1

 Cummings also alleged that the City discriminated against him when it

refused to allow him to sit for promotional exams because he, at the time, was

on a light-duty status. Cummings, however, has conceded to the dismissal of this

basis for the City’s liability under the ADA. (Pl.’s Resp. at 12, n.5.)

Therefore, the Court dismisses that basis for liability under the ADA.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JOHNNY LEE CUMMINGS §

 §

VS. § CIVIL ACTION 4:05-CV-698-Y

 § 

CITY OF FORT WORTH, TEXAS §

ORDER PARTIALLY GRANTING AND

PARTIALLY DENYING MOTION FOR SUMMARY JUDGMENT

Plaintiff Johnny Lee Cummings has brought suit against the City

of Fort Worth (“the City”) for discrimination and retaliation under

the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.

(“ADA”). Cummings was a seventeen-year veteran of the Fort Worth

Police Department before accepting disability retirement after severely

injuring his back in the line of duty. After fully recuperating,

receiving a full release from his doctor to return to work as a police

sergeant, and proving that he was fully capable of performing all

of the duties required of a police sergeant, Cummings contends that

the City’s chief of police refused to reinstate him because he regarded

Cummings as being disabled and because Cummings had a record of being

disabled. Cummings also contends that the City retaliated against

him because he opposed the discrimination and filed a complaint.1

The City has filed a motion (doc. #56) for summary judgment on

all of Cummings’s claims. After review, the Court concludes that

the City’s motion should be PARTIALLY GRANTED AND PARTIALLY DENIED.
2 Because the City has moved for summary judgment, the Court will view the

facts and draw all reasonable inferences in light most favorable to Cummings.

3

 Chief Windham left the City in August 1999 and past away in January

2000.

2

I. Factual Background2

Cummings was a seventeen-year veteran police sergeant for the

City until he took disability retirement in October 1993. While in

the line of duty, Cummings suffered a severe back injury from a

motorcycle accident that required him to have back surgery. His

doctors opined that Cummings was “totally incapacitated for life.”

(Pl.’s App. at 292-93.) According to his doctors, Cummings suffered

from numerous physical limitations, and it is undisputed that these

limitations prevented Cummings from fully performing the duties of

a police sergeant. He was placed on a light-duty status until his

disability retirement.

Cummings claims that his decision to seek disability retirement

stems from a conversation he had with then Police Chief Thomas Windham3

and Executive Deputy Chief David Dees. Cummings claims that Chief

Windham told him that he had been an excellent police officer and

sergeant for him and that Chief Windham knew Cummings desired to return

to full duty. Cummings claims that Chief Windham acknowledged that

he had been undergoing a tremendous amount of therapy but that the

therapy was time consuming and made it difficult for Cummings to

continue to work on a light-duty status and focus on his rehabilitation. Cummings states that Chief Windham advised him that it would
3

be in his best interests to seek disability retirement so that he

could devote all of his time to rehabilitating his back. Cummings

claims that Chief Windham told him that he could return to the force

if and as soon as he fully recuperated.

After accepting disability retirement, Cummings’s physicians

continued to advise the retirement board that Cummings was “totally

incapacitated for life,” that Cummings suffered from orthopedic

problems and degenerative disk disease, and that he continued to suffer

from physical limitations that prevented him from fully performing

the functions of a police sergeant. (Pl.’s App. at 292-93.) Although

Cummings was approved for disability retirement, the board permitted

Cummings to work for the Fort Worth police department on a part-time

basis as a coordinator for the department’s Citizens on Patrol program

and neighborhood watch groups (hereinafter “COPS coordinator”). 

Cummings began a rigorous rehabilitation program that included

spending four to seven hours almost daily in physical therapy.

Cummings states that his physician, Doctor Joseph Gaines, told him

that if he continued this intensive rehabilitation, he might recuperate

and be able to return to full duty. Doctor Gaines remarked that

Cummings had “a strong desire to recover to normal physical abilities

and return to work.” (Id. at 294.) 

Cummings claims that in early 1999 Chief Windham told him that

if the retirement board’s doctor released him to return to full duty

as a police sergeant and if his disability retirement was discontinued,
4

he would rehire Cummings as a police sergeant. Cummings claims that

Chief Windham told him that he would first have to get his disability

retirement discontinued and then they could start the reinstatement

process.

Cummings’s determination and efforts at his rehabilitation paid

off. In March 1999, Dr. Gaines declared that Cummings had “rehabilitated from all injuries.” (Id.) Doctor Gaines reviewed the

job description for a Fort Worth police sergeant and concluded that

Cummings “can physically accomplish all tasks and return to work at

full duty status.” (Id.) Doctor Gaines credits Cummings’s “very

positive attitude and desire to return to work” as a primary factor

in his rehabilitation. (Id.)

As part of the reinstatement process, Cummings underwent a

functional-capacity evaluation administered by a doctor selected by

the retirement board. The purpose of the evaluation was to determine

Cummings’s functional abilities in light of the job description for

police sergeant provided by Chief Windham. The evaluation required

Cummings to complete rigorous endurance tests and included requiring

him to lift 100 pounds and carrying 200 pounds for ten feet. Cummings

completed all of the required tasks. The board’s physician concluded

that Cummings could “return to his job without modifications and

restrictions.” (Id. at 299.) Based on the results and the physician’s

recommendation, the retirement board concluded that Cummings was no

longer disabled and it discontinued his disability retirement in May
4

 Although the retirement board took Cummings off of disability retirement,

it had no authority to reinstate him as a police officer. That decision was

Chief Windham’s.

5

 While the City does not admit that Chief Windham actually made these

statements, for purposes of its summary-judgment motion, the City accepts

Cummings’s assertions as true. (Def.’s Br. at 4, n.1.) 

