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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GRETA CRAWFORD, §

§

Plaintiff, §

§

v. § Civil Action No. 3:04-CV-2619-L 

§

UNITED STATES OF AMERICA and § 

DEPARTMENT OF HOMELAND §

SECURITY, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the court are Federal Defendants’ Motion for Summary Judgment, filed November

8, 2005; Plaintiff’s Motion for Leave to Seal Appendix to Plaintiff’s Brief in Opposition to Motion

for Summary Judgment: Appendix Documents 14 and 33, filed November 28, 2005; Plaintiff’s

Motion for Partial Summary Judgment, filed May 5, 2006; and Plaintiff’s Unopposed Motion to

Continue Trial, filed July 17, 2006. After careful consideration of the motions, responses, reply,

appendices, record and applicable law, the court grants Federal Defendants’ Motion for Summary

Judgment; grants Plaintiff’s Motion to Seal Appendix to Plaintiff’s Brief in Opposition to Motion

for Summary Judgment: Appendix Documents 14 and 33; denies Plaintiff’s Motion for Partial

Summary Judgment; and denies as moot Plaintiff’s Unopposed Motion to Continue Trial.

I. Factual and Procedural Background

Plaintiff Greta Crawford (“Crawford” or “Plaintiff”) filed this action against the United

States of America (“United States”) and the Department of Homeland Security (“DHS”)

(collectively “Defendants”) on December 9, 2004. Crawford alleges, among other things, due

 

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process and equal protection violations, negligence, assault, harassment, conspiracy, retaliation and

discrimination. The court now sets forth the facts on which it relies to rule on the summary

judgment motions. In setting forth these facts, the court applies the standard set forth in the

following section. 

On May 4, 2002, Crawford, an African-American female, applied for the position of

immigration inspector with the DHS. The Office of Personnel Management (“OPM”) conducted

a background investigation of Crawford and determined that she was ineligible for the position

because of “misconduct or negligence in employment” and “criminal or dishonest conduct.”

Defendants’ App. at 22. The investigation revealed that Crawford was previously employed with

a law firm. Her former supervisor at the firm told the investigator that Crawford “was prone to

explode in tirades of foul language at the slightest provocation and stated that the government was

out to get her.” Id. at 33. The supervisor also stated that she “was asocial and demonstrated

aggressive distaste for her co-workers.” Id. The investigation also revealed that Crawford was

arrested and convicted of being drunk in public in June 1996. Id. at 16.

The OPM determined that Crawford was unsuitable for the position, provided her specific

information as to how it reached its determination, and gave her an opportunity to respond.

Crawford responded by letter on February 1, 2003. After reviewing Crawford’s response, the OPM

issued a final decision that she was unsuitable for employment as an immigration inspector.

Crawford appealed this decision to the Merit Systems Protection Board (“MSPB”) in June 2003.

A hearing was conducted before an administrative law judge (“ALJ”) in November 2003. The ALJ

upheld OPM’s decision. Crawford filed a petition for review of the decision with the MSPB on

January 21, 2004. The MSPB denied the petition. 

 

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Crawford’s claims are: 

1st Claim for Relief: Dismissal of Remaining Agency Charges and Finding

of Suitability; 

2nd, 3rd and 4th Claims for Relief: Due Process Deprivations and/or Failure to Adhere to

Regulatory Provisions and Prohibited Practices and Denial of Confrontation and CrossExamination; 

5th Claim for Relief: Retaliation for Whistleblowing;

6th Claim for Relief: Discrimination;

7th Claim for Relief: Negligence;

8th, 9th and 10th Claims for Relief[:] Right to Privacy and Contempt/Seals and Obstruction of

Justice;

11th Claim for Relief: Harassment and Intimidation;

12th Claim for Relief: Conspiracy;

13th Claim for Relief: Freedom of Expression;

14th Claim for Relief: Right to Association;

15th Claim for Relief: Equal Protection;

16th and 17th Claim[s] for Relief: Interference with Business Relations, and Injury to

Reputation;

18th Claim for Relief: Assault;

19th Claim for Relief: Abuse of Process;

20th Claim for Relief: Intentional Infliction of Emotional Distress;

21st Claim for Relief: Malicious Prosecution; 

22nd Claim for Relief: Spoliation; and

23rd Claim for Relief: Contract Claims.

See Plaintiff’s Complaint.

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Crawford filed this action on December 9, 2004. She asserted 23 claims against Defendants.1

On June 13, 2005, the court dismissed 20 of Crawford’s 23 claims. The remaining claims are

whether: (1) the administrative decision that Crawford is unsuitable for the immigration inspector’s

position was arbitrary, capricious, an abuse of discretion, and not supported by substantial evidence;

(2) Defendants violated the Whistleblower Protection Act; and (3) Crawford was subjected to

unlawful discrimination on the basis of her race, sex and disability. 

Defendants filed a motion for summary judgment on November 8, 2005. Defendants contend

that the MSPB correctly ruled that Crawford was unsuitable for the immigration inspector’s position,

as there was substantial evidence that Crawford engaged in misconduct or negligence in

 

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employment, and that she had engaged in criminal or dishonest conduct. The Defendants also

contend that summary judgment is proper as to Crawford’s whistleblower claim, as she can offer

no evidence to substantiate the claim. Finally, Defendants maintain that Crawford’s discrimination

claims should be dismissed, as she cannot carry her burden of demonstrating a prima facie case of

unlawful discrimination.

Crawford filed her motion for partial summary judgment on May 5, 2006. Crawford

contends that “the negative suitability determination was not supported by substantial evidence, and

was arbitrary and not in accord with law or procedure.” Plaintiff’s Brief at 1. She also maintains

that she made protected disclosures in an administrative proceeding and filed suit in January 2001

against the Department of Justice and others asserting violations of law and abuse of authority.

Crawford asserts that dissemination of the information she disclosed in the administrative

proceeding and lawsuit of January 2001 contributed to the unsuitability determination, and thus is

a violation of the Whistleblower Protection Act. Finally, she contends that there is direct evidence

that Defendants engaged in disability discrimination, when, as a part of the investigation, OPM

considered her mental health instead of her character or conduct. She further asserts that as a result

of OPM’s actions she suffered disparate treatment, and that she was discriminated against because

of her race, gender and disability. The court now considers the motions. 

