DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT i

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

NATHANIEL KING §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 4:22-CV-929-P

§

§

DALLAS-FORT WORTH §

INTERNATIONAL AIRPORT BOARD, §

§

Defendant. §

DEFENDANT DALLAS-FORT WORTH

INTERNATIONAL AIRPORT BOARD’S

BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

I. NATURE OF THE CASE.........................................................................................................1

II. SUMMARY OF THE MOTION...............................................................................................2

III. STATEMENT OF FACTS........................................................................................................2

A. Plaintiff’s Employment with DFW as a Civilian Security Officer. ...................................2

B. Plaintiff’s First Short-Term Disability Leave of Absence (November 9, 2019 to January 

13, 2020).............................................................................................................................3

C. Plaintiff is Temporarily Assigned to the E Dock on Modified Duty. ................................4

D. Plaintiff’s Modified Duty Assignment Ends......................................................................5

E. Plaintiff’s Second Short-Term Disability Leave of Absence (April 25, 2020 to August 

18, 2020).............................................................................................................................5

F. Plaintiff Requests a Reasonable Accommodation..............................................................6

1. Plaintiff requests an accommodation based on physical limitations. .........................6

2. Plaintiff’s request cannot be accommodated in the CSO position..............................7

3. Plaintiff requests to be reassigned to accommodate his restrictions but does not 

apply for any available positions. ...............................................................................8

G. Plaintiff is Administratively Terminated for Exhausting the Maximum Amount of ShortTerm Disability Leave Allowed Under DFW Policy.........................................................9

IV. ARGUMENT AND AUTHORITIES .....................................................................................10

A. Summary Judgment Standard...........................................................................................10

B. DFW is entitled to summary judgment on Plaintiff’s disability discrimination claim. ...10

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ii

1. Plaintiff’s discrimination claim fails as a matter of law because he is not a qualified 

individual...................................................................................................................11

2. Plaintiff cannot show a causal nexus between his disability and any alleged adverse 

employment action. ...................................................................................................16

3. Plaintiff did not suffer an adverse employment action by DFW allegedly refusing to 

reassign him because he did not apply for any positions in order to be considered 

for reassignment........................................................................................................19

C. DFW is Entitled to Summary Judgment on Plaintiff’s Retaliation Claim. ......................20

1. Plaintiff cannot establish a causal connection between his request for 

accommodation and his administrative termination.................................................20

2. Plaintiff cannot show a causal connection between his request for accommodation 

and DFW’s alleged refusal to reassign him..............................................................22

3. Plaintiff cannot show that he suffered an adverse employment action by DFW 

allegedly refusing to reassign him. ...........................................................................22

D. Even if Plaintiff could make his prima facie case for discrimination and retaliation, 

DFW is entitled to summary judgment because it has articulated a legitimate 

nondiscriminatory, nonretaliatory reason for Plaintiff’s termination...............................23

V. CONCLUSION .......................................................................................................................23

VI. PRAYER .................................................................................................................................24

TABLE OF AUTHORITIES

Cases

Adams v. Travelers Indem. Co. of Conn.,

465 F.3d 156, 164 (5th Cir. 2006).................................................................................................10

Burch v. City of Nacogdoches,

174 F.3d 615, 620 (5th Cir. 1999) ................................................................................................14

Burger v. Cent. Apartment Mgmt., Inc., 

168 F.3d 875, 879 (5th Cir. 1999)...........................................................................................20, 22

Chandler v. City of Dall., 

2 F.3d 1385, 1393 (5th Cir. 1993).................................................................................................12

Custard v. Alief Indep. Sch. Dist., 

No. CIV.A. H-04-1882, 2005 WL 1960058, at *5 (S.D. Tex. Aug. 16, 2005).............................12

EEOC v. Chevron Phillips Chem. Co., LP,

570 F.3d 606, 615 (5th Cir. 2009).................................................................................................10

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT iii

EEOC v. LHC Grp., Inc.,

73 F.3d 688, 694 (5th Cir. 2014)....................................................................................... 10-12, 16

Evans v. City of Houston, 

246 F.3d 344, 354 (5th Cir. 2001).................................................................................................21

Foreman v. Babcock & Wilcox Co., 

117 F.3d 800, 810 (5th Cir. 1997) ................................................................................................14

Hernandez v. City of Corpus Christi, 

820 F. Supp. 2d 781, 797 (S.D. Tex. 2011) ..................................................................................20

Jenkins v. Cleco Power, LLC, 

487 F.3d 309, 315 (5th Cir. 2007) ................................................................................................14

Kapche v. City of San Antonio, 

304 F.3d 493 (5th Cir. 2002).........................................................................................................12

Laxton v. Gap Inc., 

333 F.3d 572, 578 (5th Cir. 2003) ................................................................................................23

Lynch Prop., Inc. v. Potomac Ins. Co. of Ill., 

140 F.3d 622, 625 (5th Cir. 1998).................................................................................................10

Lyons v. Katy Indep. Sch. Dist., 

964 F.3d 298, 305 (5th Cir. 2020) ................................................................................................21

McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973) .....................................................................................................................10

McIntyre v. San Antonio Water Sys., 

No. 16-CV-399 (RCL), 2017 WL 1532608, at *9 (W.D. Tex. Apr. 26, 2017) ............................23

Pegram v. Honeywell, Inc., 

361 F.3d 272, 282 (5th Cir. 2004) ................................................................................................19

Pinkerton v. Spellings, 

529 F.3d 513519 (5th Cir. 2008)...................................................................................................19

Raggs v. Miss. Power & Light Co., 

278 F.3d 463, 471-72 (5th Cir. 2002) ...........................................................................................21

Seaman v. CSPH, Inc., 

179 F.3d 297, 301 (5th Cir. 1999).................................................................................................21

Simon v. Honeywell, Inc., 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT iv

642 F.2d 754, 755 n. 3 (5th Cir. 1981)..........................................................................................20

Swanson v. Gen. Servs. Admin., 

110 F.3d 1180, 1188 (5th Cir. 1997).............................................................................................21

Thompson v. Microsoft Corp., 

2 F.4th 460, 470 (5th Cir. 2021) ...................................................................................................19

Tirumalasetti v. Caremark RX, Inc., 

No. 3:05-CV-1847-B, 2007 WL 9712193, at *6 (N.D. Tex. Feb. 20, 2007) ...............................23

Zenor v. El Paso Healthcare Sys., Ltd., 

176 F.3d 847, 853 (5th Cir. 1999) ................................................................................................11

Statutes

42 U.S.C. § 12111 .................................................................................................................. 11-12

42 U.S.C. § 12112 ........................................................................................................................10

FED. R. CIV. P. 56(a) .....................................................................................................................10

Regulations

29 C.F.R. § 1630...................................................................................................................... 11-12

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

NATHANIEL KING §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 4:22-CV-929-P