5

1999.4

Shortly thereafter, Cummings met with Chief Windham to discuss

being reinstated as a police sergeant. According to Cummings, Chief

Windham told him that he would not reinstate Cummings because he

thought Cummings was still disabled and would remain permanently

disabled. Cummings claims that Chief Windham accused him of unduly

influencing the doctor because of his desire to return to work. He

claims that Chief Windham did not believe the doctor’s opinion that

he was no longer disabled and capable of performing all of the duties

of police sergeant without restriction or modification.5

Thereafter, Cummings spoke with Marshal Jim Rutledge to inquire

about applying for a deputy marshal position in the City’s Marshal’s

Office. Because he was no longer on disability retirement, Cummings

had no income, and he wanted to stay in the City’s retirement system

until he was able to get his job back as a Fort Worth police officer.

Marshal Rutledge was a retired Fort Worth police lieutenant and,

thus, had been acquainted with Cummings. According to Cummings,

Marshal Rutledge told him that he thought Cummings was a very

professional officer and would like to have Cummings work for him.

He reviewed Cummings’s functional-capacity evaluation and commented
6

that Cummings was in better physical condition than anyone that was

currently working for him. Cummings states that Marshal Rutledge

then inquired as to why he was not seeking reinstatement with the

police department. Cummings states that he explained Chief Windham’s

refusal to rehire him because he regarded him as being disabled and

that he had planned to lodge a formal complaint for discrimination.

After speaking with Marshal Rutledge, Cummings met with the City’s

ADA coordinator, Libby Lanzara, and explained to her his desire to

remain employed with the City. According to Cummings, Lanzara reviewed

his credentials and told him that the only positions he qualified

for were police officer or deputy marshal. Cummings claims that

Lanzara informed him that the City’s Marshal’s Office had openings

for deputy marshal. Based on his conversation with Lanzara and his

seemingly positive conversation with Marshal Rutledge, Cummings

submitted an application for a deputy-marshal position.

Cummings had an initial interview with Marshal Rutledge and Chief

Deputy City Marshal Ron Babcock. During this initial interview,

Cummings claims that Marshals Rutledge and Babcock inquired as to

why Cummings was not being reinstated in the police force. Cummings

claims that he explained Chief Windham’s refusal to rehire him because

he believed Cummings was disabled, told them that he felt Chief Windham

was unlawfully discriminating against him, and told them that he had

planned to file a complaint. 

Cummings claims that both Rutledge and Babcock were very
6

 For purposes of its summary-judgment motion, the City concedes that

Cummings did in fact discuss his alleged disability-discrimination claim against

Chief Windham with Director Paniagua and Marshal Rutledge in his interview.

(Def.’s Br. at 5 n.2.)

7

complimentary to him in the interview. Cummings claims that they

both told him that he had an excellent record and that he was superior

to any other candidate for the position. (Pl.’s App. at 69.) At

the conclusion of the interview, Cummings claims that Marshal Rutlegde

walked him to the door, shook his hand, and told him that he looked

forward to having Cummings work for him. Marshal Rutledge, however,

did not offer Cummings the job at that point.

Elsa Paniagua was the director of the Municipal Court Department

when Cummings had applied for the deputy-marshal position. Marshal

Rutledge reported directly to her. According to Director Paniagua,

in May 1999, the Municipal Court Department began accepting applications to fill a deputy-marshal position. A panel that included

Marshals Rutlegde and Babcock reviewed the applications and conducted

initial interviews. Director Paniagua explained that the panel

recommended two candidates for the position: Cummings and Mickey

Kimbrow. 

Marshal Rutledge and Director Paniagua interviewed Cummings and

Kimbrow. During his interview, Cummings claims that Paniagua

questioned him about why Chief Windham refused to rehire him. Cummings

states that he explained just as before that he thought Chief Windham

was discriminating against him because he regarded Cummings as being

disabled and that he had planned on filing a complaint.6 Cummings
8

claims that after the interview concluded, Marshal Rutledge again

walked him out and told him that he was the most outstanding candidate

they had, that there won’t be a problem, and that he would get back

to him. 

After a couple of weeks, Cummings learned that he had not been

selected for the deputy-marshal position. Director Paniagua claims

that she made the final decision to hire Kimbrow. She explained,

Mickey Kimbrow was chosen for the position

because he made a better impression during the

interview, and had more traits that I was looking

for in a deputy marshal. I believed that Mr.

Kimbrow was better suited for the position

because he had the experience for the position

and he had a more positive personal disposition

than Mr. Cummings. Mr. Kimbrow was more outgoing

and personally engaging than Mr. Cummings . .

. . I hired Mr. Kimbrow based entirely on his

qualifications and his superior job interview.

 

(Def.’s App. at 40-41.) Marshal Rutledge is no longer employed with

the City and there is no evidence as to which candidate he recommended

Director Paniagua choose.

Cummings filed a sworn affidavit for discrimination with the

Equal Employment Opportunity Commission (“EEOC”) through the Fort

Worth Commission on Human Rights in June 1999. In the affidavit,

Cummings complained that the City unlawfully discriminated against

him when Chief Windham refused to reinstate him as a police sergeant

because he regarded Cummings as being disabled. In September 1999,

Cummings filed a complaint of discrimination with the EEOC. In that

complaint, Cummings alleged the City discriminated against him when
7

 Mendoza succeeded Windham as chief of police after Windham had passed

away. 

9

Chief Windham refused to rehire him as a police sergeant because he

had a record of being disabled and because he regarded Cummings as

being disabled. Cummings also alleged that the City retaliated against

him for opposing Chief Windham’s alleged disability-discrimination

when it failed to select him for the deputy-marshal position. Shortly

after filing the EEOC complaint, Cummings was fired from his part-time

position as COPS coordinator. Cummings, however, never filed an EEOC

complaint for retaliatory discharge. 

After a thorough investigation, the EEOC determined that there

was “reasonable cause to believe that there is a violation of [the

ADA].” (Pl.’s App. at 1.) The EEOC went on to state,

Further, in a like and related matter, the

investigation revealed that [the City] is

discriminating against a class of employees who

were perceived as being disabled and/or as having

a record of disability. [The City] treated them

differently by requiring them to meet a physical

standard not required of officers that were not

perceived as having a disability and/or as having

a record of a disability. 

