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Weems v. Dallas Independent School District

United States District Court, N.D. Texas, Dallas Division

May 26, 2017

RODGER C. WEEMS, Plaintiff,


          Sam A. Lindsay, United States District Judge

         Before the court are Defendant's Motion for Summary Judgment (Doc. 32), filed July 15, 2016; and Defendant's Motion to Strike and Objections to Plaintiff's Summary Judgment Evidence (Doc. 39), filed August 19, 2016. After careful consideration of the motions, briefs, appendix, record, and applicable law, the court grants in part and denies in part Defendant's Motion to Strike; and grants Defendant's Motion for Summary Judgment.

         I. Procedural and Factual Background

         Plaintiff Rodger Weems (“Plaintiff” or “Weems”) filed this action against Defendant Dallas Independent School District (“Defendant” or “DISD”) on June 24, 2015.[1] Weems contends that DISD discriminated against him when it did not renew his contract because of his knee injury, age, and advocacy activities. Weems asserts claims for disability discrimination in violation of Title I and V of the Americans with Disabilities Act (“ADA”); age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”); and retaliation under the ADA, ADEA, and Title VII of the Civil Rights Act of 1964 (“Title VII”).[2] Plaintiff seeks compensatory damages for lost wages; lost benefits; and lost supplemental wages. He also seeks punitive damages.

         On July 15, 2016, DISD moved for summary judgment. Plaintiff filed a response to Defendant's Motion for Summary Judgment on August 5, 2016. On August 19, 2016, Defendant filed a reply in support of its motion for summary judgment and objections to Plaintiff's summary judgment evidence. Specifically, Defendant requests that the court strike portions of Plaintiff's affidavit because it contains subjective and conclusory statements that are not based on personal knowledge; statements that are hearsay; statements contradicting prior deposition testimony; and irrelevant statements. Defendant also requests that the court strike the current DISD policy that Plaintiff presents as summary judgment evidence, as the policy is irrelevant because it was issued years after Plaintiff's contract was recommended for nonrenewal. Plaintiff did not file a response to Defendant's objections or motion to strike.

         The court now sets forth the facts in accordance with the standard in Section II of this opinion. Weems began his employment with DISD in August 2001, as a teacher at Thomas A. Edison Middle Learning Center. Def.'s App. 25.[3] In October 2010, he transferred to Alex W. Spence Talented and Gifted Academy and Middle Learning Center (“Spence”), where he taught Speech classes. App. 26. While he was employed by DISD, he underwent knee surgery to repair his torn meniscus. App. 28. The meniscus is “[a] disk of cartilage that acts as a cushion between the ends of bones in a joint.” The American Heritage Stedman's Medical Dictionary 504 (1995). DISD approved Plaintiff's request to take leave under the Family and Medical Leave Act (“FMLA”) to recover from his surgery. App. 29. Plaintiff had the operation on Thursday, February 14, 2013, and chose to return to work on Monday, February 18, 2013. App. 29.

         Upon returning to work, Weems requested that his FMLA status be changed from extended leave to intermittent leave. App. 31. He provided DISD with a doctor's note detailing the following workplace restrictions and conditions: (1) no walking for long distances; (2) no climbing; (3) no standing for long amounts of time; (4) excusing him from work as needed because of pain; (5) taking temporary FMLA leave as needed; and (6) using adaptive devices such as a walking cane as needed. App. 29. As his knee recovered, Weems used a motorized scooter for a week, and then he switched to using a walking cane periodically. App. 29. On May 9, 2013, Weems's doctor completed a “Return to Work Certification” form that lifted his workplace restrictions and released him to regular duty, beginning May 13, 2013. App. 94.