§

§

DALLAS-FORT WORTH §

INTERNATIONAL AIRPORT BOARD, §

§

Defendant. §

DEFENDANT DALLAS-FORT WORTH

INTERNATIONAL AIRPORT BOARD’S

BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Dallas-Fort Worth International Airport Board (“DFW” or “Defendant”), Defendant in the 

above-referenced case, files this Brief in Support of its Motion for Summary Judgment pursuant 

to Federal Rule of Civil Procedure 56. In support, DFW respectfully shows the Court as follows:

I. NATURE OF THE CASE

DFW operates the Dallas-Fort Worth International Airport (“DFW Airport”) and employs 

over 2,000 individuals. This case involves an employment dispute arising out of DFW’s decision 

to administratively terminate Plaintiff Nathaniel King’s (“Plaintiff”) employment as a Civilian 

Security Officer. Plaintiff alleges that DFW violated the Americans with Disabilities Act and the 

ADA Amendments Act (collectively the “ADA”) by: (1) discriminating against Plaintiff because 

of his disability in (a) denying his request for a reasonable accommodation, (b) refusing to reassign 

him, and (c) administratively terminating him; and (2) retaliating against Plaintiff for requesting a 

reasonable accommodation by (a) refusing to reassign him, and (b) administratively terminating 

him.

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2

II. SUMMARY OF THE MOTION

DFW is entitled to summary judgment on all of Plaintiff’s claims against it. First, DFW is 

entitled to summary judgment on Plaintiff’s disability discrimination claim because: (1) Plaintiff

was not a qualified individual as he could not perform the essential functions of his position with 

or without an accommodation, and he cannot identify any available position for which he was 

qualified and to which he could have been reassigned; (2) Plaintiff cannot establish a causal nexus 

between his disability and DFW’s alleged refusal to reassign him; (3) Plaintiff cannot establish a 

causal nexus between his disability and his termination because he was administratively terminated 

after exhausting the maximum amount of leave available under DFW policy; and (4) DFW 

allegedly refusing to reassign Plaintiff does not constitute an adverse employment action.

DFW is also entitled to summary judgment on Plaintiff’s retaliation claim because: (1) 

Plaintiff cannot show a causal connection between his request for accommodation and DFW’s 

alleged refusal to reassign him because he did not submit any applications for reassignment; (2) 

Plaintiff cannot show a causal connection between his request for accommodation and his 

termination because his administrative termination was not in temporal proximity to his request 

for accommodation; and (3) DFW allegedly refusing to reassign Plaintiff does not constitute an 

adverse employment action because he did not apply to any positions for reassignment.

Finally, DFW is entitled to summary judgment as Plaintiff was administratively terminated 

under a maximum allotted leave policy, which constitutes a legitimate nondiscriminatory and 

nonretaliatory reason, and Plaintiff has no evidence to show such reason is pretext.

III. STATEMENT OF FACTS

A. Plaintiff’s Employment with DFW as a Civilian Security Officer.

On February 8, 2016, Plaintiff was hired by DFW as a Civilian Security Officer (“CSO”) 

in the Airport Security Division (“ASD”). (C. Young Decl. at ¶ 3 and Ex. 1; App. 007). CSOs are 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3

responsible for various security functions at DFW Airport. (A. Baucham Decl. at ¶ 3 and Ex. 1; 

App. 002 and 004-06). CSOs are assigned to various posts around DFW Airport on a rotating 

schedule by shift. (Id. at ¶ 4; App. 002). 

On each shift, a CSO is assigned to one of more than 25 posts managed by ASD. (Id.). The 

number of active posts at any given time depends on the business needs of DFW Airport. (Id.). 

Likewise, the number of CSOs assigned to each post depends on the number of active posts, the 

duties required at each active post, and available CSOs on each shift. (Id.). 

The various posts a CSO could be assigned to include inspecting vehicles and individuals 

entering through Air Operations Area gates, performing terminal security patrols by foot, 

performing perimeter vehicle patrols, and inspecting individuals entering through the employee 

portals and their personal belongings. (Id. at ¶ 5 and Ex. 1; App. 002 and 004-06). CSOs are 

expected to be able to perform any of the following at any given time as the duties required at each 

post differ and may change at a moment’s notice, as is the nature of a security role:

• Climbs into, out of, and search under vehicles;

• Works in awkward positions such as kneeling, stooping, or 

squatting; 

• Drives to locations on DFW Airport property, including the Air 

Operations Area;

• Sits for extended periods of time; and

• Walks for extended periods of time.

(Id. at ¶ 6 and Ex. 1; App. 002 and 004-006). 

B. Plaintiff’s First Short-Term Disability Leave of Absence (November 9, 2019 to 

January 13, 2020).

During his employment with DFW, Plaintiff requested and received short-term disability 

leave on several occasions. (M. Young Decl. at ¶¶ 4-5 and 9-10; App. 040-42). DFW policy allows 

for a maximum period of 180 calendar days (173 calendar days plus a seven-day waiting period) 

of short-term disability leave during a rolling 12-month period. (Id. at ¶ 3 and Ex. 1; App. 040 and 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 4

045). As such, for purposes of this Motion, DFW focuses only on the short-term disability leave

taken by Plaintiff in his last year of employment with DFW.

On November 14, 2019, Plaintiff requested short-term disability leave through Matrix 

Absence Management, Inc. (“Matrix”) to begin on November 9, 2019 (“First STD Leave”). (Id. at 

¶ 4 and Ex. 2; App. 040 and 049). DFW contracts with Matrix as its third-party administrator for 

review and decision on employee leaves of absence, including requests for short-term disability 

leave and requests for accommodations. (Id. at ¶ 2; App. 039-40). On January 13, 2020, Plaintiff

returned to work from his First STD Leave with the following restrictions:

• Unable to stand greater than 20 minutes per hour;

• No repetitive bending, squatting, or stooping;

• Limit walking to less than one mile per work day; and

• Limit driving time to less than two hours per work day.

(Id. at ¶ 5 and Ex. 3; App. 040 and 050). During his First STD Leave, Plaintiff used 65 days of 

short-term disability leave. (Id. at ¶ 5; App. 040).

C. Plaintiff is Temporarily Assigned to the E Dock on Modified Duty. 

To meet his restrictions, Plaintiff was temporarily assigned to a CSO post at the E Dock 

under DFW’s Modified Duty Policy. (M. Young Decl. at ¶ 6 and Ex. 4; App. 040 and 051). The E 

Dock is not a standard post through which CSOs rotate. (A. Baucham Decl. at ¶ 8; App. 003).

Rather, ASD assigns individuals on modified duty to work at the docks, including E Dock. (Id.). 

Based on his restrictions, DFW determined that this was the only place for Plaintiff to work with 

his restrictions. (C. Young Decl. at ¶ 4 and Ex. 1; App. 007-08 and 010). Notably, the duration of 

Plaintiff’s restrictions was unknown when he returned in January 2020. (M. Young Decl. at Ex. 3; 

App. 050). 