 

(Id.) The evidence revealed that in August 2000, Chief of Police

Ralph Mendoza7 began tracking all officers in the department who were

on a leave of absence, sick leave, or a light-duty status due to an

on- or off-the-job injury. An internal memo listed numerous officers

who had been documented as having a permanent impairment preventing

them from performing the full duties of a police officer. For those
10

officers, it was recommended that the police department begin “layoff

proceedings . . . giving the officer 60 days to research other

opportunities with the city or apply for disability retirement.”

(Pl.’s App. at 303.) 

Subsequently, Chief Mendoza sent a memo to “all Fort Worth Police

Department Sworn Personnel” informing them that “the department is

currently evaluating all officers on injury leave or assigned to light

duty positions.” (Id. at 309.) The purpose of the evaluation was

to determine whether each officer had “reached maximum medical

improvement” but were still “unable to perform the essential functions

of the police officer job.” (Id. at 309-10.) Such an officer would

“be advised of [his] retirement options.” (Id.) Chief Mendoza

informed his officers that “the department will not normally consider

light duty details to officers until the exhaustion of the officers’

entitlements . . . and then, only in those cases where it is in the

department’s best interests to do so.” (Id. at 310.) Thus, according

to the policy outlined in the memo, any officer who had been injured

but failed to recuperate so that he could fully perform the duties

of a police officer without restriction or modification would be

required to leave the force. 

Cummings is currently employed by the City of Weatherford, Texas,

in the Weatherford Police Department as a motorcycle patrol officer.

He has been so employed since November 1999. 
11

II. Analysis

A. Summary-Judgment Standard

Summary judgment is proper when the record establishes “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). An issue is considered “genuine” if “it is real and substantial

as opposed to merely formal, pretended, or a sham.” Bazan v. Hidalgo

Cty., 246 F.3d 481, 489 (5th Cir. 2001). Facts are considered

“material” if they “might affect the outcome of the suit under

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). To determine whether there are any genuine issues of material

fact, the Court must first consult the applicable substantive law

to ascertain what factual issues are material. Lavespere v. Niagra

Mach. & Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the

Court must review the evidence on those issues, viewing the facts

in the light most favorable to the nonmoving party. Newell v. Oxford

Mgmt. Inc., 912 F.2d 793, 795 (5th Cir. 1990).

In making its determination on the motion, the Court must look

at the full record including the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits. See FED. R. CIV.

P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule

56, however, “does not impose on the district court a duty to sift

through the record in search of evidence to support” a party’s motion

for, or opposition to, summary judgment. Skotak v. Tenneco Resins,
12

Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). Thus, parties should

“identify specific evidence in the record, and . . . articulate”

precisely how that evidence supports their claims. Forsyth v. Barr,

19 F.3d 1527, 1536 (5th Cir. 1994). Further, the Court’s function

is not to weigh the evidence, make credibility determinations or

determine the truth of the matter; rather, the Court is to determine

whether there is a genuine issue for trial. See Anderson, 477 U.S.

at 249.

When the moving party has carried its summary-judgment burden,

the respondent must go beyond the pleadings and produce evidence that

sets forth specific facts showing there is a genuine issue for trial.

Celotex Corp v. Catrett, 477 U.S. 317, 324 (1986); see also FED. R.

CIV. P. 56(e). This burden is not satisfied by creating some

metaphysical doubt as to the material facts, by conclusory allegations,

by unsubstantiated assertions, or by only a scintilla of evidence.

See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

If the evidence is merely colorable or is not significantly probative,

summary judgment may be granted. See Anderson, 477 U.S. at 249-50.
13

B. Discussion

1. Whether the City is Entitled to Summary Judgment on

Cummings’s Claim of Disability Discrimination Based

on Cummings’s Having a Record of Disability and Being

Regarded as Disabled

 

The ADA makes it unlawful for an employer to

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). To establish a claim of disability discrimination, Cummings must prove three elements: “(1) At the time he sought

employment he had a ‘disability’ within the meaning of the ADA; (2)

he was qualified for the position for which he sought employment;

and (3) he was not hired because of his disability.” Rodriguez v.

Conagra Grocery Products Co., 436 F.3d 468, 474 (5th Cir. 2006). 

“As a threshold requirement in an ADA claim, the plaintiff must,

of course, establish that he has a disability.” Waldrip v. General

Electric Co., 325 F.3d 652, 654 (5th Cir. 2003)(internal quotations

and citations omitted). The ADA defines “disability” as either “(A)

a physical or mental impairment that substantially limits one or more

of the major life activities . . .; (B) a record of such an impairment;

or, (C) being regarded as having such an impairment.” 42 U.S.C. §

12102(2). Cummings admits that at the time he sought to reclaim his

former position as police sergeant, he was not in fact disabled.

Cummings bases his claim of disability discrimination on the fact
14

that he had a record of being disabled and that he was regarded as

being disabled. 

i. Record of Disability

In his response to the City’s summary-judgment motion, Cummings

asserts that the City failed to argue that he was not disabled under

the ADA based on a record of disability. (Pl.’s Resp. Br. at 14,

n.6.) Thus, Cummings argues that the City has conceded that he was

disabled as defined by the ADA based on his having a record of

disability. Alternatively, he argues that, at the very least, a

genuine issue of material fact exists as to whether he had a record

of being disabled. 

In its reply, the City argues that Cummings never pled “record

of disability” as a basis for disability discrimination. The City

contends that Cummings specifically pled two protected categories

under the ADA: that he was disabled and he was regarded as being

disabled. The City contends that Cummings was “silent on the ‘record

of impairment’” and, thus, the City “was not on notice that it was

necessary to prepare a defense for it.” (Def.’s Reply at 6-7.) Thus,

the City argues, the question of whether the City discriminated against

him on the ground that Cummings had a record of disability is not

properly before the Court. (Def.’s Reply at 5.) 

“A claim [that] is not raised in the complaint but, rather, is

raised only in response to a motion for summary judgment is not
15

properly before the court.” Cutrera v. Bd. of Supervisors of La.

State Univ., 429 F.3d 108, 113 (5th Cir. 2005). In Swierkiewicz v.