II. Summary Judgment Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v.

 

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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 inferences drawn from the factual

record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court “may not make

credibility determinations or weigh the evidence” in ruling on motion for summary judgment.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-

55.

Once the moving party has made an initial showing that there is no evidence to support the

nonmoving party’s case, the party opposing the motion must come forward with competent summary

judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. 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.), cert. denied, 513

U.S. 871 (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 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.), cert. denied, 506 U.S. 832

(1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws

 

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Crawford maintains that Defendants’ motion for summary judgment is premature, as the court never

ruled on her motions for leave to file amended complaints. This assertion is erroneous. On February 9, 2006,

the court denied Plaintiff’s Motion to Amend Complaint, filed June 7, 2005; and Plaintiff’s Motion for Leave

to File Third Amended Complaint/Civil Action, filed October 24, 2005. On July 25, 2005, Crawford filed

Plaintiff’s Motion for Leave to Seal Second Amended Complaint/Civil Action. A motion for leave to file

a second amended complaint, however, was never before the court. There is no record that such a motion

was ever filed. 

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will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact

issues which 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. Analysis

A. Defendants’ Motion for Summary Judgment2

1. Finding of Unsuitability for Immigration Inspector

Defendants contend that the MSPB correctly ruled that Crawford was unsuitable for the

immigration inspector’s position. They maintain that substantial evidence supports the ALJ’s

finding that Crawford was unsuitable because of misconduct or negligence in employment, and that

she had engaged in criminal or dishonest conduct. Crawford counters that the MSPB’s decision was

arbitrary, an abuse of discretion, and unsupported by substantial evidence.

Crawford has asserted both discrimination and nondiscrimination claims. As such, this is

a “mixed case.” See Aldrup v. Caldera, 274 F.3d 282, 285 (5th Cir. 2001). Judicial review of the

MSPB’s decision in a mixed case appeal is governed by 5 U.S.C. § 7703. The applicable subsection

provides: 

[T]he court shall review the record and hold unlawful and set aside

any agency action, findings, or conclusions found to be–

 

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Subsection (b)(2) provides:

Cases of discrimination subject to the provisions of section 7702 of this title

shall be filed under section 717(c) of the Civil Rights Act of 1964 (42

U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in

Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair

Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable.

Notwithstanding any other provision of law, any such case filed under any

such section must be filed within 30 days after the date the individual filing

the case received notice of the judicially reviewable action under such

section 7702.

5 U.S.C. § 7703(b)(2).

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(1) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;

(2) obtained without procedures required by law, rule, or regulation

having been followed; or

(3) unsupported by substantial evidence;

except that in the case of discrimination brought under any section

referred to in subsection (b)(2) of this section, the employee or

applicant shall have the right to have the facts subject to trial de novo

by the reviewing court.

5 U.S.C. § 7703(c).3

“In reviewing the merits of the agency's decision, the court will not disturb its findings if

supported by substantial evidence based on the record as a whole.” Byrd v. Campbell, 591 F.2d 326,

329 (5th Cir. 1979). Substantial evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). The

court may not reweigh the evidence or substitute its own judgment for that of the MSPB even if this

court finds that the evidence preponderates against the MSPB’s decision. Warncke v. Harris, 619

F.2d 412, 416 (5th Cir.1980). 

 

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The court determines that a reasonable person could accept evidence that Crawford had a

propensity to “explode in tirades of foul language at the slightest provocation” and stated on

occasion that “the government was out to get her, ” as relevant evidence of Crawford’s conduct in

her prior employment at a law firm. See Defendants’ App. at 33; Plaintiff’s App. at 143-44. Such

evidence may also be viewed by a reasonable person as evidence of misconduct or negligence in

employment. Explosive tirades and the use of foul language is unacceptable conduct for an

employee. This inappropriate behavior would hinder other employees in the performance of their

duties, create an uncomfortable work environment, and raise concerns regarding Crawford’s ability

to deal effectively with the public in her position as an immigration inspector. 

The DHS’s director for hiring determined that, based on this evidence, Crawford was

unsuitable for the position of immigration inspector as applicants must “demonstrate that they are

mature, reliable, and capable of handling stressful situations.” Id. at 32. He was concerned

regarding Crawford’s emotional and mental stability. Id. 33. Immigration inspectors are required

to carry a firearm, and the DHS hiring director was concerned about Crawford’s reaction if she faced

a stressful situation while carrying a gun. Id. Thus the evidence of Crawford’s past behavior at

work was relevant and substantial evidence that supported Defendants’ conclusion that she was

unsuitable for the immigration inspector’s position. 

Crawford contends that she was wrongfully terminated, and that the law firm had a high

turnover rate. She maintains that she was not terminated for misconduct, but left the law firm

because she was being harassed and intimidated by third parties. She further maintains that the law

firm supervisor’s claim that she had societal or psychological issues that prevented her from working

is false. 

 

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Crawford’s contentions do not support her burden of showing that the MSPB’s decision was

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Other than

make allegations and conclusory assertions, Crawford does nothing to address her emotional

condition, her explosive tirades, use of foul language, or statements that the government is out to

get her. For example, responding that the law firm had a high turnover rate, or that her supervisor’s

opinion regarding her psychological condition is false, does nothing to establish that substantial

evidence was lacking for the director’s or the MSPB’s decision that she engaged in misconduct or

negligence in employment. 

The court finds that Defendants’ actions were not arbitrary or capricious, and that the finding

of misconduct or negligence in employment was supported by substantial evidence based on the

record as a whole. This court will not reweigh such evidence or substitute its own judgment for that

of the administrative law judge, who reviewed all the evidence, or the MSPB which denied

Crawford’s petition for a review of the ALJ’s decision. The court, therefore, will not disturb the

findings. 