On January 28, 2020, Plaintiff requested that he be moved from his position on the E Dock 

to an administrative role within ASD. (M. Young Decl. at ¶ 7 and Ex. 6; App. 040-41 and 056). 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 5

After determining his request was not due to any change to his restrictions (i.e., a medical reason),

his request was denied. (Id.). Additionally, it should be noted that there was not an administrative 

position available, and operationally the E Dock assignment was the only space available. (Id. at 

¶ 7 and Ex. 5; App. 040-41 and 054).

D. Plaintiff’s Modified Duty Assignment Ends.

On April 1, 2020, Plaintiff informed DFW that he had seen his physician on March 18, 

2020, his limitations had not changed, and his limitations were permanent. (M. Young Decl. at ¶ 

8 and Exs. 7 and 3; App. 041, 058, and 050; see Matrix Decl. Ex. 1; App. 211). At this point, 

Plaintiff had been on a modified duty assignment for more than 60 days. (M. Young Decl. at ¶ 8; 

App. 041). DFW policy provides that a modified duty assignment is temporary and may be 

extended or ended as determined by DFW. (Id. at Ex. 4; App. 051). On April 20, 2020, after careful 

consideration, DFW informed Plaintiff that April 24, 2020, would be his last day on modified duty 

assignment because his restrictions had not changed and the duration of his restrictions remained 

unknown. (Id. at ¶ 8 and Ex. 8; App. 041 and 059). Plaintiff was advised of his option to apply for 

short-term disability with Matrix. (Id.).

E. Plaintiff’s Second Short-Term Disability Leave of Absence (April 25, 2020 to August 

18, 2020).

On April 20, 2020, Plaintiff submitted an application for short-term disability leave to

Matrix, which he requested to begin on or about April 25, 2020. (M. Young Decl. at ¶ 9 and Ex. 

9; App. 041 and 060). On June 18, 2020, Matrix denied Plaintiff’s application for short-term 

disability leave due to inadequate medical documentation. (Id.). On September 21, 2020, following 

the denial of his request for a reasonable accommodation and during his attempts to be reassigned, 

Plaintiff appealed Matrix’s June 18 denial of his application for short-term disability leave. (Id. at 

¶ 9 and Exs. 10 and 11; App. 041, 061, and 062). 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 6

On November 4, 2020, Matrix reversed its decision to deny Plaintiff’s application for shortterm disability and retroactively granted Plaintiff short-term disability leave beginning April 25, 

2020. (Id. at ¶ 9 and Ex. 12; App. 042 and 064). Because he had already used 65 days of shortterm disability leave during his First STD Leave, Plaintiff was approved for and received 115 days 

of short-term disability leave as a result of his successful appeal. (Id. at ¶ 9; App. 042). The 

maximum leave allowed under DFW policy is 180 days. (Id. at Ex. 2; App. 045). Accordingly, 

Plaintiff exhausted the maximum amount of short-term disability leave allowed on August 19, 

2020. (Id. at ¶ 10 and Ex. 14; App. 042 and 066). Because Plaintiff was in the appeal process, this 

fact was not established until Matrix ruled on his appeal (Id. at ¶¶ 9-10; App. 041-42). 

F. Plaintiff Requests a Reasonable Accommodation.

1. Plaintiff requests an accommodation based on physical limitations.

Following the end of his modified duty assignment, Plaintiff pursued a second short-term 

disability leave of absence, set forth above. (M. Young Decl. at ¶ 9; App. 041-42). About two 

months later, he also took steps to pursue a reasonable accommodation. (Id. at ¶ 11; App. 042).

Around the time Matrix denied his second short-term disability leave application, Plaintiff began 

working with Matrix on his request for a reasonable accommodation. (Id. at ¶ 11 and Ex. 15; App. 

042 and 069). On July 31, 2020, Plaintiff provided to Matrix a request for the following restrictions 

to accommodate his conditions related to his knees, hips, and back:1

• 30 minutes out of vehicle every two hours;

• No sit to stand more than five times per 30 minutes;

• High tables for inspections;

• No lifting of heavy items more than five times per hour;

• For every 45 minutes of walking, 15 minutes of sitting;

• No standing more than 20 minutes per hour; and

• Use of an elevator or use stairs only once every two hours. 

1 Plaintiff also identified flat feet as a disability; however, he admits he did not request an accommodation for that 

condition. (Pl.’s Dep. at 140:18-25 and 141:1-2; App. 138).

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 7

(Id. at ¶ 11 and Ex. 16; App. 042-43 and 081-83). 

2. Plaintiff’s request cannot be accommodated in the CSO position.

On August 18, 2020, an interactive meeting was scheduled to discuss Plaintiff’s request 

for accommodation, which Plaintiff did not attend. (M. Young Decl. at ¶ 12 and Ex. 17; App. 043 

and 084). On August 25, 2020, a second interactive meeting was scheduled to discuss Plaintiff’s 

request for accommodation. (Id. at ¶ 12 and Ex. 18; App. 043 and 085). Plaintiff, ASD Senior 

Security Manager Barry Stevens, Senior ADA Compliance and Risk Analyst Mark Young, Senior 

Human Resources Consultant Carl Young, and Matrix Senior ADA Specialist Timm Richardson 

attended the meeting. (Id.).

During the interactive meeting, Plaintiff confirmed again that his restrictions were 

permanent. (Aug. 25, 2020 Mtg Tr. at 4:19-25 and 5:1-8; App. 202).2 Stevens then reviewed the 

CSO job description and essential job functions, focusing on the fact that the job requires flexibility 

and that the CSOs be able to handle whatever is required of them at any post to which they may 

be assigned. (Id. at 7:9-17; App. 203). Plaintiff asked if it was possible to be assigned to a slower 

post with less activity. (Id. at 9:11-25, 10:1, 11:1-4; App. 203-04). Stevens responded that it was 

not possible because all CSOs are expected to be able to work at any post they may be assigned to 

and post assignments are made without regard to the individual CSO. (Id.; see also A. Baucham 

Decl. at ¶ 7; App. 003). Plaintiff next asked why he could not continue working as he had been 

with co-workers assisting him when he was unable to perform certain job duties. (Aug. 25, 2020 

Mtg Tr. at 13:5-25, 14:1-3, and 15:4-13; App. 204-205).3 Stevens referenced his previous response 

2 Plaintiff recorded the August 25, 2020 interactive meeting without the permission of the attendees in violation of 

DFW policy. (C. Young Decl. at ¶ 8 and Ex. 5; App. 009 and 023; Pl.’s Dep. at 234:22-25 and 235:1-12; App. 162). 

The recording was produced by Plaintiff as Plaintiff Bates 3134, which DFW had transcribed by a certified court 

reporter for this motion. (Aug. 25, 2020 Mtg Tr.; App. 201-08). 3 Plaintiff’s wife Kandice Miller was present in the room with Plaintiff for the phone call and can be heard on the 

recording. (Pl.’s Dep. at 234:22-25 and 235:1-12; App. 162).