Sorema, 534 U.S. 506, 512 (2002), the Supreme Court rejected any

“heightened pleading standard in employment-discrimination cases,”

and reiterated that Federal Rule of Civil Procedure 8(a)(2) only

requires a short and plain statement of the claim showing that the

pleader is entitled to relief. “Such a statement,” the Supreme Court

stated, “must simply give the defendant fair notice of what the

plaintiff’s claim is and the grounds upon which it rests.” Id.

(internal quotations and citations omitted)(emphasis added). 

In his second amended complaint, Cummings alleged that he “is

disabled and/or is regarded as disabled, as defined by the [ADA] .

. . .” (Pl.’s 2nd Am. Compl. at 6.) He alleged that he had “suffered

an extensive permanent injury to his back and back failure [that]

significantly limited his ability to work or run.” (Id.) As a result

of this injury, Cummings alleged that the City “regarded [him] as

disabled.” (Id.) Cummings went on to accuse the City of violating

“the ADA by intentionally discriminating against [him] because of

his disability and/or because he is regarded as disabled.” (Id.)

And under a section in his second amended complaint titled Exhaustion

of Administrative Procedures, Cummings stated that “after a thorough

investigation, the EEOC . . . determined there was reasonable cause

to conclude that [the City] discriminated against [Cummings] because

he was disabled and because he was regarded as disabled.” (Id. at
8

 The parties did state that the question of whether Cummings had a record

of a disability is a contested issue of law. (Joint Pretrial Order at 9.) This

order, however, was entered after the parties had filed their respective briefs

regarding the City’s summary-judgment motion. 

16

3.)

Cummings’s original and first amended complaints contain

substantially similar allegations. But what is important to note

is that none of Cummings’s complaints assert discrimination based

on a record of disability. Moreover, in the parties’ joint status

report (doc. #15), Cummings contended that the City discriminated

against him “for being disabled or being regarded as disabled in

violation of the [ADA] . . . .” And in the parties’ joint pretrial

order (doc. #70), Cummings simply claims that “the City refused to

rehire him as a police sergeant in violation of the ADA . . . .”8

Thus, up until his response to the City’s summary-judgment motion,

there was no indication that Cummings ever intended to assert that

the City discriminated against him on the basis that he had a record

of being disabled.

Cummings filed this suit after filing his administrative complaint

with the EEOC and receiving his right-to-sue letter. Although Cummings

did assert in his EEOC complaint that the City had discriminated

against him on the basis that he had a record of disability and/or

that it had regarded him as being disabled, he specifically pled before

this Court that he suffered from disability discrimination because

he was actually disabled and/or because he was regarded as being

disabled. While Cummings’s EEOC complaint gave the City notice that
17

Cummings was claiming disability discrimination based ON being regarded

as having a disability and having a record of a disability, that notice

extended to the City only while defending against those claims before

the EEOC. When Cummings filed his suit in federal court specifically

alleging “disability” and “regarded as disabled,” the City was on

notice that Cummings was asserting those grounds as bases for its

liability. Based on the specificity of both the EEOC compliant and

his complaints in federal court, it would be reasonable to conclude

that Cummings had abandoned the “record of disability” theory alleged

in his EEOC complaint. 

The record shows that the City did not prepare to defend a claim

of disability discrimination based on a record of Cummings’s being

disabled. The focus of Cummings’s two depositions was on whether

he was in fact disabled at the time he sought to be rehired as a police

sergeant and on whether Chief Windham refused to rehire him because

he regarded Cummings as being disabled. Cummings conceded in his

deposition that at the time he sought to be reinstated on the police

force, he was not in fact disabled. His complaint was that Chief

Windham, nevertheless, refused to rehire him because he regarded

Cummings as being disabled. 

The City was not on notice that it should prepare a defense

against record of disability as a theory of liability. Instead, the

City prepared its defense based on Cummings’s actual articulated

theories of liability on his complaint: actual disability and regarded
18

as being disabled. Therefore, the Court declines to consider

Cummings’s claim of disability discrimination on the theory of “record

of disability” because he did not plead it. Instead, he improperly

raised it for the first time in his response to the City’s summaryjudgment motion. See Ellis v. Crawford, No. 3:03-CV-2416-D, 2007

U.S. Dist. LEXIS 41120 *35 (N.D.Tex. Jun. 6, 2007)(Fitzwater, J.)(in

section 1983 claim involving racial discrimination, declining to

entertain racially-hostile-working-environment claim raised for first

time in summary-judgment response). 

ii. Regarded as Disabled

Cummings argues that the City discriminated against him because

it believed that Cummings suffered from an impairment that

substantially limited his major life activity of working. (Pl.’s

Br. at 17.) In essence, Cummings’s argument is that Chief Windham

refused to reinstate him to any position in the police force because

he regarded Cummings as suffering from a disability that prevented

him from performing any job in law enforcement. (Id. at 19.) 

One is regarded as having a disability if the individual (1)

has an impairment that does not substantially limit a major life

activity but the employer perceives the impairment as such; (2) has

an impairment that substantially limits a major life activity only

because of the attitudes of others toward such an impairment; or (3)

has no impairment at all but is regarded by the employer as having
9

 Because the parties accept the EEOC regulations as reasonable and rely

upon them, the Court will assume, without deciding, that the regulations are

reasonable and entitled to deference under Chevron.

19

an impairment that substantially limits a major life activity. See

Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996). The

ADA does not define the terms “substantially limits” or “major life

activity.” But in the context of employment discrimination, Congress

has tasked the EEOC with issuing regulations that address disability

discrimination in the workplace. See 42 U.S.C. § 12116; Price v.

The National Board of Medical Examiners, 966 F. Supp. 419, 425

(S.D.W.Va. 1997); Bridges, 92 F.3d at 332 (stating EEOC regulations

“provide significant guidance”). “Such regulations are given controlling weight unless they are arbitrary, capricious, or manifestly

contrary to statute.” Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S.

837, 844 (1984).9

 Under EEOC regulations, working is considered a

major life activity. See 29 C.F.R. § 1630.2(i). 

