Weems v. Dallas Independent School District

Filing 53

MEMORANDUM OPINION AND ORDER granting in part and denying in part 39 Motion to Strike; granting 32 Motion for Summary Judgment. (Ordered by Judge Sam A Lindsay on 5/26/2017) (axm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RODGER C. WEEMS,
Plaintiff,
v.
DALLAS INDEPENDENT SCHOOL
DISTRICT,
Defendant.

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Civil Action No. 3:15-CV-2128-L

MEMORANDUM OPINION AND ORDER
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,

1

On July 15, 2016, Plaintiff sought leave to file his First Amended Complaint. The court denied leave to file an
amended pleading because the motion was filed six months past the deadline to amend pleadings, and Plaintiff failed
to show good cause for the dilatory motion. Accordingly, the live pleading is Plaintiff’s Original Complaint
(“Complaint”), filed June 24, 2015.
Memorandum Opinion and Order - Page 1

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

2

In his Complaint, Weems contends that the nonrenewal of his contract as a teacher with DISD constitutes retaliation
under the ADA, ADEA, and Title VII. In his brief in response to Defendant’s summary judgment motion, he
specifically limits retaliation to Title VII. Pl.’s Resp. 1, 16-18. As Plaintiff makes it unequivocally clear that he is no
longer pursuing retaliation under the ADA or ADEA, the court determines that there is no reason for it to address
these claims, as they have been withdrawn by Plaintiff and are no longer before the court.
3

As Weems did not file an appendix, all other citations to the appendix refer to that of Defendant DISD.

Memorandum Opinion and Order - Page 2

(“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

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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

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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

Memorandum Opinion and Order - Page 5

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 25455.
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

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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
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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.”

Memorandum Opinion and Order - Page 8

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

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[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
sufficient to raise a fact issue precluding summary judgment.
Pl.’s Br. in Resp. to Def.’s Mot. for Summ. J. 15 (hereafter, “Pl.’s Resp.”). Defendant counters
that “the fact [that] Plaintiff allegedly needed to use the assistance of a motorized scooter for one
week and a walking cane on a periodic basis for the remainder of the school year has no bearing
on the assessment of whether he had a disability under the ADA.” Def.’s Br. in Supp. of Mot. for
Summ. J. 24 (hereafter, “Def.’s Br.”).
In Cannon, the plaintiff had surgery to repair his torn rotator cuff in 2010; however, the
surgery was unsuccessful, and his injury limited his arm movement. Cannon, 813 F.3d at 588. In
2011, Cannon applied for a job as a field engineer with Jacobs Filed Services, a construction
company, and it offered him the job. Id. On the same day after Jacobs Field Services received
Cannon’s Medical Clearance form that detailed a list of accommodations, it determined that
Cannon was physically incapable of performing the job and withdrew his job offer. Id. at 588-89.
The Fifth Circuit stated that “the ADA includes ‘lifting’ in its list of major life activities” and that
“Cannon’s shoulder injury is a qualifying disability if it ‘substantially limits’ his ability to perform
such tasks.” Id. at 591. “Cannon and his doctor both stated that he is unable to lift his right arm
above shoulder level and that he has considerable difficulty lifting, pushing, or pulling objects with
Memorandum Opinion and Order - Page 10

his right arm.” Id. at 591. The Fifth Circuit determined that Cannon’s injury “qualifie[d] as a
disability under the more relaxed standard.” Id.
A knee surgery certainly may substantially limit working, walking, and standing, which
are classified as major life activities under 42 U.S.C. § 12102. In Weems’s deposition, he testified
that 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. 29.4 The
evidence, however, does not prove, or raise a genuine dispute of material fact, that Weems suffered
a substantial limitation due to his knee injury. By way of example, unlike the doctor in Cannon,
Weems’s doctor did not state that he would have “considerable difficulty” or be “unable” to
perform any major life activity. Instead, Weems’s work restrictions and conditions only cautioned
DISD as to the manner in which he could perform certain major life activities.
With respect to Plaintiff’s contention that his knee injury limited his ability to teach,
Plaintiff fails to identify or set forth evidence in the record as to how his ability to teach was
substantially limited. Weems was able to work and teach his Speech class. Weems testified that
he “was able to do the job with very minimal inconvenience to the district.” App. 51. The record
reflects that Weems had surgery on his knee on Thursday, February 14, 2013, and he returned to
work on Monday, February 18, 2013. App. 29. Before he returned to work, DISD had approved
Plaintiff to take leave under the FMLA; however, Weems did not accept the extended leave. App.
31. He instead requested that his FMLA status be changed from extended leave to intermittent

