1

The Court grants Cooper’s motion for leave to supplement [67].

ORDER – PAGE 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAY SANDON COOPER, §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1778-N

§

DALLAS POLICE ASSOCIATION, §

et al., §

§

Defendants. §

ORDER

Before the Court is Plaintiff Jay Sandon Cooper’s (“Cooper”) Motion for Partial

Summary Judgment [52] and Defendants Glenn White (“White”) and the Dallas Police

Association’s (“DPA”) (collectively, “Defendants”) Motion for Summary Judgment [39].

Because the Court finds that Cooper has failed to raise a genuine issue of material fact with

respect to each of his claims, the Court grants Defendants’ motion to dismiss.1

I. COOPER’S RELATIONSHIP WITH THE DPA

Cooper is a police officer with the Dallas Police Department and a member of the

DPA, a labor organization that represents the interests of Dallas police officers. Glenn White

has been the president of the DPA since 1994.

In 2004, Cooper aided two fellow police officers in presenting their complaints of

racial discrimination against the DPA. Cooper first submitted an affidavit to the Texas

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ORDER – PAGE 2

Commission on Human Rights in support Harold Cornish’s claim of racial discrimination

against the DPA. Later that same year, Cooper submitted a letter to President White

complaining of discriminatory acts carried out against Teresa Ward Cooper and he assisted

her in presenting her claim of gender and disability discrimination to the EEOC. 

Cooper alleges that following his support of Harold Cornish and Teresa Ward

Cooper’s discrimination complaints, the DPA retaliated against him by engaging in a “smear

campaign” designed to thwart Cooper’s efforts for advancement in his career. Specifically,

Cooper claims that Chief of Police David M. Kunkle’s decision not to promote Cooper to the

positions of Assistant Chief or Deputy Chief in November and December of 2004 directly

resulted from the DPA’s retaliation against Cooper. Cooper asserts a claim of unlawful

retaliation against White and the DPA based on the fact that Chief Kunkle did not appoint

him to either position. Furthermore, Cooper also asserts a claim of racial discrimination

against White and the DPA, alleging that the DPA engaged in a “pattern and practice of

discrimination against him based on his race: Caucasian (White).” Compl. at 2, ¶ 5.

Defendants now move for summary judgment on all of Cooper’s claims.

II. SUMMARY JUDGMENT STANDARD & COOPER’S BURDEN OF PROOF

Federal Rule of Civil Procedure 56(c) provides that the party moving for summary

judgment has the burden of showing that there is no genuine issue of fact and that it is

entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986); Harbor Ins. Co. v. Trammel Crow Co., 854 F.2d 94, 98 (5th Cir. 1988). In the

summary judgment context, the Court is to accept the nonmovant’s evidence and draw all

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ORDER – PAGE 3

justifiable inferences in his favor. Anderson, 477 U.S. at 255. In deciding a motion for

summary judgment, the Court must determine whether “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); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994) (en banc); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Additionally, the Court must follow the burden-shifting analysis presented in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which applies to Title VII race

discrimination and retaliation claims where, as here, the plaintiff provides only circumstantial

evidence to support his claims. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506–07

(1993); Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). Under this

analysis, Cooper must first establish a prima facie case, which gives rise to the presumption

that the defendant acted with discriminatory or retaliatory intent. See St. Mary’s Honor Ctr.,

509 U.S. at 506-07. DPA may then rebut this presumption by providing a legitimate

nondiscriminatory, nonretaliatory reason for the underlying action. Id. Once DPA produces

such a legitimate rationale, the presumption raised by the prima facie case disappears

completely, and the only relevant question is whether DPA intentionally discriminated or

retaliated against Cooper. Id. at 510–11. At this point, the burden again rests with Cooper

to produce sufficient evidence to create a genuine issue of fact that either: (1) DPA’s

proffered reason for its action is not true, but is instead a pretext for discrimination or

retaliation, or (2) DPA’s reason, though true, is only one of the reasons for its conduct and

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ORDER – PAGE 4

that another “motivating factor” was Cooper’s race or protected activity. See Rachid v. Jack

in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).

III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT 

ON ALL OF COOPER’S CLAIMS

A. Cooper’s Claim Against White Is Redundant

Cooper asserts his Title VII claim against both the DPA and White, whom Cooper has

sued in his official capacity as President of the DPA. The Fifth Circuit, however, has held

that Title VII does not permit a plaintiff to “maintain an action against both a corporation and

its agent in an official capacity.” Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th

Cir. 1999) (quoting Allen v. Tulane Univ., 1993 WL 459949 (E.D. La. Nov. 2, 1993).