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 8

and explained that DFW could not guarantee that he would always be assigned to work with a 

courteous CSO who would agree to do Plaintiff’s job duties for him. (Id.).

3. Plaintiff requests to be reassigned to accommodate his restrictions but does not apply 

for any available positions.

Ultimately, after consideration of all the facts and circumstances, which included review 

of ASD operational objectives and CSO functions, department size, number of CSOs performing 

the job, costs, and safety considerations, DFW decided that it had to deny Plaintiff’s request for an 

accommodation. (M. Young Decl. at ¶ 13; App. 043; see also Aug. 25, 2020 Mtg Tr. at 16:10-20; 

App. 205). Plaintiff acknowledged that his restrictions could not be accommodated in his current 

CSO position4 and asked about being reassigned to another position within DFW Airport. (M. 

Young Decl. at ¶ 13; App. 043; see also Aug. 25, 2020 Mtg Tr. at 16:21-25; App. 205). Plaintiff 

was directed to DFW’s online job portal to review open positions he may be qualified for. (M. 

Young Decl. at ¶ 13; App. 043; see also Aug. 25, 2020 Mtg Tr. at 23:10-12 and 23-25; App. 207). 

Importantly, at no point during the call did anyone promise or guarantee that Plaintiff would be 

reassigned to another position. (M. Young Decl. at ¶ 13; App. 043; C. Young Decl. at ¶ 5; App. 

008). Further, DFW does not have a policy that contemplates reassignment for medical reasons. 

(M. Young Decl. at ¶ 13; App. 043).

It should be noted that Plaintiff had, on multiple occasions, applied for other positions 

within DFW and thus was aware of the process DFW used for reassignment. (C. Young Decl. ¶ 6; 

App. 008). On August, 26, 2020, Plaintiff contacted Mark Young regarding two positions he 

believed he was qualified for and to which he wished to be reassigned. (M. Young Decl. at ¶ 14 

and Ex. 19; App. 043 and 087-89). Mark Young advised Plaintiff to apply for the positions 

4 Contrary to his acknowledgment during the call, Plaintiff later contends that he was able to perform the essential 

functions of his job as CSO with the physical limitations. (M. Young Decl. at ¶ 15 and Ex. 20; App. 044 and 090-

102). Notably, Plaintiff did not mention this during the interactive meeting. 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 9

“through the normal process,” which Plaintiff did not do. (Id.; Pl’s Dep. 225:24-25 and 226:1-4; 

App. 159-160). When Plaintiff continued to ask Mark Young about applying for open positions, 

Mark Young directed Plaintiff to Carl Young in Human Resources5 regarding open positions at 

DFW Airport. (M. Young Decl. at ¶ 14 and Ex. 19; App. 043 and 087). On multiple occasions, 

Carl Young also directed Plaintiff to DFW’s online job portal. (C. Young Decl. at ¶ 6 and Exs. 3 

and 4; App. 008, 017-18). Despite being continually advised to apply through DFW’s online job 

portal for open positions for which he was qualified in order to be considered for reassignment, 

and despite being familiar with DFW’s process to apply for reassignment, Plaintiff did not submit 

applications for any jobs between August 25, 2020 and his administrative termination on

December 11, 2020. (Pl’s Dep. 225:24-25 and 226:1-4; App. 159-160).

G. Plaintiff is Administratively Terminated for Exhausting the Maximum Amount of 

Short-Term Disability Leave Allowed Under DFW Policy.

On December 11, 2020, Plaintiff was administratively terminated for exhausting the 

maximum amount of short-term disability allowed within a 12-month period under DFW policy.

(M. Young Decl. at ¶ 16 and Ex. 14; App. 044 and 066). Importantly, Plaintiff does not dispute 

that he accrued the maximum amount of short-term disability leave available under DFW policy. 

(Pl.’s Dep. at 157:21-23; App. 142).

5 Plaintiff believes that DFW was somehow hiding open positions from him. However, that is not the case. DFW 

authorizes a certain number of positions each year and assumes a vacancy percentage rate when drafting the year’s 

budget. (C. Puthoff Dep. 33:10-25 and 34:1-2; App. 185). Although Plaintiff may believe there were certain vacant 

budgeted positions he could have been qualified for, such positions must also have had a request to fill in order to be 

posted and available for applications rather than part of the assumed vacancy percentage. (Id. at 36:12-18; App. 185). 

Further, as Plaintiff was requesting reassignment, DFW was actively reducing staffing numbers due to the downturn 

in business caused by the COVID-19 pandemic. (Id. at 34:23-25 and 35:1-4; App. 185).

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 10

IV. ARGUMENT AND AUTHORITIES

A. Summary Judgment Standard.

Summary judgment is proper when there is no genuine dispute of material fact. Fed. R. 

Civ. P. 56(a). “The moving party bears the initial burden of identifying those portions of the 

pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue 

of material fact, but is not required to negate elements of the nonmoving party’s case.” Lynch 

Prop., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998). If the non-moving party 

fails to offer proof concerning an essential element of its case, all other facts are immaterial and 

no genuine issue of fact exists. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th 

Cir. 2006).

B. DFW is entitled to summary judgment on Plaintiff’s disability discrimination claim. 

The ADA prohibits employers from discriminating against qualified individuals on the 

basis of disability. 42 U.S.C. § 12112. In ADA discriminatory-termination actions, an employee 

may: (1) present direct evidence of discrimination because of a disability; or (2) rely on 

circumstantial evidence and proceed under the burden-shifting analysis set out in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973). EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th 

Cir. 2014). Plaintiff has no direct evidence of discrimination because of a disability. Therefore, 

Plaintiff’s case should be analyzed under the McDonnell Douglas burden-shifting framework. Id.

Under the McDonnell Douglas analysis, Plaintiff bears the initial burden of establishing a prima 

facie case of discrimination. See LHC Grp.,773 F.3d at 694 (citing EEOC v. Chevron Phillips 

Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009)). If he is successful, the burden then shifts to 

DFW to articulate a legitimate, nondiscriminatory reason for terminating Plaintiff. See id. Finally, 

the burden shifts back to Plaintiff to show that DFW’s proffered reason is pretextual. See id. 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 11

To establish a prima facie case of discrimination, Plaintiff “must prove (1) that he has a 

disability; (2) that he was qualified for the job; [and] (3) that he was subject to an adverse 

employment action on account of his disability.” Id. at 695 (alteration in original) (quoting Zenor 

v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999)). Here, Plaintiff alleges DFW

discriminated against him by: (i) denying his request for a reasonable accommodation; (ii) refusing 

to reassign Plaintiff to positions he applied for between August and November 2020; and (iii) 

terminating his employment. (Pl.’s Compl. at ¶¶ 24-25; Doc. 1). As set forth below, DFW is 

entitled to summary judgment on Plaintiff’s disability discrimination claim because Plaintiff 

cannot satisfy his prima facie case as to elements 2 and 3. 