Defendant disputes the existence of a doctor’s note; however, at the summary judgment stage the court is required
to resolve all disputed facts in favor of the nonmoving party. The court, therefore, will consider the note as existing
at this stage.
4

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leave. App. 31. Moreover, Weems states that his physical impairment was temporary and that
before the school year was over he only felt the effects of the “disability” from time to time. App.
51. From time to time means “once in a while: occasionally.” Merriam-Webster’s Collegiate
Dictionary 1309 (11th ed. 2014).
Plaintiff presents no evidence to support that his knee injury substantially limited his ability
to work, walk, stand, or perform any other major life activity as compared to most people in the
general population. At best, Plaintiff’s doctor’s note demonstrated that he was able to perform
some functions for only a limited amount of time; however, no specifics were provided by Weems
or his doctor. Further, Weems has not presented evidence of DISD not abiding by the doctor’s
note, as there is no description or definition of what constitutes “walking for long distances” or
“standing for long amounts of time.” Moreover, Weems never stated how far he had to walk or
how long he had to stand while he monitored the cafeteria and metal detectors. Accordingly, on
this scant record, the court cannot reasonably conclude or infer that DISD violated the doctor’s
restrictions and conditions, or that Weems was disabled. The court fully appreciates that the 2008
Amendments to the ADA broadened the concept or definition of disability to be more inclusive;
however, the court does not believe Congress intended it to be so broad as to include someone like
Weems when the evidence is so substantially lacking as to the parameters of his physical
impairment.
For the reasons stated herein, Weems does not satisfy the broader postamendment ADA
definition of a disabled person, as he presents no evidence of teaching or any other major life
activity being substantially limited. Accordingly, the court determines that there is no genuine
dispute of material fact that Plaintiff was not disabled under the ADA.

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3.

Whether Plaintiff was Regarded as Disabled

With respect to whether Plaintiff has been regarded as disabled under the ADA, Plaintiff
contends that he has presented evidence of him being regarded as disabled in his affidavit.
Plaintiff’s affidavit states that that “Basurto was aware of [his] disability.” Weems Aff. 1. Plaintiff
contends that the statements on page 19 of Defendant’s memorandum in support of its summary
judgment motion are also evidence of Basurto’s knowledge of Plaintiff’s disability.
Defendant responds that Weems was not regarded as disabled as a matter of law because
his knee injury was “transitory and minor.” DISD further argues that the evidence establishes that
Plaintiff was not regarded as disabled; and Plaintiff presents no evidence of the causal connection
between being allegedly perceived as disabled and the nonrenewal of his teaching contract.
The ADA covers individuals that have been discriminated against because they are
“regarded as having . . . an actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §§ 12102(1)(C), 3(1)(A).
A person, however, is not “regarded as” disabled if his or her impairment is “transitory and minor.”
42 U.S.C. §§ 12102(1)(C), 3(1)(B). “A transitory impairment is an impairment with an actual or
expected duration of 6 months or less.” Id.
Weems’s statement that Basurto knew about his “disability” is a conclusory statement.
Basurto knew that Weems had surgery and that he had some limitations physically, which is a far
cry from saying that Weems was disabled under the Act. While Basurto knew about Weems’s
surgery and asked what was wrong with his knee, this does not mean that Basurto regarded Weems
as being disabled. Weems makes an impermissible inference regarding what Basurto knew or
said.

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Plaintiff returned to work within days after his knee surgery. App. 28. He applied for and
received leave under the FMLA, and then he changed the status of his leave from “extended” to
“intermittent.” App. 31. Despite receiving intermittent leave, he only used two days of leave over
the remaining four months of the school year. Id. By the end of the school year, Weems used his
walking cane only periodically. App. 29. Further, Weems’s workplace restrictions were only in
place for three months, as they went into effect after his surgery in February and were lifted by his
doctor in May 2013. App. 29, 94. By the end of the school year, Weems only felt his disability
from time to time. App. 51. The evidence, therefore, demonstrates that all restrictions were lifted
as of May 13, 2013, and he was free to return to his regular duties. Plaintiff identifies no evidence
to refute this point. The court agrees with Defendant that there is no genuine dispute as to any
material fact that Weems’s knee injury was transitory and minor, and as a matter of law he was
not regarded as disabled.
The court has carefully reviewed the parties’ arguments, and it agrees with Defendant that
there is no genuine dispute as to any material fact that Weems was not disabled or regarded as
disabled under the ADA. Weems, therefore, has failed to raise a genuine dispute of material fact
with respect to the first prong necessary to establish a prima facie case of disability discrimination,
and Defendant is entitled to judgment as a matter of law on this claim.
4.