Likewise, a reasonable person could accept the evidence of Crawford’s prior conviction for

being drunk in public as relevant evidence that Crawford engaged in criminal or dishonest conduct,

and thus was unsuitable for the position of immigration inspector. Crawford admitted on her

application for employment and in her deposition that she was arrested and convicted of the offense.

Id. at 16, 45-46. She contends, however, that the DHS should have not considered her prior

conviction, as it occurred in 1996. The DHS hiring director determined that, based on this evidence,

Crawford “may not live up to the high standards of conduct required of the position.” Id. at 41.

Such determination is reasonable. The finding that Crawford was unsuitable because of criminal

 

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conduct is supported by substantial evidence based on the record as a whole. The court, therefore,

will not disturb the finding.

 The court determines that the finding of the MSPB that Crawford was unsuitable for the

immigration inspector’s position, because of misconduct or negligence in employment and criminal

or dishonest conduct, is supported by substantial evidence and that decision should be affirmed.

There is no genuine issue of material fact that substantial evidence supports the ALJ’s finding and

the MSPB’s decision. Defendants, therefore, are entitled to judgment as a matter of law as to

Crawford’s claim that the DHS’s charges and finding that she is unsuitable for the position of

immigration inspector is arbitrary and capricious and unsupported by substantial evidence. 

2. Plaintiff’s Whistleblower Protection Act Claim

Defendants contend that Crawford offers no evidence to substantiate her claim that the

decision that she was unsuitable for the immigration inspector’s position was in retaliation for her

filing a lawsuit against the federal government in January 2001. They maintain that Crawford

cannot demonstrate that her 2001 lawsuit was a contributing factor in the decision that she was

unsuitable for the position. 

The Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302, prohibits a governmental

agency from taking an adverse personnel action against an employee or applicant for employment

because of disclosure of information which the employee believes evidences a violation of law or

gross mismanagement of funds. 5 U.S.C. § 2302(b)(8). Pursuant to 5 U.S.C. § 1221(e), the

employee or applicant must demonstrate that the disclosure was a contributing factor in the

personnel action “through circumstantial evidence, such as evidence that – (A) the official taking

the personnel action knew of the disclosure; and (B) the personnel action occurred within a period

 

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of time such that a reasonable person could conclude that the disclosure was a contributing factor

in the personnel action.” Id.

Crawford maintains that she has “raised sufficient allegations to show by a preponderance

that the disclosures contributed to the treatment of the Plaintiff and to the suitability

determination[.]” Plaintiff’s Response at 17. She contends that the DHS’s hiring director knew of

her lawsuit against the Department of Justice, as it was on her employment application and the

background investigator’s report. She maintains that the proximity between the time she filed the

lawsuit and the time she applied for the immigration inspector’s position supports her claim of

retaliation in violation of the WPA.

Crawford’s allegations, however, are not supported by proof that raises a genuine issue of

material fact to meet the requirements of § 1221(e). Specifically, Crawford fails to present

competent summary judgment evidence that the disclosure of the 2001 lawsuit against the

government was a contributing factor in the finding that she was unsuitable for the position of

immigration inspector. She has not identified any person who made the determination that she was

unsuitable, knew of the prior lawsuit, or retaliated against her for bringing the lawsuit.

In her application for immigration inspector, Crawford stated that in November 2001, she

was the Plaintiff in a civil action and that she was making a “claim for damages.” Defendants’ App.

at 18. She listed the “names of parties involved” as “multiple.” Id. No other information regarding

the lawsuit was provided. The investigator’s report merely states, “In 11/01 subject was trying to

sue some people in the New Orleans, LA courts. Subject refused to discuss the details of the case.

Crawford stated that the records are sealed. No other information was stated on the matter.”

Plaintiff’s App. at 132. Such evidence is woefully insufficient to support her claim that the lawsuit

 

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was disclosed to the hiring director, and that the disclosure contributed to the director’s

determination that she was unsuitable for the immigration inspector’s position. 

Based on the state of the record, there is no evidence, circumstantial or otherwise, that the

hiring director, or other official taking the personnel action, knew that Crawford allegedly made a

disclosure evidencing a violation of the law or mismanagement of funds. Accordingly, any alleged

disclosure by Crawford could not have possibly contributed to the decision that she was unsuitable

for the immigration inspector’s position. Crawford has thus failed to raise a genuine issue of

material fact as to her whistleblower claim. As Crawford has not met her burden of establishing this

claim, Defendants are entitled to judgment as a matter of law.

3. Plaintiff’s Race Discrimination Claim

Defendants assert that Crawford has not carried her burden of demonstrating a prima facie

case of unlawful discrimination. Specifically, they assert that there is no evidence or allegation that

the person selected for the immigration inspector’s position was outside Crawford’s protected class;

and no evidence that Defendants’ employment practices resulted in a disparate impact on AfricanAmericans. Defendants maintain that they had legitimate, nondiscriminatory reasons for not hiring

Crawford. Crawford maintains that there is evidence of under-representation of blacks in the

immigration inspector’s position. 

a. Disparate Treatment

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), prohibits

employers from discriminating “against any individual with respect to [her] compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a). A plaintiff can prove a claim of intentional discrimination

 

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Neither party argues that this is a “mixed motive,” as opposed to a “pretext case.” Accordingly, the

court need not consider whether the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90,

(2003), or the Fifth Circuit’s decision in Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir.2004), will

affect this case. 

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by either direct or circumstantial evidence. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222

(5th Cir. 2000); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied, 525

U.S. 1000 (1998). “Direct evidence” is “evidence which if believed, proves the fact [in question]

without inference or presumption.” Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.

2003) (citations omitted). If there is no direct evidence, then a plaintiff must rely on the burdenshifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),

to create a presumption of intentional discrimination.4 See also Byers v. Dallas Morning News, Inc.,

209 F.3d 419, 425 (5th Cir. 2000).

 To create such a presumption, Crawford must establish a prima facie case of discrimination.