A person is “substantially limited” if he is “unable to perform

a major life activity that the average person in the general population

can perform” or he is “significantly restricted as to the condition,

manner, or duration under which [he] 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 that

same major life activity.” 29 C.F.R. § 1630.2(j). In the context

of working

the term substantially limits means significantly
20

restricted in the ability to perform either a

class of jobs or a broad range of jobs in various

classes as compared to the average person having

comparable training, skills, and abilities. The

inability to perform a single, particular job

does not constitute a substantial limitation in

the major life activity of working.

29 C.F.R. § 1630.2(j)(3)(i). A perception that an “impairment . .

. affects only a narrow range of jobs can be regarded either as not

reaching a major life activity or as not substantially limiting one.”

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995).

This is so even if the narrow range of jobs affected are not

numerically insignificant. See Chandler v. City of Dallas, 2 F.3d

1385, 1392 n.29 (5th Cir. 1993). 

The City argues that Cummings has failed to present a genuine

issue of material fact that Chief Windham regarded him as being

disabled because Cummings “has no evidence that Chief Windham regarded

him as disabled in a broad class of jobs . . . .” (Def.’s Br. at

12.) The City points out that at the time Chief Windham refused to

rehire Cummings as a police sergeant, Cummings was working part-time

for the police department as the COPS coordinator. Further, the City

points out that repeatedly in his deposition, Cummings insisted that

Chief Windham “expressed doubt in [Cummings’s] ability to perform

‘patrol’ and ‘field work’ . . . .” (Id.) The City argues that this

“is a narrow class of jobs” and that, therefore, Cummings has failed

to show that a genuine issue of material fact exists as to whether

Chief Windham regarded him as incapable of performing a broad class
21

or range of jobs. (Id.)

While it is true that Chief Windham did refuse to rehire Cummings

in the specific job as a police sergeant, the Court believes that

there is a genuine issue of material fact as to whether Chief Windham,

his successor, Chief Mendoza, and the Fort Worth Police Department

regarded Cummings and those similarly situated to Cummings as disabled

and incapable of performing any job in the field of law enforcement.

Numerous courts have concluded that the general area of law

enforcement constitutes a class of jobs. See Williams v. Phila. Hous.

Auth. Police Dep’t., 380 F.3d 751, 764-65 (3rd Cir. 2004)(holding

law enforcement is a class of jobs); McKenzie v. Dovala, 242 F.3d

967, 971-72 (10th Cir. 2001)(recognizing law enforcement as a class

of jobs); Stevens v. City of Vallejo, No. 97-17176, 1998 U.A. App.

LEXIS 29567 *4 (9th Cir. Nov. 3, 1998)(“The evidence, viewed in the

light most favorable to Stevens, shows only that Appellees regarded

Stevens as unable to perform a single, particular job——that of regular

police officer——rather than a class of jobs, such as law enforcement.”); Allmond v. Akal Security, Inc., No. 4:05-CV-96(HL), 2007

U.S. Dist. LEXIS 72713, *29 (M.D.Ga. Sep. 28, 2007)(finding genuine

issue of material fact exists as to whether the defendants perceived

plaintiff as having an impairment that precluded him from working

in field of law enforcement); Smaw v. Va. Dep’t. of State Police,

862 F. Supp. 1469, 1475 (E.D.Va. 1994)(recognizing field of law

enforcement as a class of jobs); Matlock v. City of Dallas, No. 3:97-
22

CV-2735-D, 1999 U.S. Dist. LEXIS 17953 *11-12 (N.D.Tex. Nov. 12,

1999)(Fitzwater, J.)(plaintiff with hearing impairment employed as

a police officer did not have disability that prevented him from

performing a broad class of jobs in law enforcement). 

Indeed, In Tullos v. The City of Nassau Bay, 137 Fed. Appx. 638

(5th Cir. 2005), the United States Court of Appeals for the Fifth

Circuit recognized that numerous other courts have concluded that

the field of law enforcement constituted a class of jobs under the

ADA. Although recognizing that in Bridges, 92 F.3d at 335, it was

held that the single job of police officer did not constitute a broad

class of jobs, the Court also recognized that “we have not ruled on

whether the area of law enforcement overall is a class of jobs.”

Tullos, 137 Fed. Appx. at 649. And although the court did not decide

that issue in Tullos, the court still upheld a jury verdict for Officer

Tullos concluding that the “jury could . . . have reasonably found

that [the chief of police] perceived [Officer] Tullos’s impairment

as significantly restricting him from employment in the field of law

enforcement, which has been found by other courts to constitute a

class of jobs under the regulations implementing the ADA.” Id. 

The Court concludes that there is a genuine issue of material

fact as to whether Chief Windham actually regarded Cummings as

incapable of performing any sworn law-enforcement function because

of his previous back injury. After being injured in the line of duty,

Chief Windham did not try to convince Cummings to take a different
10 Hopper, Noyes, Ahrend, Reese, and Weiler were all police officers in the

Fort Worth Police Department who suffered injuries on the job that prevented them

from performing the duties of police officer without modifications or

restrictions. Similar to Cummings, these officers alleged disability

discrimination against the City. They have since settled their claims with the

City and they have been dismissed from this suit. 

23

law-enforcement position in the police department but, instead,

convinced him to medically retire altogether. And after establishing

that he was no longer disabled, the evidence shows that Chief Windham

still refused to rehire Cummings for any sworn position in the police

department because he believed that Cummings was still disabled.

Although Chief Windham did hire Cummings as a COPS coordinator parttime, the evidence also shows that this was not a sworn law-enforcement

position. It was not a position “in the field of law enforcement,”

but rather, it was a civilian position that supported law enforcement.

Further, Cummings has submitted the EEOC determinations of his

disability-discrimination complaint as well as the disabilitydiscrimination complaints of plaintiffs Hopper, Noyes, Ahrend, Reese,

and Weiler.10 In those determinations, the EEOC, after conducting

a thorough investigation, concluded that there was reasonable cause

to believe that the City “identified [police officers] for employment

action based upon [a] record of an injury, impairment, or disability.”