         While his workplace restrictions were in place, Weems was instructed to complete tasks that required him to stand. App. 29. On his first day back to work, he had to monitor students in the cafeteria and check students' backpacks at the metal detectors. App. 30. While monitoring students in the cafeteria, he was instructed by Principal Roberto Basurto (“Basurto”) to go up and down the aisles. Id. The aisles were too narrow to fit his motorized scooter. Id. Weems, therefore, had to get out of his scooter to complete the task, and his injured knee began to hurt. Id. Likewise, he also had to stand the majority of the time he monitored students at the metal detectors. Id. Each day after he returned to work, Weems was placed on metal detector duty in the morning and on cafeteria duty during lunch. Id. Although Weems contends that these tasks are evidence of DISD violating his workplace restrictions, he does not recall complaining to anyone in DISD about being required to complete these tasks. App. 31. The amount of time Weems monitored the metal detectors and monitored the cafeteria is not stated; however, these duties by their nature were limited in duration.

         On March 21, 2013, Weems was in the middle of teaching his class when he was called to Basurto's office. App. 32. When he arrived at the principal's office, Basurto informed Weems that his contract was not going to be renewed because of either program changes or budget cuts. Id. Weems asked Basurto to please consider him for other positions for which he was qualified, and Basurto nodded his head. Id. Weems then left the office and returned to teach his class. Id.

         Weems received a “Notice of Intent to Recommend Non-Renewal (Excess-Term Contract)” (“Notice”) dated April 8, 2013. App. 35, 125. The Notice stated that Weems had been assigned as an excess Chapter 21 employee “[d]ue to programmatic change and/or budget reduction at [his] campus.” App. 35. The Notice also informed Weems that he would receive a notice of proposed nonrenewal from DISD's board. App. 37. From the date he received the Notice, Weems had 15 days to request a hearing. App. 37. If he did not request a hearing or the board upheld the Notice, his employment with DISD would end at the conclusion of his contract for the 2012-2013 academic year. Id. On May 23, 2013, Weems received a Proposed Notice of Nonrenewal Excess, and he did not request a hearing within 15 days. Weems received a letter on June 10, 2013, that informed him that the board of trustees decided not to renew his contract. App. 39.

         Plaintiff believes that Basurto had a “predisposition toward firing people who were not as healthy as he would have liked to have seen them.” App. 42. He bases his belief on Basurto's facial expressions and tone during an interaction that he had with Basurto after his knee surgery. App. 43. Basurto asked Weems, “What's the matter with your knee?” Weems responded, “Old age, I guess.” App. 31. Weems, however, does not recall whether Basurto asked this question before or after he gave Weems his informal Notice. App. 42. Aside from this question, neither Basurto nor any other DISD employee made any statements that indicated to Weems that he was being discriminated against because of his knee injury. App. 43.

         According to Plaintiff, DISD Superintendent Mike Miles (“Miles”) publicly stated, “I like teachers who are young and fresh.” Weems Aff. 1. Weems asked other teachers at union meetings and teacher gatherings why they were leaving the district, and their responses were along the lines of, “Well, you know Miles is making it hard on old teachers.” App. 45.

         Plaintiff also served as the Education Chair for the National Association for the Advancement of Colored People (“NAACP”). App. 54. None of Plaintiff's initiatives and proposals related to his employment with DISD. App. 55. Weems was also involved with Alliance-American Federation of Teachers (“Alliance AFT”), a teacher's union. App. 67. Through Alliance AFT, Plaintiff advocated on behalf of all teachers related to their working conditions, salaries, evaluations, and jobs. Id.

         DISD has not hired another speech teacher to replace Weems, and Speech is no longer offered as an individual course. App. 240. After DISD eliminated Speech, other Language Arts teachers began incorporating aspects of Speech into their lessons plans. Id. There were five fewer teachers at Spence during the 2013-2014 school year than the 2012-2013 school year. Id.

         Defendant moves for summary judgment of each of Plaintiff's claims. Defendant contends that there is no genuine dispute of material fact as to any of Plaintiff's claims, as Plaintiff presents no evidence to prove his prima facie case of disability and age discrimination, and presents no evidence to support his retaliation claim. DISD further argues that Weems's teaching contract was recommended for nonrenewal for a legitimate, nondiscriminatory reason-namely, programmatic changes or budget reductions-and Plaintiff presents no evidence that its stated reasons for nonrenewal of his contract constitute pretext for discrimination. Accordingly, Defendant contends that it is entitled to judgment as a matter of law on each of Plaintiff's claims. Plaintiff counters that he has presented evidence to raise a genuine dispute of material fact with respect to each of his claims, which precludes Defendant from being entitled to judgment as a matter of law.