1. Plaintiff’s discrimination claim fails as a matter of law because he is not a qualified 

individual.

Under the ADA, the term “qualified individual with a disability” means an individual with 

a disability who, with or without reasonable accommodation, can perform the essential functions 

of the employment position that such individual holds or desires. 42 U.S.C. § 12111. Thus:

[w]hile the ADA focuses on eradicating barriers, the ADA does not relieve a 

disabled employee or applicant from the obligation to perform the essential 

functions of the job. To the contrary, the ADA is intended to enable disabled 

persons to compete in the work-place based on the same performance standards and 

requirements that employers expect of persons who are not disabled. 

29 C.F.R. § 1630. Therefore, to be considered a qualified individual, Plaintiff must show that: (1) 

he can perform the essential functions of the job despite his disability; or (2) if he is unable to 

perform the essential functions of the job, that a reasonable accommodation by the employer would 

enable him to perform those functions. LHC Grp., Inc., 773 F.3d at 697 (5th Cir. 2014).

a. Plaintiff’s request for accommodation based on his physical limitations would 

not have allowed him to perform the essential functions of the CSO position.

Plaintiff now contends (which he did not during the meeting on August 25) that he could 

perform the essential functions of the CSO position with the physical limitations provided in his 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 12

request for a reasonable accommodation. Plaintiff’s argument, which he came up with after his 

request for accommodation was denied, assumes certain duties are marginal, rather than essential, 

functions of the CSO position. However, Plaintiff is mistaken and, even with the accommodations 

he requested, he would not have been able to perform the essential functions of the CSO position. 

A function is “essential” if it bears “more than a marginal relationship” to the employee’s 

job. Chandler v. City of Dall., 2 F.3d 1385, 1393 (5th Cir. 1993), holding modified on other 

grounds as discussed in Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002) (per curiam). 

When considering whether a function is essential, courts owe deference to an employer’s position 

description: “consideration shall be given to the employer’s judgment as to what functions of a job 

are essential, and if an employer has prepared a written description before advertising or 

interviewing applicants for the job, this description shall be considered evidence of the essential 

functions of the job.” 42 U.S.C. § 12111(8). “The inquiry into whether a particular function is 

essential initially focuses on whether the employer actually requires employees in the position to 

perform the functions that the employer asserts are essential.” LHC Grp., Inc., 773 F.3d at 698

(citing 29 C.F.R. § 1630.2(n)).

Here, it is undisputed that DFW has a written job description for the CSO position. DFW 

asserts that the duties, responsibilities, and efforts listed in the CSO job description are essential 

functions of the position as DFW expects all CSOs to be able to perform all of the requirements 

of any post to which they may be assigned. (A. Baucham Decl. at ¶ 3; App. 002). Indeed, Plaintiff 

does not dispute that the duties listed in the job description are the essential functions of the CSO 

position.

Q: And, Mr. King, are you an expert on what essential functions 

of the job are?

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 13

A: If it’s not listed on the job description, it’s not an essential 

function. So it’s not very difficult to ascertain what’s an 

essential function.

Q: So everything listed on the job description would be an 

essential function.

A: Exactly.

(Pl.’s Dep. at 158:24-25 and 159:1-6; App. 143). Plaintiff also acknowledged that he could be 

assigned to any post and he understood that “you had to come in every day and expect to be at any 

one of those spots.” (Id. at 93:17-25 and 94:1; App. 126-127). Plaintiff further confirmed that he 

had performed, and all CSOs were expected to perform, the following essential functions.

• Inspected individuals and vehicles entering through the Air 

Operations Area gates. (Id. at 98:21-25, 99:1-4, and 104:20-23; 

App. 128-29).

• Perform security patrols on foot of the terminals, Skylink 

station, baggage claim, and curbside areas. (Id. at 106:17-25, 

107:1-3, 108:1-17, 118:14-25, 119:1-10, 122:21-25, 123:1,

123:13-15, and 129:10-14; App. 130, 133-35).

• Performing perimeter and roving security vehicle patrols. (Id. at

123:16-25, 124:1-9, 126:21-25, and 127:1-4; App. 134-35).

• Verifying individuals entering through the employee portals and 

inspecting their personal belongings. (Id. at 109:18-25, 110:1-6, 

and 114:20-22; App. 130-32).

• Climbing into, out of, and searching under vehicles. (Id. at

135:9-21; App. 137).

• Working in awkward positions. (Id. at 136:7-13; App. 137).

• Driving to locations on DFW Airport property. (Id. at 123:16-

25, 124:1-9, 126:21-25, and 127:1-4; App. 134-35).

• Sitting for extended periods of time (Id. at 138:22-25; App. 138).

• Walking for extended periods of time (Id. at 139:1-4; App. 138).

Thus, the duties, responsibilities, and functions listed in the CSO job description, including 

the foregoing, are essential functions. With the physical limitations provided in his request for 

reasonable accommodation, Plaintiff was unable to perform the essential functions of the CSO 

position.

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 14

b. Plaintiff’s request for reassignment fails because he cannot identify any 

positions that were available and for which he was qualified.

Plaintiff contends that DFW should and could have accommodated him by reassigning him 

“to any of the positions for which he applied for in August, September, and November 2020.”

(Pl.’s Compl. at ¶ 24). It is well established that, in order for a request for reassignment to be a 

reasonable accommodation, “a position must first exist and be vacant.” Burch v. City of 

Nacogdoches, 174 F.3d 615, 620 (5th Cir. 1999) (quoting Foreman v. Babcock & Wilcox Co., 117 

F.3d 800, 810 (5th Cir. 1997)). “[P]laintiff bears the burden of proving that an available position 

exists that he was qualified for and could, with reasonable accommodations, perform.” Jenkins v. 

Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007).

Plaintiff cannot identify any position that: (1) was actually open and available between 

August and November 2020; (2) for which he was qualified; and (3) for which he could perform 

the essential functions. Plaintiff contends that he applied for 41 jobs between August, September, 

and November 2020. (Pl.’s Compl. at ¶ 20). First, it is undisputed that Plaintiff did not apply for 

any positions through DFW’s online job portal between August and November 2020, despite being 

aware of the process and being advised to do so in order to pursue reassignment. (Pl.’s Dep. at 

157:8-11, 225:24-25, and 226:1-4; App. 159; see also Pl.’s Job Application Portal Screenshots; 

App. 213-215). Instead, Plaintiff contends he applied for the 41 positions by emailing Mark Young 

and Carl Young because that is what he was supposedly instructed to do during the August 25, 

2020 interactive meeting in order to pursue reassignment. (Pl.’s Dep. at 157:1-11; App. 142). 