(Pl.’s App. at 312, 314.) The EEOC’s investigation revealed that

the City “began identifying police officers that had a record of

injury, impairment, or disability” that required their reassignment

to positions that did not exceed the restrictions placed on them by

their physicians, and forced these police officers to medically retire
24

from or otherwise leave the police force if they failed to fully

recuperate within a specified time period. And the investigation

revealed that the injured or impaired police officers were “treated

. . . differently” and required “to meet a physical standard not

required of officers that were not perceived as having a disability

and/or as having a record of a disability.” (Id.) 

“Under precedents of this circuit, EEOC determinations and

findings of fact, although not binding on the trier of fact, are

admissible as evidence in civil proceedings as probative of a claim

of employment discrimination at issue in the civil proceedings.”

Lindsey v. Prive Corp., 161 F.3d 886, 894 (5th Cir. 1998); see also

Palasota v. Haggar Clothing Co., 342 F.3d 569, 577, n.13 (5th Cir.

2003)(admonishing district court for ignoring EEOC determination in

age-discrimination case). Although not binding on the Court, the

EEOC’s determinations are probative evidence that Cummings was regarded

as being disabled and incapable of performing any job in the field

of law enforcement. 

Finally, Cummings has presented evidence that the Fort Worth

Police Department had singled out other officers who had been injured

in the line of duty and, as a result of their injuries, were incapable

of performing the duties of police officer without any modifications

or restrictions. The evidence showed that the police department

adopted a policy of laying off these injured officers or forcing them

to take medical retirement if they did not fully recuperate within
25

a specified period of time. There is no evidence that the police

department regarded them as capable of taking any other law-enforcement

position in the police department. Taken together, this evidence

establishes that there is a genuine issue of material fact as to

whether Cummings was regarded as being disabled and incapable of

performing any position in the field of law enforcement. 

2. Whether the City Retaliated Against Cummings for Filing

a Complaint for Disability Discrimination

Cummings complains that the City fired him from his part-time

position as COPS coordinator and refused to hire him as a deputy

marshal in retaliation for his opposing and complaining of Chief

Windham’s alleged disability discrimination. The City argues that

it is entitled to summary judgment on both claims. First, the City

contends that Cummings’s retaliatory-discharge allegation must be

dismissed because it exceeds the scope of his complaints to the EEOC

and the Texas Commission on Human Rights (“TCHR”). See Culwell v.

City of Fort Worth, 468 F.3d 868, 874 (5th Cir. 2006)(holding district

court properly dismissed retaliation claims because they exceeded

scope of complaint to the EEOC and TCHR). Second, the City contends

that Cummings’s allegation that the City retaliated against him by

failing to select him for the deputy marshal position must be dismissed

because Cummings cannot not prove that “but for” his opposition to

and complaint of disability discrimination, he would have been selected
11 The City does not argue that, because Cummings cannot establish that

there is a genuine issue of material fact as to whether the City terminated him

in retaliation for filing a complaint of disability discrimination, Cummings’s

claim of retaliatory discharge should be dismissed. Therefore, the Court will

only consider whether that charge is properly before the Court. 

26

for the deputy-marshal position.11

i. Whether Cummings’s Allegation of Retaliatory

Discharge is Properly Before the Court 

Before bringing suit for discrimination and retaliation under

the ADA, a plaintiff must first exhaust administrative remedies.

See 42 U.S.C. § 12117 (incorporating 42 U.S.C. § 2000e-5(e)); Manning

v. Chevron Chem. Co. LLC, 332 F.3d 874, 878 (5th Cir. 2003).

“Exhaustion occurs when the plaintiff files a timely charge with the

EEOC and receives a statutory notice of right to sue.” Taylor v.

Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). The

filing of an administrative complaint with the EEOC “is a jurisdictional prerequisite to bringing suit . . . .” Gupta v. East Texas

State University, 654 F.2d 411, 413 (5th Cir. 1981); Culwell, 468

F.3d at 874 (“Because complaints to these bodies [referring to EEOC

and TCHR] are prerequisites to filing retaliation claims in court,

the district court lacked jurisdiction and appropriately dismissed

the retaliation claims.”). “One of the central purposes of the

employment discrimination charge is to put employers on notice of

the existence and nature of the charges against them.” Manning, 332

F.3d at 878. 

Cummings does not contest that he failed to file a complaint
27

with the EEOC and the TCHR alleging retaliatory discharge by the City.

Instead, relying on Gupta, Cummings argues that the Court enjoys

ancillary jurisdiction over his retaliation claim because it grows

out of his earlier charge of discrimination and retaliation filed

with the EEOC and the TCHR.

In Gupta, the Fifth Circuit held that “it is unnecessary for

a plaintiff to exhaust administrative remedies prior to urging a

retaliation claim growing out of an earlier charge; the district court

has ancillary jurisdiction to hear such a claim when it grows out

of an administrative charge that is properly before the court.” 654

F.2d at 414. Gupta had filed suit against East Texas State University

(“ETSU”) for employment discrimination based on national origin and

religion. Id. at 412. Prior to filing suit, Gupta filed a complaint

with the EEOC for discrimination. But after filing suit, ETSU informed

him that his teaching contract would not be renewed. Id. at 413.

Gupta added a charge of retaliatory discharge to his suit without

filing a complaint with the EEOC. Because Gupta’s retaliatory

discharge action grew out of his original complaint for discrimination,

it was held that the district court had ancillary jurisdiction. 

The City argues that Gupta has been effectively overruled by

the Supreme Court decision in National Railroad Passenger Corporation

v. Morgan, 536 U.S. 101 (2002). Morgan is based on the statute of

limitations in Title VII. Under section 2000e-5(e)(1), a plaintiff

must file a charge with the EEOC either 180 or 300 days “after the
28

alleged unlawful employment practice occurred.” At issue in Morgan

was whether discrete discriminatory acts or discrete acts of

retaliation that fell outside the statute of limitations are still

viable if the untimely incidents were part of an ongoing unlawful

employment practice and at least one of the incidents in the ongoing

unlawful employment practice did fall with the limitations period.

Morgan, 536 U.S. at 106-7. This was referred to as “the continuing

violation doctrine.” Id. The Supreme Court specifically referenced

three versions of the continuing-violation doctrine: One version from

the Ninth Circuit, one from the Seventh Circuit, and one from the

Fifth Circuit.