Legitimate, Nondiscriminatory Reason and Pretext

Even if the court assumes that Weems has established a prima facie case of disability
discrimination, Defendant has set forth programmatic changes or budget reductions as a legitimate,
nondiscriminatory reason for the nonrenewal of Plaintiff’s contract. There is simply no competent
summary judgment evidence in the record to establish, or raise a genuine dispute of material fact,
that DISD intentionally discriminated against Weems because he was disabled or regarded as being

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disabled. In other words, Weems fails to establish that the nonrenewal of his contract was
pretextual.

All that is in the record concerning his alleged disability is Basurto’s statement

inquiring about what happened to his knee. Aside from his conjecture, speculation, and subjective
belief, which are not competent summary judgment evidence, Weems presents nothing to support
his claim of disability discrimination.
B.

Age Discrimination

Defendant contends that it is entitled to summary judgment on Plaintiff’s ADEA claim.
Defendant argues that Plaintiff’s claim for age discrimination fails as a matter of law, as he presents
no evidence that he was replaced by someone younger or that his contract was not renewed because
of his age. Further, DISD argues that it articulated a legitimate, nondiscriminatory reason for not
renewing Weems’s contract, as its decision was based on programmatic changes or budget
reductions. DISD contends that Plaintiff presents no evidence that but for his age, his contract
would have been renewed. Defendant also contends that Plaintiff’s claimed damages are limited
because he failed to mitigate them by seeking other comparable employment.
Plaintiff contends that he presented evidence to show that but for his age he would not have
been fired.5 Plaintiff contends that Defendant’s reason based on program changes is a pretext for
discrimination, as he could have been placed in other vacant language arts positions or test
coordinator position. Further, Plaintiff contends that Defendant’s reason based on budget changes
is a pretext for discrimination because, after his contract was not renewed, the school added a
Junior ROTC teacher that was not allotted for in the DISD middle school staffing plan. Plaintiff
Plaintiff’s citations often are improper, and it is unclear in many instances what evidence Plaintiff cites to support
his statements. By way of example, his brief on several pages has an “Id.” citation for his arguments; however, the
preceding full citation is a Supreme Court case, which is not evidence to support his argument. Pl.’s Resp. 10-12.
Moreover, throughout Plaintiff’s brief, he made statements and identified no evidence in the record to support his
position. Unfortunately, this task was left for the court to perform, which is something no litigant should do, as the
court is not obligated to scour or sift through the record to find evidence in support of a party’s position. Ragas v.
Tennessee Gas Pipeline Co., 136 F. 3d 455, 458 (5th Cir. 1998).
5

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contends that the evidence presents a genuine dispute of material fact as to whether he was
discharged but for his age.
1.

Legal Standard for an ADEA Claim

The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).
Unlike Title VII, the ADEA does not authorize an alleged mixed-motives age discrimination claim.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009). Instead, a plaintiff bringing a disparatetreatment claim under the ADEA must prove that age was the “but-for” cause of the challenged adverse
employment action. Id.; Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). It is, therefore,
insufficient under the ADEA for a plaintiff to show that age was a motivating factor. Gross, 557 U.S.
at 175. “But-for” cause means the cause without which the challenged adverse employment action or
event would not have occurred. Leal v. McHugh, 731 F.3d 405, 415 (5th Cir. 2013) (citation omitted).