         II. Motion for Summary Judgment Standard

         Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.'” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

         The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

         III. Discussion

         A. Disability Discrimination

         With respect to Plaintiff's disability discrimination claim brought pursuant to the ADA, Defendant contends that Plaintiff has no evidence that he was disabled or regarded as being disabled; or that his teaching contract was recommended for nonrenewal because of an actual or perceived disability. DISD further argues that Weems's teaching contract was recommended for nonrenewal for a legitimate, nondiscriminatory reason-programmatic changes or budget reductions. DISD contends that Plaintiff presents no evidence that its articulated reasons are a mere pretext for discrimination or that Weems's disability was a motivating factor for the nonrenewal of his contract.

         Plaintiff contends that he is disabled, as his knee injury qualifies as a disability. Further, he argues that regardless of being disabled, he was regarded as being disabled by DISD. Plaintiff contends that there is evidence that he was discriminated against because of his disability or perceived disability. Plaintiff argues that the evidence supports a finding that DISD's articulated reasons for termination are merely pretext for unlawful discrimination.

         1. Legal Standard for an ADA Claim

         The ADA is an antidiscrimination statute designed to remove barriers that prevent qualified individuals with disabilities from enjoying employment opportunities available to persons without disabilities. Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 161 (5th Cir. 1996). The ADA prohibits discrimination against a qualified individual because of a disability “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).

         A person “may establish a claim of discrimination under the ADA either by presenting direct evidence or by using the indirect method of proof set forth in McDonnell Douglas . . . .” Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). There is no direct evidence that Weems was discriminated against because of the physical condition of his knee. Plaintiff states that Basurto asked him, “What's the matter with your knee?” Weems responded, “Old age, I guess.” App. 31. Weems's relies on his interpretation of Basurto's tone of voice and facial expressions to contend that Basurto's question constitutes direct evidence of discrimination. The court disagrees. Basurto's inquiry about Weems's knee is a question that would be asked during normal conversation under the circumstances. Weems's subjective belief regarding Basurto's tone and facial expression, without more, is insufficient to constitute direct evidence of disability discrimination. Weems, therefore, must “show a violation of the ADA using circumstantial evidence [and] must satisfy the McDonnell Douglas burden-shifting framework.” Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016).

         To establish a prima facie case of intentional discrimination under McDonnell Douglas, Weems must show that: “(1) [he] has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision on account of his disability.” Id. (citation omitted). Once the plaintiff makes that showing, “a presumption of discrimination arises, and the employer must ‘articulate a legitimate non-discriminatory reason for the adverse employment action.”' Id. (citation omitted). “The burden then shifts to the plaintiff to produce evidence from which a jury could conclude that the employer's articulated reason is pretextual.” Id. (citation omitted).

         A person is disabled under the ADA if he (1) has a physical or mental impairment that substantially limits one or more of the major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2). The ADA Amendments Act of 2008 made it “easier for people with disabilities to obtain protection under the ADA.” Cannon, 813 F.3d at 590 (quoting 29 C.F.R. § 1630.1(c)(4)). The amendments broadened the definition of “disability” by “construing the substantially limits standard in favor of broad coverage.” Id. (internal quotation marks omitted). The bottom line in a “post-amendment case is thus whether [plaintiff's] impairment substantially limits his ability ‘to perform a major life activity as compared to most people in the general population.”' Id. at 591 (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). Weems contends that his disability is having an injured knee that required him to undergo surgery.

         2. Whether Plaintiff Had a Physical Impairment that Substantially Limited One or More Major Life Activities

         The survival of Weems's ADA claim turns on whether he is disabled or has been regarded as disabled. Plaintiff makes the following argument as to whether he is disabled:

In February 2013[, ] Plaintiff had surgery for a torn meniscus. He was required to use a cane and a motorized scooter to function in his employment. This limited his activities in teaching, which were not all classroom work, and this is ...

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