McDonnell Douglas Corp., 411 U.S. at 802. To establish a prima facie case, she must prove that

(1) she is a member of a protected class; (2) she was qualified for the position; (3) she was not hired;

and (4) the position was given to someone outside the protected class; or in the case of disparate

treatment, show that others similarly situated were treated more favorably. Frank v. Xerox Corp.,

347 F.3d 130, 137 (5th Cir. 2005); Okeye v. The Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d

507, 512-513 (5th Cir. 2001). If Crawford meets her burden of establishing a prima facie case, then

the burden shifts to Defendants to “articulate some legitimate, nondiscriminatory reason for the

employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. If Defendants meet their burden,

Crawford must prove by a preponderance of the evidence that Defendants’ stated reasons are merely

a pretext for discrimination. Id. at 804; Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981).

 

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Regarding her race discrimination claim, Crawford offers no competent summary judgment

evidence that someone outside her protected class was hired instead of her for the position of

immigration inspector; or that she was treated less favorably than other applicants. Crawford

admitted in her deposition that she does not know whom was hired for the position. Defendants’

App. at 51. She maintains, however, that there is direct evidence of discrimination “such as an

investigator’s surprise at the race of [her] boyfriends, and the DHS’s belief that the race of the Board

judge affected the outcome.” Plaintiff’s Response at 25. The court does not know the import of this

statement by Crawford; however, even if the investigator was surprised that Crawford’s boyfriend

was not Black, this is not direct evidence of racial discrimination because, even if believed, it does

not prove intentional discrimination without inference or presumption. Moreover, this court cannot

infer, without more, that “surprise” would transform conduct into race discrimination.

Viewing all inferences drawn from the factual record in the light most favorable to Crawford,

the court determines that she has not come forward with competent summary judgment evidence of

the existence of a genuine issue of material fact as to this claim. She merely offers conclusory

allegations, unsubstantiated assertions, and unsupported speculation. Crawford cannot establish that

someone outside of her protected class was hired for the position of immigration inspector, or that

other similarly situated applicants were more favorably treated. Thus she cannot establish a prima

facie case of race discrimination.

Even if the court were to determine that Crawford establishes a prima facie case of

discrimination based on race, Defendants have articulated legitimate, nondiscriminatory reasons for

the finding that Crawford was unsuitable for the position. Specifically, Crawford engaged in

misconduct in employment and criminal conduct. Explosive tirades, the use of foul language, and

 

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a prior conviction for being drunk in public can be viewed as unacceptable conduct sufficient to

deny employment. The hiring director believed that such inappropriate behavior demonstrated that

Crawford was not mature, reliable, or capable of handling stressful situations. Crawford offers no

competent summary judgment evidence that Defendants’ stated reasons are merely a pretext for

discrimination. The court therefore determines that there is no genuine issue of material fact as to

Crawford’s race disparate treatment claim, and Defendants are entitled to judgment as a matter of

law as to these claims.

b. Disparate Impact

A disparate impact claim arises when an employer's otherwise neutral policy has a

“significantly disproportionate impact” on a protected class. § 2000e-2(k)(1)(A)(i); Albemarle Paper

Co. v. Moody, 422 U.S. 405, 425 (1975). Disparate impact claims do not require proof of intent to

discriminate. Munoz v. Orr, 200 F.3d 291, 299 (5th Cir.), cert. denied,531 U.S. 812 (2000). Instead,

they focus on facially neutral employment practices that create such statistical disparities

disadvantaging members of a protected group that they are “functionally equivalent to intentional

discrimination.” Id. (quoting Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987 (1988)). The

evidence must focus on the degree of statistical disparity between protected and non-protected

workers, and the burden is on the plaintiff to conduct a systematic analysis of those employment

practices and present evidence in order to establish his or her case. Black Fire Fighters Ass'n v. City

of Dallas, 905 F.2d 63, 66 (5th Cir.1990). 

To establish a prima facie case of discrimination based on disparate impact, a plaintiff must

“(1) identify the challenged employment practice or policy, and pinpoint the defendant's use of it;

(2) demonstrate a disparate impact on a group that falls within the protective ambit of Title VII; and

 

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(3) demonstrate a causal relationship between the identified practice and the disparate impact.”

Gonzalez v. City of New Braunfels, Texas, 176 F.3d 834, 839 n.26 (5th Cir. 1999) (emphasis in

original); see also 42 U.S.C. § 2000e-2(k)(1)(A)(i)(2003). If that showing is made, the employer

must then demonstrate that “any given requirement [has] a manifest relationship to the employment

in question,” in order to avoid a finding of discrimination. Griggs v. Duke Power Co., 401 U.S. 424,

432 (1971). Even in such a case, however, the plaintiff may prevail, if she shows that the employer

was using the practice as a mere pretext for discrimination. Connecticut v. Teal, 457 U.S. 440, 446-

47 (1982). A showing that another employment practice would serve the employer's legitimate

interests without a similar undesirable racial effect is evidence of pretext. Albemarle, 422 U.S. at

425.

A plaintiff can establish a prima facie case of disparate impact by showing that the method

for selecting applicants for hire results in a racial pattern significantly different from that of the pool

of applicants. See Hazlewood School Dist. v. United States, 433 U.S. 299, 308 (1977). Disparate

impact claims necessarily rely heavily on statistical evidence. Munoz, 200 F.3d at 300. Statistical

discrepancies must be significant to establish a prima facie case. Frazier v. Garrison Indep. Sch.

Dist., 980 F.2d 1514, 1524 (5th Cir. 1993). “A plaintiff may use statistical as well as non-statistical

evidence in establishing a prima facie case of disparate impact.” Page v. U.S. Industries, Inc., 726

F.2d 1038, 1053 (5th Cir. 1984).

 Crawford contends that Defendants’ methods of conducting background investigations is the

employment practice or policy that resulted in disparate impact. She maintains that the investigators

have “unbridled discretion” in their manner of collecting information and the sources from which

the information is obtained. Plaintiff’s Response at 24. Crawford contends that investigators are

 

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not properly trained to discern between valid and marginal evidence, and therefore, “these

[employment] practices will produce any workforce the fabricator desires, including one based on

subconscious stereotypes and prejudices.” Id. 

Defendants contend that Crawford fails to establish a prima facie case of disparate impact,

as she offers no specific evidence that their methods of conduction background investigations has

a disparate impact on a protected group. Defendants also maintain that their practice of conducting

background investigations for potential hires is a business necessity, and not discriminatory. 