Rather, “Congress’s purpose in extending the definition of employer to encompass an agent

. . . was simply to incorporate respondeat superior liability into Title VII. Thus, a Title VII

suit against an employee is actually a suit against the corporation.” Id. As a result, a plaintiff

may maintain an action against both an employer and its agent only when the agent is sued

in his personal capacity; otherwise, the employer “could be held liable twice for the same

act.” Id. This reasoning applies equally to a labor organization and its president. Cooper

does not assert a claim against White personally; he only asserts a claim against White in his

official capacity as President of the DBA. Accordingly, the Court dismisses Cooper’s claim

against White as redundant. 

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ORDER – PAGE 5

B. Cooper Failed to Exhaust Administrative Remedies 

with Respect to his Race Discrimination Claim

The DPA maintains that Cooper failed to exhaust his administrative remedies with

respect to his discrimination claim and, therefore, he may not pursue that claim in federal

court. The Court agrees.

As a precondition to filing suit in federal court, Title VII requires an employee

claiming discrimination or retaliation to exhaust his administrative remedies. Taylor v. Books

a Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002). “Exhaustion occurs when the

employee files a timely charge with the EEOC and receives a statutory notice of right to sue.”

Id. at 379. The scope of the Title VII lawsuit is limited to the scope of the EEOC

investigation that can reasonably be expected to grow out of the allegations contained in the

charge. Thomas v. Tex. Dep’t of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000). 

Cooper has not exhausted the administrative remedies available for his race

discrimination claim. Cooper’s EEOC charge alleges only that the DPA retaliated against

him for opposing alleged unlawful acts; the charge made no mention of race discrimination,

nor did it provide any factual allegations that would lead the EEOC to investigate a charge

of race discrimination. Cooper argues that the EEOC charge put the DPA on notice of the

promotions about which Cooper complains, and that the DPA knew that each position was

filled with a Hispanic or African-American individual. However, this does not satisfy

Cooper’s obligation to exhaust his administrative remedies by making a specific charge of

race discrimination with the EEOC. See Randel v. U.S. Dep’t of Navy, 157 F.3d 392, 395

(5th Cir.1998) (holding that plaintiff must independently exhaust his administrative remedies

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ORDER – PAGE 6

for his discrimination claim when the plaintiff's EEOC charge of reprisal made no mention

of race discrimination). The Court therefore grants Defendants’ motion for summary

judgment with respect to Cooper’s race discrimination claim because he has failed to exhaust

administrative remedies. 

C. Cooper Fails to Establish a Prima Facie Case of Retaliation

The DPA argues that Cooper has not established a prima facie case retaliation and,

therefore, the Court should grant summary judgment as to Cooper’s claim. The Court agrees.

Title VII prohibits a labor organization from retaliating against its members. 42

U.S.C. § 2000e-3 (“It shall be unlawful . . . for a labor organization to discriminate against

any member thereof . . ., because he has opposed any practice made an unlawful employment

practice by [Title VII], or because he has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing under [Title VII].”). Cooper may

establish a prima facie case of retaliation by showing that: (1) he engaged in protected

activity; (2) the DPA took a materially adverse action against him; and (3) a causal

connection exists between the protected activity and the adverse action. Byers v. Dallas

Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000); see also Peace v. Harvey, 2006 WL

3068677, at *1 (5th Cir. Oct 26, 2006) (noting that the Supreme Court’s decision in

Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006), relaxed the standard for

“adverse employment action,” but did not alter the elements of a prima facie case of

retaliation). Cooper, however, cannot sustain this initial burden because he cannot show that

a causal connection exists between his support of Harold Cornish and Teresa Ward Cooper’s

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ORDER – PAGE 7

discrimination complaints and the fact that he was not selected for the positions of Assistant

Chief and Deputy Chief. 