The Supreme Court held that a plaintiff could not recover for

discrete acts of discrimination or retaliation that occurred outside

the 180- or 300-day limitation period. 536 U.S. at 105. “Each

discrete discriminatory act,” according to the Supreme Court, “starts

a new clock for filing charges alleging that act. The charge,

therefore, must be filed within the 180- or 300-day . . . period after

the discrete discriminatory act occurred.” Id. at 113. The Supreme

Court recognized that discrete acts include “termination, failure

to promote, denial of transfer, or refusal to hire . . . .” Id. at

114 (emphasis added). Thus, the Supreme Court abrogated the

continuing-violation doctrine as a mechanism to keep discrete acts

of discrimination or retaliation that occurred outside of the

limitations period viable. Based on this, the City argues that the
29

Fifth Circuit’s precedent in Gupta has been effectively overruled.

But Gupta was not based on the timely filing of a complaint with

the EEOC, but on whether a plaintiff must still file a separate

complaint for retaliation that occurred or grew out of an already

existing complaint for discrimination. Thus, the decision in Gupta

was not based on timeliness, but on whether a district court enjoys

ancillary jurisdiction over acts of retaliation that occurred after

a plaintiff had filed a charge of discrimination and, arguably, because

a plaintiff had filed such a charge. The court of appeals found

“strong practical reasons and policy justifications for” concluding

that a district court enjoys ancillary jurisdiction over retaliation

claims growing out of an earlier charge for discrimination. Id. at

414. In particular, the court of appeals noted,

It is the nature of retaliation claims that they

arise after the filing of the EEOC charge.

Requiring prior resort to the EEOC would mean

that two charges would have to be filed in a

retaliation case[,] a double filing that would

serve no purpose except to create additional

procedural technicalities when a single filing

would comply with the intent of Title VII . .

. . Intertwined with this practical reason for

our holding is a strong policy justification.

Eliminating this needless procedural barrier will

deter employers from attempting to discourage

employees from exercising their rights under

Title VII.

Id. These practical considerations and policy justifications differ

from the reasons for a statutory period. Limitations periods are

designed to assure fairness to defendants by preventing a plaintiff

from bringing a claim that has become stale and from sitting on his
30

rights until evidence is lost, memories have faded, and witnesses

have disappeared. See Burnett v. New York Cent. R.R. Co., 380 U.S.

424, 428 (1965). This is undoubtedly important in the employmentdiscrimination context where employers may not preserve personnel

records for any significant period of time. 

Although one of the purposes of requiring plaintiffs to first

file their charges with the EEOC is to put employers on notice of

the existence and nature of the charges against them, Manning, 332

F.3d at 878, that purpose is achieved once a plaintiff has filed his

charge. At that point, an employer is on notice of a discrimination

charge and is on notice that it may be held liable for any subsequent

retaliation. Thus, the Fifth Circuit’s rule in Gutpa is not designed

to revive a stale claim, but to allow a plaintiff to pursue a claim

for retaliation for filing a complaint for discrimination. Such a

rule comports with the express purpose of the anti-retaliation

provisions in the employment-discrimination statutes. See 42 U.S.C.

§ 12203(a)(prohibiting retaliation for opposing disability discrimination). 

More persuasive is the fact that twice after the Supreme Court’s

decision in Morgan the Fifth Circuit continued to follow Gupta. In

an unpublished decision issued four months after Morgan, the Fifth

Circuit applied Gupta as good law, though it did not mention Morgan

in its decision. See Miller v. Southwestern Bell Telephone Co., 51

Fed. Appx. 928 (5th Cir. Oct. 7, 2002). Even more recently, the court
31

of appeals applied Gupta and held that a plaintiff’s retaliation claims

that occurred before the plaintiff filed his EEOC complaint did not

fall in the Gupta exception. See Eberle v. Gonzalez, 240 Fed. Appx.

622, 628 (5th Cir. May 18, 2007). “Alternatively,” the court stated,

“to the extent Eberle is claiming that he was retaliated against after

he filed his EEOC complaint in March 2004, this claim would be covered

by the Gupta exception.” Id. (emphasis in original). 

Although the Eberle decision did not address whether Morgan

overruled Gupta, the Court did cite Morgan in its opinion for the

proposition that “failure to promote is a discrete discriminatory

act” and therefore certain of Eberle’s claims for the failure to

promote were procedurally barred because he failed to seek EEO

counseling within forty-five days of his non-promotion. Id. Given

the fact that the Fifth Circuit has not addressed whether Morgan has

overruled Gupta and the fact that the Fifth Circuit continues to treat

Gupta as good law, the Court will continue to follow its precedent

until the Fifth Circuit holds otherwise. See also Griggs v. University

Health System, No. SA-06-CA-0384-XR, 2007 U.S. Dist. LEXIS 19277 *8

(W.D.Tex. Mar. 7, 2007)(following Gupta even in light of Morgan and

citing numerous district court opinions throughout the Fifth Circuit

following Gupta after Morgan). 

Here it is undisputed that the City’s alleged retaliatory

discharge of Cummings occurred after he filed his complaint for

disability discrimination with the EEOC and the TCHR. Therefore,
32

Cummings’s retaliatory discharge claim is “covered by the Gupta

exception” and the Court enjoys ancillary jurisdiction over it.

Eberle, 240 Fed. Appx. at 628.

ii. Whether a Genuine Issue of Material Fact Exists

as to Whether the City’s Refusal to Hire Cummings

for the Position of Deputy Marshal was Retaliation for His Opposing Disability Discrimination

 

The City argues that Cummings’s claim for retaliation based on

the City’s not selecting him for the position of deputy marshal must

be dismissed because he cannot “meet the high burden” of establishing

that “but for his complaint about discrimination, the City would have

hired him” as a deputy marshal. (Def.’s Br. at 15.) Cummings,

however, need not establish “but for” causation because the Court

concludes that the City has failed to rebut Cummings’s prima facie

case for retaliation.