Crawford asserts that there are “disparities between the general population, and the persons

hired into the position.” She offers as evidence documents titled, “Occupation 1816 - Immigration

Inspection Employees as of December 200[1], 2002, and 2003 Race/National Origin and Gender

Counts Source: Central Personnel Data File.” Plaintiff’s App. at 218; and “Statistics about

Minorities in the Profession from the Census.” Id. at 219, 220. Pursuant to these documents, Blacks

or African-American made up 12.3% of the population according to the 2000 Census. Id. at 220.

According to the documents, in 2001, there were 2,117 immigration inspection employees, 223 of

which were “Black, not of Hispanic origin.” Id. at 218. Thus, more than 10% of the immigration

inspection employees were Black. In 2001, there were 460 female immigration inspection

employees, which is more than 21% of the inspection employees. Further, slightly more than 7%

of the immigration inspection employees were Black as of 2002 and 2003. Slightly more than 23%

of the employees were female in 2002 and 2003. 

The court concludes, however, that Crawford fails to provide the proper statistical analysis

for determining a disparate impact claim. Her statistics cite to the entire population rather than the

applicant or labor pool and the applicants hired. “When special qualifications are required to fill

 

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particular jobs, comparisons to the general population (rather than to the smaller group of

individuals who possess the necessary qualifications) may have little probative value.” Hazlewood,

433 U.S. at 308, n.13. Thus, the relevant statistical pool for demonstrating discriminatory exclusion

must be the number of Blacks qualified for the immigration inspector’s position. See id.; see also

Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 651-52 (1987). The statistics

provided by Crawford do not show a disparity between the applicant or labor pool and the applicants

hired. The court, therefore, cannot rely on these statistics as evidence of a disparity to establish

racial discrimination. Moreover, even if the court were to rely on these statistics, the court finds that

there are no significantly disproportionate disparities between the general population, and the

persons hired into the immigration inspector’s position based on race.

Crawford also submitted evidence that shows that in 2002, of the 233 applicants in Texas

hired for the immigration inspector’s position, 13 were African-American, slightly more than 5%.

Her documents of the applicant pool, however, do not include a designation of race, and therefore

are not helpful to the court in its determination of statistical disparity with respect to race between

the number of applicants and actual hires. Moreover, even if the court were to accept these statistics

as evidence of a significantly disproportionate impact on African-Americans, Crawford fails to

demonstrate how the methods of conducting background investigations have a disparate impact on

African-Americans; or demonstrate a causal relationship between the methods of background

investigations and the disparate impact. Further, Defendants have shown that background

investigations for new hires are a business necessity. An immigration inspector “performs the full

range of inspection, examination, processing and law enforcement duties regarding persons seeking

to enter the United States from foreign locations.” Plaintiff’s Supplemental App. at 31. She

 

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“[m]akes arrests and takes custody of arrested persons and detains (through the use of appropriate

physical constraints) or arranges for detention. In some cases, transports aliens to jails or detention

facilities.” Id. Among other things, an immigration inspector must have the “[a]bility to observe

and detect unusual conditions, and make accurate judgments and prompt decisions to enforce U.S.

immigration and customs laws, and to examine evidence and testimony to establish complex

relationships between individuals and organizations involved in attempts to violate laws.” Id. at 32.

Stanley Johnson, a director for DHS, describes the immigration inspector’s position as

follows:

Immigration Inspectors are the first United States officials that

approximately 300 million persons who enter the United States

annually will see upon their arrival. The key responsibility of an

Immigration Inspector is to prevent ineligible persons from entering

the United States. Immigration Inspectors conduct inspections of all

classes of applicants for admission to the United States. On the basis

of their evaluation of information developed through interrogation

and observation of applicants and examination of documents for

validity and adequacy, they must determine eligibility for admission

and take action to admit or exclude as appropriate. Immigration

Inspectors make secondary (more detailed) inspections of

applications referred from the initial inspector requiring more

intensive questioning and study of citizenship, travel/entry

documents, and other information. . . . Inspectors are also required to

carry a firearm at all times as well as other instruments by which they

may administer non-deadly force. . . . [Applicants must] demonstrate

that they are mature, reliable, and capable of handling stressful

situations. In particular, there must be sufficient evidence for me to

conclude that an applicant can be trusted to appreciate the seriousness

of their responsibility as an Immigration Inspector. Furthermore,

because Immigration Inspectors must exercise good judgment and

make instantaneous decisions in high stress situations regarding

apprehensions and use of force, [ ] applicant[s] must be able to

demonstrate through their previous behavior that they are able to

think clearly in stressful situations and are emotionally stable.

 

 

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Defendants’ App. at 31-32. Based on these listed job responsibilities, it is clear to the court that a

background investigation is necessary for the determination of an applicant’s suitability for such a

position; and the court is convinced that there is not a more desirable employment practice that

would serve DHS’s legitimate interest with respect to the hiring of persons as immigration

inspectors. Defendants have rebutted any prima facie showing of disparate impact by showing that

the challenged employment practice is a business necessity. See Griggs v. Duke Power Co., 401

U.S. 424, 43 (1973). Defendants have also demonstrated that the use of background investigations

is not a pretext for discrimination. Defendants are therefore entitled to judgment as a matter of law

on Crawford’s claim of disparate impact based on race. 

4. Plaintiff’s Sex Discrimination Claim

Defendants assert that Crawford has not carried her burden of demonstrating a prima facie

case of unlawful sex discrimination, as she presents no evidence that a male applicant was hired

instead of her for the immigration inspector’s position. They contend that there is no evidence that

their employment practices resulted in a disparate impact on females. Defendants also maintain that

they had legitimate, nondiscriminatory reasons for not hiring Crawford. Crawford maintains that

there is evidence of under-representation of women in the immigration inspector’s position.

 

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a. Disparate Treatment

To establish a prima facie case of sex discrimination, Crawford must prove: (1) that she was

a member of a protected group; (2) that she applied for a position for which she was qualified; (3)

that she was rejected; and (4) that after she was rejected, the employer hired or continued to seek

a member of the opposite sex for the job. See Jones v. Flagship Intern., 793 F.2d 714, 724 (5th Cir.