Cooper maintains that Chief Kunkle did not select him for the positions of Assistant

Chief and Deputy Chief because the DPA had intentionally damaged his reputation in

retaliation for his public support of Harold Cornish and Teresa Ward Cooper’s claims of

discrimination. To survive summary judgment on this claim, Cooper must offer evidence

that could allow a reasonable jury to conclude that a causal connection exists between

Cooper’s protected activity, any action by the DPA to damage his reputation, and Chief

Kunkle’s decision not to promote Cooper to either position. See Gonzalez v. J.E. Merit

Constructors, Inc., 263 F.3d 162, 2001 WL 803545, at *5 (5th Cir. 2001) (affirming district

court’s grant of summary judgment because plaintiff failed to produce evidence that “would

allow a reasonable jury to infer” that a causal connection existed between the plaintiff’s

protected activity and his termination). 

As evidence of the existence of a causal connection, Cooper points to the temporal

proximity between his public support of Harold Cornish and Teresa Ward Cooper’s

discrimination complaints, occurring as late as October 2004, and Chief Kunkle’s decision

not to promote Cooper. According to Cooper, this one-month proximity creates an inference

of causation that is sufficient to establish a prima facie case of retaliation. Generally, the

“close timing between an employee’s protected activity and an adverse action taken against

him may provide the ‘causal connection’ required to make out a prima facie case of

retaliation.” Swanson v. Gen. Serv. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). However,

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ORDER – PAGE 8

in light of Chief Kunkle’s deposition testimony, the Court concludes that Cooper may not

rest his case on mere temporal proximity. In his deposition, Chief Kunkle stated that he had

sole discretion and authority to appoint officers to the positions of Assistant Chief and

Deputy Chief, and that he made those promotions based on advice from his existing

command staff. Chief Kunkle specifically stated that he did not discuss the possibility of

Cooper’s promotion with any member of the DPA and that the DPA had no influence on

whether he promoted Cooper. Thus, in order to survive summary judgment, Cooper must

offer evidence that is sufficient to create a genuine issue of material fact as to whether the

alleged actions of the DPA did, in fact, influence Chief Kunkle’s decision.

Cooper asserts that Chief Kunkle’s testimony establishes that the DPA’s efforts to

damage Cooper’s reputation influenced Chief Kunkle’s decision. Specifically, Cooper

highlights Chief Kunkle’s statements that: (1) promotions to chief positions are generally

based on an officer’s reputation within the force; (2) Chief Kunkle’s knowledge of Cooper

is based on Cooper’s reputation; (3) Chief Kunkle does not know whether any member of

his command staff discussed Cooper with the DPA; and (4) historically, employee

associations, including the DPA, have informally “weighed in” on candidates for promotion.

However, the inference required to reach the conclusion that the DPA influenced Chief

Kunkle’s decision based on these statements is too attenuated to raise a genuine issue of

material fact, especially considering that Chief Kunkle expressly disavowed any such

influence and stated that he did not discuss Cooper with anyone outside his command staff.

Turner v. Baylor Richardson Medical Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (“[A] party

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ORDER – PAGE 9

cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or

only a scintilla of evidence.”) (internal quotations omitted); cf. Romero v. Union Pac. R.R.,

615 F.2d 1303, 1310–11 (10th Cir. 1980) (finding that testimonial evidence that defendantunion and employer were “in the matter together” and had held numerous conferences

regarding the plaintiff’s situation raised a genuine issue of fact as to whether defendant-union

influenced employer’s decision to delay plaintiff’s reinstatement).

Cooper also argues that the DPA’s influence on Chief Kunkle is evident from the fact

that Chief Kunkle received an allegedly racist Christmas card, which the DPA attributed to

Cooper, prior to making his decision not to promote Cooper to Deputy Chief in December

2004. Cooper points out that when he confronted Chief Kunkle about his decision not to

promote Cooper, Chief Kunkle showed Cooper the Christmas card and stated that he found

it immature and unprofessional. However, in his deposition, Chief Kunkle explained that in

discussing the promotion with Cooper, he used the Christmas card as “another example” of

why he did not find Cooper suitable for the position of Deputy Chief, but that the card played

no role in his decision-making. Chief Kunkle expressly stated that he would not have

promoted Cooper even if he had never seen the card. Cooper has not provided any evidence

to controvert this testimony. The Court therefore finds that Cooper has failed to raise a

genuine issue of material fact as to whether the DPA influenced Chief Kunkle’s decision not

to promote Cooper. Accordingly, the Court grants Defendants’ motion for summary

judgment with respect to Cooper’s retaliation claim. 

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ORDER – PAGE 10

Signed June 4, 2007.

_________________________________

David C. Godbey

United States District Judge

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