A plaintiff may prove employment discrimination with either direct or circumstantial
evidence. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005) (citing Portis v.
First Nat’l Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir. 1994)). As there is no direct
evidence that DISD discriminated against Weems because of his age, Plaintiff must rely on
circumstantial evidence to prove his case or raise a genuine dispute of material fact.
The burden-shifting framework set forth in McDonnell Douglas Corporation, 411 U.S. at
802-04, applies to ADEA cases based on circumstantial evidence of discrimination. Jackson v.
Cal–Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010). To establish a prima facie case
of age discrimination, a plaintiff must show that: “(1) he was discharged; (2) he was qualified for
the position; (3) he was within the protected class at the time of discharge; and (4) he was either i)
replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise
Memorandum Opinion and Order - Page 16

discharged because of his age.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007)
(citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004)); Machinchick v. PB
Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005).
Once a plaintiff establishes a prima facie case, the defendant must set forth a legitimate,
nondiscriminatory reason for the employment action it took against the plaintiff. Id. at 350. This
is a burden of production, not persuasion, on the defendant’s part, and it “can involve no credibility
assessment.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). “If the [defendant]
articulates a legitimate, non-discriminatory reason for the employment decision, the plaintiff must
then be afforded an opportunity to rebut the employer’s purported explanation, to show that the
reason given is merely pretextual.” Moss, 610 F.3d at 922. “In determining whether the plaintiff’s
rebuttal precludes summary judgment, ‘[t]he question is whether [the plaintiff] has shown that
there is a genuine dispute of material fact as to whether this reason was pretextual.’” Id. (citation
omitted). Pretext may be shown “either through evidence of disparate treatment or by showing that
the employer’s proffered explanation is false or unworthy of credence.” Jackson, 602 F.3d at 37879 (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (internal quotation marks
omitted)).
2.

Analysis
a.

Prima Facie Case

For purpose of the prima facie case, Defendant argues that Plaintiff fails to establish a
genuine dispute of material fact regarding the last element of his prima facie case  whether he
was either (i) replaced by someone outside the protected class, (ii) replaced by someone younger,
or (iii) otherwise discharged because of his age. The court, therefore, focuses solely on whether
Plaintiff has presented evidence to support the last element of his prima facie case.

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Defendant argues and provides evidence that DISD has not hired another Speech teacher
to replace Weems. In his declaration, Robert Abel states the following:
There has not been a Speech course taught at Spence Middle School
(“Spence”) since Rodger Weems’s (“Weems”) non-renewal in the 2012-2013
school year. Speech is not a core content class. Rather, Speech is an elective course
that can be [] taught as an independent course or it can be covered by core content
English teachers in their lesson plans. After the elimination of Speech in 2012-2013
school year, other teachers within the Language Arts department incorporated
aspects of Speech into their lesson plans. Teacher enrollment at Spence for the
2013-2014 school year was five fewer teachers than those enrolled in the 20122013 school year.
App. 240. Weems produces no evidence to rebut Abel’s declaration. Weems, therefore, must
prove that he was otherwise discharged because of his age. Defendant contends that Weems makes
conclusory statements that Miles engaged in a pattern of discriminating against older employees,
and Weems does not substantiate these statements with competent evidence. Also, Defendant
contends that Weems’s claim that he was discharged because of his age is barred by his failure to
exhaust administrative remedies. Defendant further contends that, “by failing to assert any factual
allegations relating to a ‘pattern’ of age discrimination in the Charge he filed with the EEOC,”
Weems failed to exhaust his administrative remedies. Def.’s Br. 35.
Plaintiff’s response does not address Defendant’s argument that Weems has not presented
evidence that he was otherwise discharged because of his age. Instead, Plaintiff’s response
addresses only whether Defendant presented a legitimate, nondiscriminatory reasons for Weems’s
discharge.
The court has reviewed the evidence in the record, and it agrees with Defendant that
Plaintiff presents no evidence to raise a genuine dispute of material fact that he was otherwise
discharged because of his age. Weems’s statements that he was otherwise discharged because of
his age are conclusory and speculative, and they do not constitute competent summary judgment

Memorandum Opinion and Order - Page 18

evidence. By way of example, Weems testified during his deposition that he 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.
Weems, however, is unable to recall who made these statements. App. 45. Weems also testified
that he noticed a severe change in the average experience of DISD teachers. App. 45. Weems said
that the basis for these statements is “anecdotal observation.” App. 45. The first statement is
hearsay, and the second statement is conclusory; thus neither constitutes competent summary
judgment evidence. Further, Weems’s affidavit is replete with conclusory and hearsay statements
and statements without any context, which provide no evidence to show that he was otherwise
discharged because of his age.
For these reasons, Weems fails to present evidence that he was otherwise discharged
because of his age, and there is no genuine dispute of material fact that Weems fails to prove a
prima facie case for his ADEA claim. Accordingly, Defendant is entitled to judgment as a matter
of law on this claim.
b.