1986) (citing McDonnell Douglas Corp., 411 U.S. at 802.). If Crawford meets her burden of

establishing a prima facie case, then the burden shifts to Defendants to “articulate some legitimate,

nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. If

Defendants meet their burden, then Crawford must prove by a preponderance of the evidence that

Defendants’ stated reasons are merely a pretext for discrimination. Id. at 804; Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Defendants contend that Crawford’s sex discrimination cause of action based on the theory

of disparate treatment fails for a lack of evidence. The court agrees. Similar to her race

discrimination claim, Crawford offers no competent summary judgment evidence that she was

rejected because of her gender, and that Defendants hired a member of the opposite sex for the

position of immigration inspector; or that she was treated less favorably than male applicants.

Crawford admits that she does not know whom was hired for the position. She merely offers

conclusory allegations, unsubstantiated assertions, and unsupported speculation that a male was

hired instead of her. Thus she cannot establish a prima facie case of sex discrimination, and she has

not come forward with competent summary judgment evidence of the existence of a genuine issue

of material fact to defeat summary judgment.

 

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5

Crawford’s unsuitability equally applies to her lack of qualifications for the position. Although

Defendants did not contend per se that Crawford was unqualified for the position, the court determines that

they have effectively placed her lack of qualifications in issue by asserting that she was “unsuitable” for the

position of immigration inspector. 

Memorandum Opinion and Order - Page 22

Even if the court were to determine that Crawford established a prima facie case of sex

discrimination, Defendants have articulated legitimate, nondiscriminatory reasons for the finding

that Crawford was unsuitable for the position – misconduct in employment and criminal conduct.5

Crawford offers no competent summary judgment evidence that Defendants’ stated reasons are

merely a pretext for discrimination. The court therefore determines that there is no genuine issue

of material fact as to Crawford’s gender disparate treatment claim, and Defendants are entitled to

judgment as a matter of law as to this claim.

b. Disparate Impact

Crawford provides a document titled “Profile of General Demographic Characteristic for

Texas: 2000.” Plaintiff’s Supplemental App. at 22. According to this document, the State of Texas

had a population of 20,851,820 in 2000. Id. Females made up 10,498,910, or 50.4% of the Texas

population. Id. According to Crawford’s documentation, of the 233 immigration inspectors hired

in Texas in 2002, 66 or 28% were female. Id. at 13-17. Crawford provides no evidence of the

gender makeup of the applicant pool for this same time period. As Crawford fails to provide the

makeup of the applicant pool, the court cannot make a determination regarding a statistical disparity

between selected applicants and the applicant pool. See Hazlewood, 433 U.S. at 308; Johnson, 480

U.S. at 651-52. Accordingly, this claim fails as a matter of law.

 Crawford has identified Defendants’ methods of conducting background investigations as

the challenged employment practice. Thus even if the court were to accept these statistics as

evidence of a significantly disproportionate impact on females, Crawford fails to: (1) demonstrate

 

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how the methods of conducting background investigations have a disparate impact on females; (2)

demonstrate a causal relationship between the methods of background investigation and the

disparate impact; or (3) show that the Defendants’ methods of conducting background investigations

is not a business necessity but merely a pretext for discrimination. For this reason, and that

previously stated, the court determines that Crawford fails to establish a genuine issue of material

fact as to her gender disparate impact claim, and Defendants are entitled to judgment as a matter of

law on this claim. 

5. Plaintiff’s Disability Discrimination Claim

Crawford contends that the decision that she was not suitable for the immigration inspector’s

position was based on disability. She also contends that “though the Plaintiff is not disabled, she

is clearly regarded as disabled, and substantially limited in major life activities such as learning and

working.” Plaintiff’s Response at 19. She also contends that “Plaintiff is regarded as

psychologically impaired and unable to work and learn . . . , and she was treated as such in the

report, affidavit and decision.” Id. at 20. She thus asserts that the decision that she was unsuitable

for the position was discriminatory.

There is a question whether this court has jurisdiction over Crawford’s Americans with

Disabilities Act (“ADA”) claim. Federal courts are courts of limited jurisdiction and must have

statutory or constitutional power to adjudicate a claim. See Home Builders Ass’n, Inc. v. City of

Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by statute, they lack

the power to adjudicate claims and must dismiss an action if it appears that subject matter

jurisdiction is lacking. See Stockman v. Federal Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998)

(citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). A federal court

 

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has an independent duty, at any level of the proceedings, to determine whether it properly has

subject matter jurisdiction over a case. See Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583

(1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative even at

the highest level.”); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005) (“federal court

may raise subject matter jurisdiction sua sponte”).

At first glance, it might appear that the court does not have subject matter jurisdiction. The

ADA is an antidiscrimination statute designed to remove barriers which prevent qualified

individuals with disabilities from enjoying employment opportunities available to persons without

disabilities. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 161 (5th Cir.), cert. denied, 519

U.S. 1029 (1996). The ADA provides: “No covered entity shall discriminate against a qualified

individual with a disability because of the disability of such individual 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). The

ADA defines “covered entity” as “an employer, employment agency, labor organization, or joint

labor-management committee.” 42 U.S.C. § 12111(2). The term “employer,” however, does not

include “the United States, a corporation wholly owned by the government of the United States, or

an Indian tribe.” 42 U.S.C. § 12111(5)(B)(i).

 Defendants are the United States and one of its agencies, the DHS, who are specifically

excluded as employers. Because there are no threshold facts to decide, it would appear as a matter

of law that this lawsuit cannot be maintained against Defendants. The inquiry, however, does not

end here. In a recent case, the Supreme Court overruled the Fifth Circuit, which had held that the

numerosity requirement for an employer to be covered under Title VII was jurisdictional. Arbaugh

 

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v. Y & H Corp., 546 U.S. _____, 163 L. Ed.2d 1097 (2006). In providing guidance to determine

whether a court has subject matter jurisdiction, the Supreme Court stated: 

If the Legislature clearly states that a threshold limitation on a

statute’s scope shall count as jurisdictional, then courts and litigants

will be duly instructed and will not be left to wrestle with the issue.