Plaintiff claims this now despite being aware of the process DFW had in place for employees to 

apply for reassignment, despite being told on multiple occasions to apply for positions through the 

online portal, and despite the fact that the recording of the meeting he made does not instruct him 

to apply for jobs for reassignment by sending an email to either Mark Young or Carl Young. 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 15

In his deposition, Plaintiff admitted that he: (1) did not obtain copies of most of the job 

descriptions for the identified positions; and (2) is assuming he is qualified and can perform the 

essential functions of the job based on his interpretation of the job title and his general lay 

knowledge about what each of the positions likely required:

1. Tactical Telecommunicator (Id. at 165:1-4; App. 144); 

2. Parking Guest Contract Supervisor (Id. at 168:10-19; App. 145); 

3. Concessions Compliance Analyst (Id. at 170:18-21; App. 146); 

4. Access DFW Trusted Agent (Id. at 170:25 and 171:1-2; App. 146); 

5. Business Specialist (Id. at 174:1-19; App. 147); 

6. Develop & Leasing Administrator (Id. at 174:20-25 and 175:1-16; App. 

147); 

7. Communications and Marketing Specialist (Id. at 175:19-25 and 176:1-13; 

App. 147); 

8. Multimedia Coordinator (Id. at 176:16-21; App. 147); 

9. Customer Programs Trainer (Id. at 177:17-25 and 178:1-23; App. 148); 

10. Market Research Analyst (Id. at 179:1-8; App. 148); 

11. Survey Technician (Id. at 179:11-23 and 180:1-5; App. 148); 

12. Construction Inspector (Id. at 180:6-16; App. 148); 

13. Plans Examiner/Inspector (Id. at 180:19-25 and 181:1-2; 148); 

14. Quality Control Technician (Id. at 181:5-20; App. 148); 

15. Systems Performance Analyst (Id. at 181: 23-25 and 182:1-18; App. 148-

49); 

16. Automotive Technician (Id. at 182:21-25 and 183:1-3; App. 149); 

17. Lead Automotive Technician (Id. at 183:6-14; App. 149); 

18. Radio and Mobile Electrician System Technician (Id. at 183:17-24; App. 

149); 

19. Electrician II (Id. at 184:2-16; App. 149); 

20. Signs & Marketing Technician (Id. at 185:7-15; App. 149); 

21. Electronics Technician (Id. at 185:18-25 and 186:1-9; App. 149-50); 

22. Lead Electronics Technician (Id. at 186:12-18; App. 150); 

23. Environmental Analyst (Id. at 186:21-25 and 187:1-4; App. 150); 

24. Waste/Recycling Technician (Id. at 187:11-25; App. 150); 

25. Talent Acquisition Specialist (Id. at 188:5-13; App. 150); 

26. AOC Communications Specialist (Id. at 188:16-25 and 189:1-11; App. 

150); 

27. Transportation Business Specialist (Id. at 192:13-19; App. 151); 

28. Contract Services Quality Agent (Id. at 192:22-25 and 193:1-5; App. 151);

29. Contract Administrator (Id. at 193:8-13: App. 151); 

30. Civilian Detention Officer (Id. at 193:16-23; App. 151); and

31. Research & Analytics Specialist and Risk Analyst (Id. at 194:12-21; App. 

152). 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 16

Further, Plaintiff agrees that he did not actually inform Carl Young that he was asking to 

be considered for the specific positions identified in his Complaint and to which he now claims 

DFW failed to reassign him. Instead, he sent an email to Carl Young demanding that Mr. Young 

submit his “resume to all ST3, and ST4 positions, and MP4 so that [he] can be considered for those 

positions.” (C. Young Decl. at Ex. 3; App. 017). Plaintiff also admits that he was not looking at 

the online job portal to identify the jobs that were open and available when he demanded that Carl 

Young submit his resume for these positions. (Pl.’s Dep. at 160-161; App. 143). 

Accordingly, Plaintiff did not show DFW and cannot now show the Court that most of the 

positions he supposedly applied to were open and available, that he was qualified for any of the 

positions, or that he could perform the essential functions of the positions, making his request for 

reassignment unreasonable. In addition, as set forth above, the accommodation Plaintiff requested 

based on his physical limitations was not reasonable. As such, Plaintiff was not a qualified 

individual and his disability discrimination claim fails as a matter of law. 

2. Plaintiff cannot show a causal nexus between his disability and any alleged adverse 

employment action.

To make his prima facie case, Plaintiff must show that he was subject to an adverse 

employment action on account of his disability. LHC Grp., 773 F.3d at 695. Plaintiff must present 

evidence to establish a causal nexus between his termination and his disability. Id. Assuming 

arguendo that Plaintiff can show he was a qualified individual as to meet the second element of 

his disability discrimination claim, Plaintiff’s claim still fails because he cannot show that his 

termination or DWF’s alleged refusal to consider his applications for reassignment was based on 

such disability.

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 17

a. Plaintiff cannot show that DFW’s alleged refusal to reassigning him was on 

account of his disability.

Plaintiff alleges DFW refused to reassign him to any of the positions he applied for in 

August, September, or November 2020 because of his disability. (Pl.’s Compl. at ¶ 24.). To support 

this claim, Plaintiff relies on DFW’s knowledge of Plaintiff’s “difficulties in performing the 

Civilian Security Officer position” and an assumption that there were “desk jobs” which DFW 

deliberately withheld from him. (Id.). Plaintiff is mistaken. First, it is undisputed that Plaintiff did 

not apply for any “desk jobs” through DFW’s online job portal during the identified time period.

Plaintiff was aware of the process to apply for reassignment based on prior history, and he was 

also advised on multiple occasions to apply through the online job portal to be considered for 

reassignment. Because he did not submit any applications for reassignment, Plaintiff cannot show 

that DFW refused to reassign him because of his disability rather than the fact that he did not apply.

Second, even if Plaintiff had submitted any applications, he has no evidence that there were any 

available “desk jobs” that he was qualified for and could have filled without a reasonable 

accommodation, as alleged. DFW did not reassign Plaintiff because he did not apply for any 

positions for reassignment, not because of his disability.6

b. Plaintiff cannot show that his termination was on account of his disability.

Plaintiff alleges that DFW terminated him because of his disability in December 2020. 

(Pl.’s Compl. at ¶ 24.). Plaintiff contends that DFW deliberately withheld reassignment in order to 

exhaust Plaintiff’s short-term disability leave so that “he would have to be fired.” (Id.). Plaintiff’s 

argument is misguided.

6 Even assuming that the September 12 email to Carl Young constitutes an application for the Terminal Experience 

Manager position, Plaintiff was not qualified for that role based on his resume, and there were other candidates already 

being considered who did meet the qualifications. (C. Young Decl. at ¶ 6; App. 008).