Legitimate, Nondiscrimatory Reason and Pretext

Even if the court assumes that Weems has established a prima facie case of age
discrimination, Defendant has set forth programmatic changes or budget reductions as a legitimate,
nondiscriminatory reason for the nonrenewal of Plaintiff’s contract. There is simply no competent
summary judgment evidence in the record to establish, or raise a genuine dispute of material fact,
that DISD intentionally discriminated against Weems because of his age. In other words, Weems
fails to establish that the nonrenewal of his contract was pretext for intentional age discrimination.
All that is in the record concerning alleged age discrimination is Weems’s statement that “old age”
caused the injury to his knee. Thus, it was Weems who injected age into the equation, not

Memorandum Opinion and Order - Page 19

Defendant. Aside from his conjecture, speculation, and subjective belief, which are not competent
summary judgment evidence, Weems presents nothing to support his claim of intentional age
discrimination. He has not shown that his age was the “but for” cause of the nonrenewal of his
contract. Accordingly, DISD is entitled to judgment as a matter of law on Weems’s ADEA claim.
c.

Failure to Exhaust Administrative Remedies

Defendant also contends that Plaintiff’s disparate impact age discrimination claim is barred
as a matter of law because he did not exhaust his administrative remedies as they pertain to this
claim. The record is not fully developed regarding this argument, and the court has concerns that
certain evidence is taken out of context and, therefore, is misleading. Because of the state of the
record on this issue, the court declines to address Defendant’s argument regarding this issue.
C.

Retaliation Claims in Violation of the ADA, ADEA, and Title VII
1.

Legal Standard for Retaliation

As previously noted in footnote 2, Plaintiff only asserts a retaliation claim under Title VII.
As he has withdrawn or abandoned his retaliation claims under the ADA and ADEA, they are no
longer before the court, and the court will not address them.
It is “an unlawful employment practice for an employer to discriminate against any of [its]
employees . . . because [the employee] has opposed any practice made an unlawful employment
practice” under Title VII, or “because [the employee] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C.
§ 2000e-3(a); see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001). Whether the
employee opposes an unlawful practice or participates in a proceeding against the employer’s
activity, the employee must hold a reasonable belief that the conduct he opposed violated Title
VII. Long v. Eastfield Coll., 88 F.3d 300, 305 (5th Cir. 1996).

Memorandum Opinion and Order - Page 20

To establish a prima facie case of retaliation in this circuit, a plaintiff must show that: (1)
he engaged in a protected activity; (2) he experienced an adverse employment action following the
protected activity; and (3) a causal link existed between the protected activity and the adverse
employment action. McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (footnote
and citation omitted); Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001);
Mota v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001). The
establishment of a prima facie case gives rise to an inference of retaliation. Montemayor, 276 F.3d
at 692. This inference, in turn, shifts the burden of production to the defendant, who must then
articulate a legitimate, nondiscriminatory or nonretaliatory reason for the challenged employment
action. McCoy, 492 F.3d at 557. Once a defendant articulates such a reason, the inference of
discrimination or retaliation raised by the prima facie showing drops from the case. Montemayor,
276 F.3d at 692.
At this juncture, the plaintiff bears the burden of establishing that the employer’s stated
reason is a pretext for the real retaliatory purpose. McCoy, 492 F.3d at 557 (citation omitted).
“Title VII retaliation claims must be proved according to traditional principles of but-for causation,
not the lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions of the
employer.” University of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). If the
employee fails to prove, or raise a genuine dispute of material fact, that the employer’s real reason
is a pretext for its allegedly retaliatory conduct, the defendant is entitled to summary judgment.
See McCoy, 492 F.3d at 561-62.
In Burlington Northern & Santa Fe Ry. Co. v. White, the Supreme Court held that, because
the discrimination and retaliation provisions of Title VII have different statutory language and

Memorandum Opinion and Order - Page 21

different purposes, “the antiretaliation provision, unlike the substantive provision, is not limited to
discriminatory actions that affect the terms and conditions of employment.” 548 U.S. 53, 64
(2006). Consistent with this view, the Court held that a plaintiff claiming retaliation under Title
VII must show that a reasonable employee would have found the alleged retaliatory action
“materially adverse” in that “it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. at 68 (quotation marks and citation omitted). In
evaluating whether actions are materially adverse, the Court went on to hold that “petty slights,
minor annoyances, and simple lack of good manners will not” deter or dissuade a reasonable
employee from making or supporting a charge of discrimination, and therefore they do not
constitute conduct that is “materially adverse.” Id. at 68.
2.