But when Congress does not rank a statutory limitation on coverage

as jurisdictional, courts should treat the restriction as nonjurisdictional in character.

Id., at 1110 (footnotes and internal quotes and citations omitted). In light of this directive from the

high court, and upon review of the statute, the court sees no indication that Congress ranked or

intended to rank as jurisdictional the exclusion of the United States as a covered entity under the

ADA. Accordingly, the court determines that it has the power to adjudicated this disability claim.

 a. Disparate Treatment

A person “may establish a claim of discrimination under the ADA by presenting direct

evidence or by using the indirect method of proof set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973).” Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir.1999). To

establish a prima facie case of intentional disability discrimination under McDonnell Douglas, a

plaintiff must show that she “(1) suffers from a disability; (2) was qualified for the job; (3) was

subject to an adverse employment action[;] and (4) was replaced by a non-disabled person or treated

less favorably than non-disabled employees.” Seaman, 179 F.3d at 300. The employer then must

articulate some legitimate, nondiscriminatory reason for its action. Id. If the employer meets this

burden, then the employee must prove that the employer’s stated reasons are merely a pretext for

discrimination. Id. 

A person is disabled under the ADA if he (1) has a physical or mental impairment that

substantially limits one or more major life activities, (2) has a record of such impairment, or (3) is

 

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regarded as having such an impairment. 42 U.S.C. § 12102(2); Aldrup, 274 F.3d at 286. Major life

activities can include “functions such as caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). “Substantially

limits” means that a person is: 

(1) unable to perform a major life activity that the average person in the

general population can perform; or (2) significantly restricted as to the

condition, manner, or duration under which an individual can perform a

particular major life activity, as compared to the condition, manner, or

duration under which the average person in the general population can

perform the same major life activity.

 29 C.F.R.§ 1630.2(j)(1); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 n.5 (5th Cir. 1996).

Defendants assert that Crawford has not carried her burden of demonstrating a prima facie

case of unlawful disability discrimination, as she presents no evidence that she was discriminated

against because of a disability, and no evidence that Defendants failed to reasonably accommodate

her because of her disability. Defendants maintain that there is no evidence that their employment

practices resulted in a disparate impact on persons with disabilities. They further contend that they

had legitimate, nondiscriminatory reasons for not hiring Crawford.

Crawford contends that the determination that she was unsuitable for the immigration

inspector’s position was based on a disability, as the investigation documents referenced her

psychological condition and ill-health. Plaintiff’s Response at 19. She maintains, therefore, that

although she is not disabled, she is clearly regarded as disabled, and substantially limited in major

life activities such as learning and working. Id.

A person is “regarded as” disabled under the ADA if she:

(1) has an impairment which is not substantially limiting but which

the employer perceives as . . . substantially limiting . . . ; (2) has an

impairment which is substantially limiting only because of the

 

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attitudes of others towards such an impairment; or (3) has no

impairment at all but is regarded by the employer as having a

substantially limiting impairment.

Rodriguez v. Conagra Grocery Prods. Co., 436 F.3d 468, 475 (5th Cir. 2006) (footnote and citation

omitted). 

Crawford offers no competent summary judgment evidence to meet the standard articulated

above. Specifically, she offers no evidence that Defendants regarded her as having a substantially

limiting impairment, that this perceived impairment contributed to the decision that she was not

suitable for employment, and that a non-disabled person was hired instead of her. Although there

is evidence that the hiring director was concerned regarding Crawford’s emotional and mental

stability, this concern was directed to Crawford’s ability to handle stressful situations as it relates

to the position of immigration inspector. Such concern does not rise to the level of being regarded

as having a substantially limiting impairment that Crawford is unable to perform a major life activity

that the average person in the general population can perform; or is significantly restricted as to the

condition, manner, or duration under which she can perform a particular major life activity. “[A]n

employer does not necessarily regard an employee as having a substantially limiting impairment

simply because it believes she is incapable of performing a particular job[.]” Ellison v. Software

Spectrum, 85 F.3d 187, 192 (5th Cir. 1996). Rather, the employer must regard the individual as

significantly restricted in his ability to perform a class or broad range of jobs. Hamilton v.

Southwestern Bell Telephone Co., 136 F.3d 1047, 1052 (5th Cir. 1998). Crawford has thus failed

to produced sufficient summary judgment evidence to create a genuine issue of material fact that

Defendants regarded her as disabled. Also, the record is devoid of any competent summary

 

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judgment evidence that Defendants have regarded Crawford as having a substantially limiting

impairment with respect to her ability to learn. 

Even if the court were to determine that Crawford establishes a prima facie case of

discrimination based on a disability, Defendants have articulated legitimate, nondiscriminatory

reasons for finding that Crawford was unsuitable for the position. The finding of misconduct or

negligence in employment was based on Crawford being terminated for inappropriate behavior in

the workplace. Specifically, her propensity to explode into tirades, use foul language, and make

repeated statements that the government was out to get her. The hiring director determined that such

behavior was not compatible with the performance of the duties of an immigration inspector.

Further, Crawford’s prior conviction for being drunk in public establishes that she engaged in

criminal or dishonest conduct. Crawford fails to offer any summary judgment evidence that such

reasons are merely a pretext to disability discrimination. 

Considering the record as a whole and drawing all reasonable inferences in Crawford’s favor,

the court determines that Crawford has failed to raise a genuine issue of material fact to establish

a prima facie claim of disability discrimination. Accordingly, Defendants are entitled to judgment

as a matter of law on Crawford’s disparate treatment claim based on disability. 

b. Disparate Impact

Crawford asserts that Defendants’ practice of “using opinions of untrained persons and

strangers” regarding her medical or emotional condition had a disparate impact on her. Plaintiff’s

Response at 22. She further states that there is substantial statistical disparity, as no disabled

persons were hired as an immigration inspector in 2002. Defendants contend that Crawford does

not demonstrate how this practice had an impact on persons with disabilities in general.