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 18

Pursuant to its Short-Term Disability Policy, DFW administratively terminated Plaintiff 

for using more than 180 days of leave. Matrix is responsible for reviewing and making decisions 

on DFW’s employees’ requests for short-term disability leave. Whether an employee applies for 

and receives short-term disability leave is outside the control of DFW. In the instant case, Plaintiff 

used 65 days of short-term disability leave during his First STD Leave. He then had 115 days of 

available leave remaining. Matrix initially denied Plaintiff’s second application for short-term 

disability leave, but Plaintiff successfully appealed that denial. As a result, Matrix retroactively 

granted Plaintiff’s second application for short-term disability leave. Although aware that Plaintiff 

had appealed Matrix’s initial denial, DFW had no knowledge of the status of the appeal or the 

likely outcome until November 2020. (M. Young Decl. at ¶ 9; App. 041-42). In fact, DFW had 

limited knowledge of the reason Plaintiff’s second application for short-term disability leave was 

denied by Matrix in the first place. (M. Young Decl. at ¶ 9 and Exs. 9 and 10; App. 041-42 and 

159-60). DFW did not withhold reassignment while Plaintiff’s appeal was pending. DFW 

continued to correspond with Plaintiff concerning his request for reassignment, directing him to 

apply for open positions via the online job portal. Further, even after being informed of Matrix’s

decision to overturn its denial and the fact that Plaintiff would receive leave retroactively, DFW 

continued to correspond with Plaintiff about his request for reassignment, advising him to apply 

for open positions through the online job portal, which he did not do.

Plaintiff was administratively terminated for exhausting the maximum amount of leave 

available to him with his second application for short-term disability. Whether Plaintiff received 

short-term disability was entirely outside of DFW’s control as Matrix was responsible for the 

review and approval of such leave. In fact, Plaintiff’s job status was unchanged after he decided 

to appeal Matrix’s denial, which ultimately resulted in him receiving the remaining 115 days of 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 19

leave. (Id. at ¶ 9; App. 041-42). Therefore, there is no genuine issue for trial as to whether 

Plaintiff’s disability “actually play[ed] a role in [DFW’s] decision making process and [had] a 

determinative influence on the outcome.” Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 

2008). Plaintiff cannot make his prima facie case for disability discrimination, and summary 

judgment should be granted for DFW.

3. Plaintiff did not suffer an adverse employment action by DFW allegedly refusing to

reassign him because he did not apply for any positions in order to be considered for 

reassignment.

Even if Plaintiff were a qualified individual, Plaintiff cannot show Defendant’s refusal to 

reassign him was an adverse employment action. “Adverse employment decisions are ultimate 

employment decisions such as hiring, granting leave, discharging, promoting, compensating, or 

demoting.” Thompson v. Microsoft Corp., 2 F.4th 460, 470 (5th Cir. 2021) An employment 

decision that “does not affect job duties, compensation, or benefits” is not an adverse employment 

decision for purposes of stating a discrimination claim. Pegram v. Honeywell, Inc., 361 F.3d 272, 

282 (5th Cir. 2004). 

Plaintiff’s disability discrimination claim fails to the extent it is based on DFW’s alleged 

refusal to reassign him because, as set forth above, Plaintiff did not properly apply for any position 

for reassignment.

7 DFW requires an application through the online job portal in order to be 

formally considered for a position, which Plaintiff was well aware of based on his prior 

applications for reassignment, and which he did not do in this situation. Without a proper 

application, Plaintiff did not interview and was not even considered for any of the positions to 

7 To the extent that Plaintiff is claiming that he applied for the Terminal Experience Manager position, Carl Young 

did send King’s resume to the DFW Recruiter assigned to screen candidates for that role. (C. Young Decl. at ¶ 6; 

App. 008). Mr. Young did not share with the Recruiter any information about Plaintiff’s disability or request for 

accommodation. (Id.). Plaintiff was not qualified for that role based on his resume, and there were other candidates 

already being considered who did meet the qualifications. (Id.). Regardless, Plaintiff did not formally apply for that 

role via the online job portal. 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 20

which he allegedly applied.8 As such, Plaintiff’s alleged applications for reassignment do not 

constitute an ultimate employment decision because such requests could not have altered his status 

as an employee already hired by DFW. Cf. Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 

879 (5th Cir. 1999) (finding employee’s request for a purely lateral transfer does not qualify as an 

ultimate employment decision because the transfer would not have altered his status as an 

employee already hired by his employer). 

C. DFW is Entitled to Summary Judgment on Plaintiff’s Retaliation Claim. 

Plaintiff alleges DFW retaliated against him for requesting a reasonable accommodation 

by administratively terminating him on December 11, 2020. (Pl.’s Compl. at ¶ 26). DFW is entitled 

to summary judgment on Plaintiff’s retaliation claim because Plaintiff cannot satisfy his prima 

facie case of retaliation. Plaintiff cannot show a causal connection between his request for an 

accommodation and his administrative termination or DFW’s alleged refusal to consider Plaintiff’s 

applications for reassignment. Further, Plaintiff cannot establish that he suffered an adverse 

employment action by DFW allegedly refusing to consider his applications for reassignment. 

1. Plaintiff cannot establish a causal connection between his request for 

accommodation and his administrative termination.

In order to establish a prima facie case of retaliation under the ADA, Plaintiff must show 

that: “(1) he participated in an activity protected under the statute; (2) his employer took an adverse 

employment action against him; and (3) a causal connection exists between the protected activity 

8 DFW recognizes that some cases in the Fifth Circuit hold that an applicant need not apply through formal channels 

if there is other evidence showing that was not always required by the employer. Those cases are distinguishable from 

the case at bar for the reasons set forth in this Brief. In addition, there is no evidence in this case that DFW deviated 

from its hiring practices in situations not involving Plaintiff. See Simon v. Honeywell, Inc., 642 F.2d 754, 755 n. 3 

(5th Cir. 1981) (“[t]he fact that appellant may not have formally applied for the promotion . . . is not significant in 

light of the uncontradicted evidence that no formal application was necessary and that applicant was, in fact, 

considered for the promotions.”); Hernandez v. City of Corpus Christi, 820 F. Supp. 2d 781, 797 (S.D. Tex. 2011) 

(rejecting argument that plaintiff did not seek promotion because he did not submit a formal application where no 

formal application was necessary and plaintiff was interviewed and considered for the position).

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 21

and the adverse action.” Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999). To demonstrate 

a “causal connection” a plaintiff must demonstrate that the employer’s decision “was based in part 

on knowledge of the employee’s protected activity.” Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 

305 (5th Cir. 2020) (citations omitted). “Close timing between an employee’s protected activity 

and an adverse action against him may provide the ‘causal connection’ required to make out a 

prima facie case of retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 

1997). The Fifth Circuit has found a few months separation may support an inference of a causal 

nexus. See, e.g., Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (finding a period of 

four months sufficient to satisfy the causal requirement); Raggs v. Miss. Power & Light Co., 278 

F.3d 463, 471-72 (5th Cir. 2002) (finding a period of five months, standing alone, could not support 

an inference of a causal connection).