Retaliation in Violation of Title VII6

Defendant contends that Plaintiff presents no evidence that he has engaged in any protected
activity under Title VII. Defendant further contends that Plaintiff’s alleged advocacy is not a
protected activity, as “Plaintiff cannot point to a single instance where he opposed a specific
discriminatory practice by Dallas ISD[,] nor did Plaintiff ever make a charge, testify, assist, or
participate in any manner in an investigation, proceeding, or hearing under Title VII during his
employment with Dallas ISD.” Def.’s Br. 39. Defendant also argues that Plaintiff cannot
“establish the necessary causal connection between any alleged protected activity and his nonrenewal,” as Basurto and Miles were unaware of his alleged advocacy when they decided to
recommend his contract for nonrenewal. Id. at 39-40.

DISD contends that “Miles is Black, so it defies logic that he would harbor hatred towards the NAACP.” Def.’s Br.
21. DISD is wrong in making this argument. Historically and to this day, all Blacks or African Americans do not
embrace the NAACP. To say simply that a Black person cannot hate or discriminate against another Black person or
Black organization is incorrect and ignores Black history and culture. Black support for the NAACP, or any other
predominantly Black organization, is not always monolithic.
6

Memorandum Opinion and Order - Page 22

Plaintiff counters that DISD’s argument fails, as it is “entirely logical to assume that an
employer could retaliate against an employee advocating against unfair practices in general,
believing it would be only a matter of time before the employee got around to his employer.” Pl.’s
Resp. 18. Further, Plaintiff contends that the record contains conflicting evidence as to whether
Miles and Basurto were aware of Weems’s advocacy activities with the NAACP or Alliance AFT.
In support of his argument, Weems cites to his affidavit in which he states that “Mike Miles was
aware of my advocacy activities with Dallas NAACP and should have been aware of my advocacy
activities with Alliance AFT. Roberto Basurto was at minimum aware of my advocacy activities
with the Alliance AFT and should have been aware of my advocacy activities with the NAACP.”
Weems Aff. 1. Further, Plaintiff contends that Defendant’s “legitimate, non-retaliatory reason for
discharging Plaintiff, the elimination of speech as a separate course,” is not a “neutral” reason, as
“[o]ther positions were open for which Plaintiff was qualified, but he was never chosen.” Pl.’s
Resp. 16, 18.
Plaintiff does not explain or describe how his involvement with the NAACP and Alliance
AFT constitute engaging in a protected activity under Title VII. There is no evidence that he
opposed any practice made an unlawful employment practice by Title VII; or that he made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing
under Title VII. Moreover, Weems states that none of his NAACP initiatives and proposals related
to his employment with DISD. App. 55. As he has not engaged in a protected activity, as a matter
of law, he fails to provide facts to satisfy the first prong to establish a prima facie case of retaliation
under Title VII.
Further, even if the court were to conclude that Plaintiff has engaged in protected activity
and that he suffered an adverse employment action, he fails to show any causal connection between

Memorandum Opinion and Order - Page 23

the protected activity and his discharge (the nonrenewal of his contract). At best, Weems has a
subjective belief that there is a casual connection; however, his subjective belief is insufficient to
demonstrate a causal link between his protected activity and the adverse employment action. See,
e.g., Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) (holding that
discrimination cannot be shown simply by a plaintiff’s “subjective belief that [defendant]
discriminated against him”).
For the reasons stated herein, Weems did not engage in a protected activity. Moreover,
even if he engaged in a protected activity, he fails to establish, or raise a genuine dispute of material
fact, that a causal connection existed between the protected activity and the nonrenewal of his
contract. Accordingly, Weems’s prima facie case of retaliation fails, and DISD is entitled to
judgment as a matter of law on this claim.
IV.