 

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Crawford produces no statistical evidence of disabled persons in the applicant pool. She also

fails to demonstrate a causal connection between the Defendants’ methods of conducting

background investigations and alleged use of “using opinions of untrained persons and strangers”

regarding medical or emotional conditions, and the alleged disparate impact. The court finds that

Crawford produces no evidence that this practice had a disparate impact on disabled persons in

general. Thus Crawford is actually making a disparate treatment claim regarding her alleged

disability. The court therefore determines that Crawford has not produced competent summary

judgment evidence sufficient to establish a prima facie case of disparate impact as to disability and

thus cannot defeat summary judgment on this issue. Moreover, even if the court were to conclude

that Crawford established a prima facie case of disability discrimination based on disparate impact,

Crawford fails to demonstrate, or create a genuine issue of material fact, that the Defendants’

methods of conducting background investigations is not a business necessity but merely a pretext

for discrimination. Accordingly, Defendants are entitled to judgment as a matter of law as to

Crawford’s disability disparate impact claim.

c. Reasonable Accommodation

Defendants maintain that they are entitled to summary judgment as to Crawford’s claim that

Defendants refused to reasonably accommodate her disability, as she: (1) denied in her deposition

that she was disabled, so there was no disability to reasonably accommodate; (2) fails to identify

what accommodation she believes DHS should have made, and therefore there is no indication

whether the proposed accommodation would have been reasonable; and (3) provides no evidence

demonstrating that she requested an accommodation of a disability from DHS. Defendants further

assert that, as to Crawford’s contention that she is regarded as having a disability, employers are not

 

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required to reasonably accommodate individuals regarded as disabled, only those who actually are

disabled.

Crawford counters that she could not request an accommodation, as she “needed notice of

why she was thought to have failed the medical exam.” Plaintiff’s Response at 23. She further

contends that “[a]ny reasonable person would retain an accommodation claim in light of the

relentless INS claims of mental deficiency, and in light of the impermissible changing of charges.”

Id. Finally she asserts, “The Plaintiff may make the claim of accommodations discrimination where

the employer mysteriously, directly and indirectly alleged but did not explain an illness that prevents

the hiring of the Plaintiff anywhere.” Id. Crawford offers no authority to support her contentions.

The ADA provides that employers are liable for failing to make reasonable accommodations

to qualified individuals with known physical or mental limitations, unless the employer demonstrates

that the accommodation imposes undue hardship on the operation of its business. 42 U.S. C. §

12112(b)(5)(A). In order to bring a successful ADA claim based on failure to provide reasonable

accommodation, “an employee must prove that the employer knew of the employee’s substantial

physical [or mental] limitation.” Gammage v. West Jasper Sch. Bd. of Educ., 179 F.3d 952, 955 (5th

Cir. 1999). The ADA does not require an employer to assume that an employee with a disability

suffers from a limitation. “[I]t is incumbent upon the ADA plaintiff to assert not only a disability,

but also any limitation resulting therefrom.” Id. She is also required to demonstrate that she

requested an accommodation and that an accommodation of her disability is reasonable. Taylor v.

Principal Fin. Group, Inc., 93 F.3d at 165; Riel v. Electronic Data Sys. Corp., 99 F.3d 678, 683 (5th

Cir. 1996). Further, “an employer need not provide reasonable accommodation to an employee who

does not suffer from a substantially limiting impairment merely because the employer thinks the

 

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employee has such an impairment.” Newberry v. East Tex. State Univ., 161 F.3d 276, 280 (5th Cir.

1998). In other words, “the duty to make a reasonable accommodation arises only when the

individual is disabled; no such duty arises when the individual merely is ‘regarded as’ being disabled

as defined under the ADA.” Cannizzaro v. Neiman Marcus, Inc., 979 F.Supp. 465, 475

(N.D.Tex.1997).

Crawford offers no summary judgment evidence that Defendants knew of any substantial

physical or mental limitations, or that she requested an accommodation. Further, as Crawford

asserts that she is not disabled, but only regarded by Dependants as disabled, Defendants are not

required to accommodate her. Crawford thus fails to raise a genuine issue of material fact as to her

claim that Defendants discriminated against her by refusing to reasonably accommodate her

disability, and Defendants are entitled to judgment as a matter of law on this claim. 

B. Plaintiff’s Motion for Partial Summary Judgment

In her motion for partial summary judgment, Crawford reasserts her claims that: (1)

substantial evidence does not support the DHS’s determination that she was unsuitable for the

immigration inspector’s position; (2) Defendants’ action of not selecting her for the position was a

result of her filing suit against the federal government in 2001; and (3) she was not hired for the

position because of her disability, race, and gender. These are the same claims that the court already

addressed in disposing of Defendants’ motion for summary judgment. As the court has determined

that Defendants are entitled to judgment as a matter of law on all of these claims, holding that

Crawford has presented evidence to show that there is no genuine issues of material fact as to her

claims would be wholly inconsistent with the court’s prior determination. Accordingly, Crawford’s

motion for partial summary judgment will be denied.

 

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C. Plaintiff’s Motion to Seal

Crawford requests the court to seal her Appendix documents 14 and 33, as they contain

confidential, personnel, and private medical information. Alternatively, Crawford seeks to have the

entire record sealed. As the court has previously ordered Crawford’s complaint, appendices, and

various other documents and pleadings in this case sealed; and Defendants do not object or respond

to Crawford’s motion to seal, the court determines that the motion to seal should be granted as to

Appendix documents 14 and 33. 

IV. Conclusion

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

exists regarding any claim asserted by Plaintiff. Accordingly, the court grants Federal Defendants’

Motion for Summary Judgment; affirms the decision of the MSPB; denies Plaintiff’s Motion for

Partial Summary Judgment; grants Plaintiff’s Motion for Leave to Seal Appendix to Plaintiff’s Brief

in Opposition to Motion for Summary Judgment: Appendix Documents 14 and 33; and denies as

moot Plaintiff’s Unopposed Motion to Continue Trial. Judgment will issue by separate document

as required by Fed. R. Civ. P. 58.

It is so ordered this 2nd day of August, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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