United States District Court, N.D. Texas, Dallas Division
RODGER C. WEEMS, Plaintiff,
DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant.
MEMORANDUM OPINION AND ORDER
Lindsay, United States District Judge
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.
Procedural and Factual Background
Rodger Weems (“Plaintiff” or “Weems”)
filed this action against Defendant Dallas Independent School
District (“Defendant” or “DISD”) on
June 24, 2015. 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”). Plaintiff seeks compensatory damages for
lost wages; lost benefits; and lost supplemental wages. He
also seeks punitive damages.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Motion for Summary Judgment Standard
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.
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).
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.
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.
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.
Legal Standard for an ADA Claim
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).
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).
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).
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
Whether Plaintiff Had a Physical Impairment that
Substantially Limited One or More Major Life
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 ...