Other Outstanding Claims and Defense Arguments
With respect to any purported claim for disparate-impact7 age discrimination and the

defunding of the learning centers, Plaintiff concedes that those claims were not pled and are not
before the court. The court, therefore, will not address them. DISD asserted other arguments for
summary judgment. The court found it unnecessary to address those arguments in deciding
Defendant’s Motion for Summary Judgment.

7

The Supreme Court has made the following distinction between “disparate treatment” and “disparate impact” claims:
“Disparate treatment” ... is the most easily understood type of discrimination. The employer simply
treats some people less favorably than others because of their race, color, religion [or other protected
characteristics.] Proof of discriminatory motive is critical, although it can in some situations be
inferred from the mere fact of differences in treatment....
“[C]laims that stress ‘disparate impact’ [by contrast] involve employment practices that are facially
neutral in their treatment of different groups but that in fact fall more harshly on one group than
another and cannot be justified by business necessity. Proof of discriminatory motive ... is not
required under a disparate-impact theory.”

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) (citation omitted).
Memorandum Opinion and Order - Page 24

V.

Motion to Strike
Also pending is a motion to strike and objections to Weems’s summary judgment evidence.

DISD contends that Weems’s affidavit contains inadmissiable of hearsay, statements not based on
personal knowledge, conclusory statements, statements made on the basis of subjective belief,
conflicting testimony between Plaintiff’s deposition testimony and his later filed affidavit; and
includes of a DISD policy that was not in effect at the time of Plaintiff’s discharge. As stated
previously, Weems filed no response to the motion to strike and objections.
Defendant contends that Weems’s affidavit contains three statements that contradict his
deposition testimony. First, DISD contends that Weems’s statement that there were openings at
Spence for “teachers of language arts, reading, and/or social studies” contradicts his deposition
testimony that he only knew of two vacancies during the 2013-2014 academic year for an English
Language Arts teacher and Test Coordinator. These statements are not contradictory, as the use
of “or” means that there could have been just one opening in Language Arts.
Second, Defendant contends that Weems’s statements regarding Miles’s and Basurto’s
knowledge of his involvement with Alliance AFT contradict his deposition testimony in which he
states that he does not have evidence of their knowledge. This statement is not contradictory, as
Weems’s affidavit states what Miles and Basurto knew or should have known, and the affidavit
does not identify contradictory evidence to support this statement.
Further, DISD contends that Weems’s statement that Basurto knew or should have known
that he was involved with the NAACP contradicts his deposition testimony in which he is asked,
“Do you have any personal knowledge as to whether Principal Basurto knew that you were
involved with the NAACP?” He responds, “I don’t know the answer to that.” This statement does
not contradict his deposition, as the previous question asked, “Are you alleging that Principal

Memorandum Opinion and Order - Page 25

Basurto knew about your involvement with the NAACP?” and Weems responded, “He knew or
should have known.” The court has reviewed these statements and determines that they are not
contradictory. In any event, none of the statements would alter the decision reached by the court.
The court therefore, overrules, DISD’s objections.
With respect to the DISD policy attached to Weems’s response, the court sustains DISD’s
objection, as the document is not authenticated and does not establish that the policy was in effect
at the time Weems’s teaching contract was not renewed in 2013. The policy attached shows an
issue date of April 2015, and the court does not know which, if any, parts were in effect when
Weems’s contract was not renewed.
Finally, with respect to all other objections asserted by DISD, they are denied as moot
because the court did not consider any of Plaintiff’s “evidence” that did not satisfy the standard
set forth in Section II of this opinion. In any event, even if the “objected to” materials were
considered, such consideration would not affect the ruling herein made with respect to Defendant’s
Motion for Summary Judgment.
VI.

Conclusion
For the reasons stated herein, the court determines that no genuine dispute of material fact

exists with respect to Plaintiff’s claims of disability discrimination under the ADA, age
discrimination under the ADEA, and Title VII retaliation. Defendant is, therefore, entitled to
judgment as a matter of law on these claims. Accordingly, the court grants Defendant’s Motion
for Summary Judgment (Doc. 32); and dismisses with prejudice this action. Judgment will issue
by separate document as required by Federal Rule of Civil Procedure 58.

Memorandum Opinion and Order - Page 26

It is so ordered this 26th day of May, 2017.

_________________________________
Sam A. Lindsay
United States District Judge

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