Plaintiff claims he was terminated in retaliation for requesting a reasonable 

accommodation. However, it was Plaintiff’s request for short-term disability and then his appeal 

of his second application for short-term disability leave that ultimately resulted in him exhausting 

the maximum amount of short-term disability leave available under DFW policy and, ultimately,

his administrative termination. Plaintiff submitted his request for accommodation on July 31, 2020. 

On September 18, 2020, after Plaintiff’s request for accommodation was denied on August 25, and 

while he was pursuing reassignment within DFW, Plaintiff appealed Matrix’s denial of his 

application for short-term disability leave. The appeal is handled within Matrix separately from 

Plaintiff’s request for accommodation. The claim is even reviewed by independent peer review, 

which accounts for some of the length of time it takes for the appeal when under review. DFW has 

no control or influence over the review or determination of employee applications for short-term 

disability leave. Further, Plaintiff’s request for accommodation on July 31, 2020 and 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 22

administrative termination on December 11, 2020 are far enough apart in timing that the only 

explanation for Plaintiff’s termination is his exhaustion of leave, not his request for 

accommodation.

2. Plaintiff cannot show a causal connection between his request for accommodation 

and DFW’s alleged refusal to reassign him.

Plaintiff contends DFW retaliated against him for requesting a reasonable accommodation 

by refusing to reassign him to any of the positions to which he allegedly applied. (Pl.’s Compl at 

¶ 26). However, as explained above, Plaintiff did not properly apply through DFW’s online job 

portal for any positions to be considered for reassignment. Even after being directed to apply 

through the online job portal numerous times, and despite Plaintiff understanding how the 

application process worked, Plaintiff failed to apply through the normal process. As such Plaintiff 

cannot establish that it was his request for accommodation, rather than the lack of proper 

applications or lack of qualification for such positions,

9 that caused DFW’s alleged refusal to 

reassign him. 

3. Plaintiff cannot show that he suffered an adverse employment action by DFW 

allegedly refusing to reassign him.

Nor can Plaintiff establish that he suffered an adverse employment action as he cannot 

show that he submitted any applications to DFW which it refused to consider. As set forth above, 

Plaintiff failed to apply for any positions to be considered for reassignment through DFW’s online 

job portal despite understanding the process for reassignment and despite being instructed to do 

so. Without a formal application, DFW had no application to refuse and Plaintiff could not have 

suffered an adverse employment action. Cf. Burger, 168 F.3d at 879.

9 See fn. 4, supra.

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 23

D. Even if Plaintiff could make his prima facie case for discrimination and retaliation, 

DFW is entitled to summary judgment because it has articulated a legitimate 

nondiscriminatory, nonretaliatory reason for Plaintiff’s termination.

Even if Plaintiff could establish a prima facie case of discrimination or retaliation, which 

he cannot, DFW has articulated a legitimate, non-discriminatory reason for terminating Plaintiff’s 

employment. Plaintiff was administratively terminated because he exhausted the maximum 

amount of short-term disability leave available under DFW policy. Courts in this circuit have 

repeatedly held that the neutral application of a reasonable leave policy is a legitimate 

nondiscriminatory nonretaliatory reason for termination. See McIntyre v. San Antonio Water Sys., 

No. 16-CV-399 (RCL), 2017 WL 1532608, at *9 (W.D. Tex. Apr. 26, 2017)) (applying maximum 

leave duration policy); Tirumalasetti v. Caremark RX, Inc., No. 3:05-CV-1847-B, 2007 WL 

9712193, at *6 (N.D. Tex. Feb. 20, 2007) (applying maximum leave duration policy); Custard v. 

Alief Indep. Sch. Dist., No. CIV.A. H-04-1882, 2005 WL 1960058, at *5 (S.D. Tex. Aug. 16, 2005)

(applying maximum allotted leave policy of 180 days).

Plaintiff must now produce substantial evidence indicating that the proffered legitimate 

nondiscriminatory and nonretaliatory reason is a pretext for discrimination in order to survive 

summary judgment. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). Plaintiff cannot produce 

any evidence to rebut DFW’s proffered reasons or to show that the reason is untrue and a pretext 

for discrimination. Indeed, Plaintiff admits that he exhausted the maximum amount of short-term 

disability leave available under DFW policy. As Plaintiff cannot produce any evidence that DFW’s 

proffered reason is pretext, DFW’s motion for summary judgment should be granted.

V. CONCLUSION

Plaintiff’s claims should be summarily dismissed as a matter of law. Plaintiff’s disability 

discrimination claim fails because Plaintiff cannot establish that he was a qualified individual 

under the ADA. Even if he were qualified, DFW’s alleged refusal to reassign him does not 

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 24

constitute an adverse employment action. Further, Plaintiff’s retaliation claim fails because 

Plaintiff did not properly apply for any position in order to be considered for reassignment and 

Plaintiff cannot establish a causal connection between his request for accommodation and his 

administrative termination or DFW’s alleged refusal to reassign him. Finally, Plaintiff cannot carry 

his ultimate burden of proof by showing DFW’s legitimate, nondiscriminatory and nonretaliatory

reason for terminating Plaintiff, that he exhausted the maximum amount of short-term disability 

leave under DFW policy, is pretext. Therefore, summary judgment on all of Plaintiff’s claims is 

proper.

VI. PRAYER

For the reasons given above, DFW respectfully requests that the Court grant its Motion for 

Summary Judgment, that Plaintiff’s lawsuit be dismissed in its entirety, that the Court award DFW

its costs, and that DFW be given all other relief to which it is justly entitled.

Respectfully submitted,

By: /s/ Caroline C. Harrison

Caroline C. Harrison 

State Bar No. 24046034

charrison@phamharrison.com

Spencer M. Mainka

State Bar No. 24116707

smainka@phamharrison.com

PHAM HARRISON, LLP

505 Pecan Street, Suite 200

Fort Worth, Texas 76102

(817) 632-6300

(817) 632-6313 – Fax

ATTORNEYS FOR DEFENDANT

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DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 25

CERTIFICATE OF SERVICE

The undersigned hereby acknowledges that a true and correct copy of the above-mentioned 

document was served in accordance with the Federal Rules of Civil Procedure on this the 9th day 

of June, 2023 on counsel for Plaintiff as follows:

Wes Dauphinot 

Law Offices of Wes Dauphinot, P.C.

900 West Abram

Arlington, Texas 76103

wes@dauphinotlawfirm.com

Hani F. Kobty

Kobty Law Firm

900 West Abram

Arlington, Texas 76103

hani@kotbylawfirm.com

ATTORNEYS FOR PLAINTIFF

/s/ Caroline C. Harrison

Caroline C. Harrison

Case 4:22-cv-00929-P Document 21 Filed 06/09/23 Page 29 of 29 PageID 512