. 23-20145

2

reasons that follow, we AFFIRM the district court’s entry of summary 

judgment in favor of TDCJ.

I.

Cyrilien was employed as an administrative assistant at a TDCJ prison 

in Navasota, Texas. The essential functions of her job included performing 

technical assistance work; managing supplies, parts, and equipment for unit 

maintenance; coordinating the preparation, editing, and distribution of 

correspondence, reports, studies, and other forms; coordinating 

maintenance; training and supervising offenders in administrative support 

procedures; and assisting in maintaining the security of assigned offenders. 

She was diagnosed with breast cancer on December 14, 2018, and began 

chemotherapy treatment on March 29, 2019. Her last in-person workday at 

TDCJ was May 30, 2019. 

To continue receiving treatment, Cyrilien applied for and was granted 

Family Medical Leave Act (“FMLA”) leave in June 2019. She also requested 

and received 400 additional hours of leave from TDCJ’s sick leave policy. 

Also in June 2019, Cyrilien applied for long-term disability benefits, and 

began receiving long-term disability payments from the Texas Income 

Protection Program and the Social Security Administration. After exhausting 

all her accrued and FMLA leave time, TDCJ placed her on “Leave Without 

Pay” status in December 2019. Under TDCJ’s policies, an employee may 

only be on Leave Without Pay status for 180 days within a rolling twelvemonth period. In March 2020, TDCJ informed Cyrilien that her Leave 

Without Pay time had expired and her employment wasterminated on March 

20, 2020. 

Cyrilien sued TDCJ in August 2021 alleging violations of the ADA 

and the Rehabilitation Act. Cyrilien’s ADA claim was dismissed in 

December 2021. After discovery, TDCJ moved for summary judgment on 

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the remaining Rehabilitation Act claim. The district court granted TDCJ’s 

motion without a written opinion, thereby entering summary judgment in 

favor of TDCJ on Cyrilien’s Rehabilitation Act claim. Cyrilien appeals only 

the dismissal of her Rehabilitation Act claim.

II.

This court reviews a district court’s grant of summary judgment de 

novo and applies the same legal standards as the district court. Fahim v. 

Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Summary 

judgment shall issue “if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). “In determining whether a genuine issue as 

to any material fact exists, [the court] must view the evidence in the light 

most favorable to the nonmoving party.” Fahim, 551 F.3d at 348–49.

III.

The Rehabilitation Act was enacted “to ensure that handicapped 

individuals are not denied jobs or other benefits because of prejudiced 

attitudes or ignorance of others.” Brennan v. Stewart, 834 F.2d 1248, 1259 

(5th Cir. 1988). Because the ADA was also enacted to prevent discrimination 

against individual with disabilities, and because the language in the statutes 

contain parallel language, “[j]urisprudence interpreting either section is 

applicable to both.” Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).

Thus, to prevail in a failure to accommodate claim under the Rehabilitation 

Act, Cyrilien must prove that (1) she is a “qualified individual with a 

disability;” (2) the disability and its consequential limitations were “known” 

by TDCJ; and (3) TDCJ failed to make “reasonable accommodations” for 

Cyrilien’s known limitations. Feist v. Louisiana, 730 F.3d 450, 452 (5th Cir. 

2013).

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Cyrilien argues that the district court erred in entering summary 

judgment on her failure to accommodate claim under the Rehabilitation Act

because she argues that she is a “qualified individual with a disability” within 

the meaning of the Rehabilitation Act. 

Cyrilien has not created a genuine dispute of material fact that she is 

a “qualified individual with a disability.” A “qualified individual” is a person

(1) that can “perform the essential functions of the job in spite of [her]

disability,” or (2) that “a reasonable accommodation of [her] disability would 

have enabled [her] to perform the essential functions of [her] job.” EEOC v. 

LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014). 

Cyrilien invokes the second pathway by arguing that TDCJ should 

have provided her with reasonable accommodations in the form of a “deskjob accommodation” and its failure to do so was a violation of their legal 

obligations under the Rehabilitation Act. The plaintiff bears the burden of 

requesting reasonable accommodations, and if no reasonable accommodation 

can be made to plaintiff’s prior job, the plaintiff also bears the burden of 

proving that another “available position exists that [she] was qualified for and 

could, with reasonable accommodations, perform.” Jenkins v. Cleco Power, 

LLC, 487 F.3d 309, 315 (5th Cir. 2007). “For the accommodation of a 

reassignment to be reasonable, it is clear that a position must first exist and 

be vacant. Under the ADA, an employer is not required to give what it does 

not have.” Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997).

Cyrilien proffers no evidence to create a genuine dispute of material fact that 

such a position existed and was vacant. She points to deposition testimony of 

TDCJ’s accommodations coordinator, Terry Bailey, who stated that desk 

jobs existed at TDCJ. Specifically, when asked if she had “seen any of those 

light-duty work options . . . at TDCJ,” Bailey replied that she had. Cyrilien, 

however, offers no evidence that she was qualified for these positions, or that 

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any such position existed or was vacant at the time her employment was 

terminated. 

Furthermore, there is no evidence in the record to create a genuine 

dispute of material fact that Cyrilien could have performed any job, even with 

reasonable accommodations. Cyrilien’s own doctor submitted a statement in 

support of her claim for long-term disability benefits stating that Cyrilien was 

totally impaired from working and estimating her return-to-work date as 

February 2021. A plaintiff who has submitted a “sworn assertion in an 

application for disability benefits that she is... ‘unable to work’ will appear to 

negate an essential element of her ADA case”—namely, that she can 

perform the essential functions of her employment position— and as such, 

“must proffer a sufficient explanation” to account for the “apparent 

contradiction.” Giles v. Gen. Elec. Co., 245 F.3d 474, 483 (5th Cir. 2001)

(citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806–07 (1999)). 

The district court found this precept to be important, stating that Cyrilien 

did not offer a sufficient explanation to account for the apparent 

contradiction, and that Cyrilien “represented under oath she is disabled, 

unable to work, and at the same time claiming entitlement to the job she can’t 

perform.” We agree with the district court and find that Cyrilien offers no 

explanation for the apparent contradiction.

As such, we find that the district court did not err in finding that 

Cyrilien is not a “qualified individual with a disability,” foreclosing her 

failure to accommodate claim under the Rehabilitation Act.1

 We AFFIRM.

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1 Because we hold that Cyrilien is not a “qualified individual with a disability,” an 

essential element of her prima facie case under the Rehabilitation Act, we do not address 

whether she was subject to an adverse action solely because of disability. 

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