As to retaliation claims under the ADA that are based on an

indirect method of proof, the Court applies the familiar burdenshifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122

(5th Cir. 1998). First, a plaintiff must establish a prima facie

case of unlawful retaliation by proving that (1) he engaged in activity

protected by the ADA; (2) an adverse employment action occurred; and

(3) a causal link exists between the protected activity and the adverse

employment action. Id.; Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th

Cir. 1999). By establishing a prima facie case, a plaintiff creates
33

a rebuttable presumption that the defendant-employer unlawfully

retaliated against the plaintiff. See Patrick v. Department of

Homeland Security, 394 F.3d 311, 315 (5th Cir. 2004). 

If a plaintiff establishes a prima facie case, the burden shifts

to the defendant-employer to come forward with a legitimate,

nondiscriminatory reason for the adverse employment action. Sherrod,

132 F.3d at 1122; Seaman, 179 F.3d at 301. If the defendant-employer

advances a legitimate, nondiscriminatory reason for the adverse

employment action, then the presumption of retaliation is rebutted

and the plaintiff “must adduce sufficient evidence that would permit

a reasonable trier of fact to find that the proffered reason is a

pretext for retaliation.” Sherrod, 132 F.3d at 1122; Seaman, 179

F.3d at 301; Patrick, 394 F.3d at 315; Long v. Eastfield College,

88 F.3d 300, 305 n.4 (5th Cir. 1996). 

The ultimate issue of retaliation, then, requires a plaintiff

“to prove that the adverse employment action would not have occurred

‘but-for’ the protected activity.” Sherrod, 132 F.3d at 1122. In

other words, even if a plaintiff’s protected conduct is a substantial

element in a defendant-employer’s decision not to hire the plaintiff,

no liability for unlawful retaliation arises if the plaintiff would

not have been hired even in the absence of the protected conduct.

See Long, 88 F.3d at 305 n.4. “The plaintiff must reveal a conflict

in substantial evidence on the ultimate issue of retaliation in order

to withstand a motion for summary judgment.” Sherrod, 132 F.3d at
34

1122. Evidence is substantial if it is of such quality and weight

that reasonable and fair minded men in the exercise of impartial

judgment might reach different conclusions. Id. 

Cummings has made a prima facie case of retaliation. First,

Cummings engaged in a protected activity when he told Marshals Rutledge

and Babcock and Director Paniagua that he planned on filing a complaint

for disability discrimination against Chief Windham when he interviewed

with them. A plaintiff has engaged in a protected activity if he

has opposed any practice made unlawful under the ADA. See Long, 88

F.3d at 304. Cummings made clear that he opposed Chief Windham’s

alleged disability discrimination and that he planned on filing a

complaint. The Court also concludes that Cummings’s belief that Chief

Windham had discriminated against him was reasonable. See Id.(“The

opposition clause . . . requires the employee to demonstrate that

[he] had at least a ‘reasonable belief’ that the practices [he] opposed

were unlawful.”)(Citation omitted). 

Second, the City took adverse action against Cummings when it

refused to hire him for the deputy-marshal position. And finally,

Cummings established a causal link between his complaint of Chief

Windham’s alleged disability discrimination and the City’s subsequent

refusal to hire him as a deputy marshal. “The standard for

establishing the ‘causal link’ element . . . is much less stringent”

than the burden of proving “but-for” causation. Long, 88 F.3d at

305 n.4; Sherrod, 132 F.3d at 1122. A plaintiff need not show that
12 Although Director Paniagua denies she knew at the time she chose Kimbrow

over Cummings that Cummings opposed and planned on complaining of Chief Windham’s

alleged disability discrimination, for purposes of its summary-judgment motion,

the City has conceded that Paniagua did in fact have such knowledge. (Def.’s Br.

at 16-17.) 

35

his protected activity was the sole factor motivating the employer’s

adverse employment action in order to establish the ‘causal link’

element of a prima facie case. See Long, 88 F.3d at 305 n.4. Instead,

a plaintiff need only show that the defendant-employer’s adverse

employment action “was based in part on knowledge of the [plaintiff’s]

protected activity.” Sherrod, 132 F.3d at 1122. Here, Cummings has

established that, at the moment Marshal Rutledge and Director Paniagua

decided to hire Kimbrow over him, they had knowledge of his opposition

to Chief Windham’s alleged disability discrimination and of Cummings’s

plan to file a complaint.12 Thus, Cummings has established a rebuttable

presumption that the City retaliated against him. 

The burden now shifts to the City to articulate a legitimate,

nondiscriminatory reason for selecting Kimbrow over Cummings. To

meets its burden, the City is required to “articulate a nondiscriminatory reason with ‘sufficient clarity’ to afford the [plaintiff] a

realistic opportunity to show that the reason is pretextual.” Patrick,

394 F.3d at 317 (emphasis in original). While a defendant-employer

may rely on subjective reasons for its personnel decisions, to rebut

a plaintiff’s prima facie case the defendant-employer “must articulate

in some detail a more specific reason than its own vague and

conclusional feeling about the [plaintiff].” Id. As endorsed by
36

the Fifth Circuit in Patrick, the Eleventh Circuit has illustrated

this point:

It might not be sufficient for a defendantemployer to say it did not hire the plaintiffapplicant simply because “I did not like his

appearance” with no further explanation.

However, if the defendant-employer said, “I did

not like his appearance because his hair was

uncombed and he had dandruff all over his

shoulders,” or “because he had his nose pierced,”

or “because his fingernails were dirty,” or

“because he came to the interview wearing short

pants and a T-shirt,” the defendant would have

articulated a “clear and reasonably specific”

basis for its subjective opinion——the applicant’s

bad (in the employer’s view) appearance.

Patrick, 304 F.3d at 317 (quoting, Chapman v. AI Transp., 229 F.3d

1012, 1034 (11th Cir. 2000)(en banc)). The Court concludes that the

City has not met its burden.

In an affidavit, Director Paniagua proffers the following reasons

as the City’s legitimate reason for selecting Kimbrow over Cummings:

(1) she felt Kimbrow “made a better impression during the interview”;

(2) Kimbrow “had more traits that [she] was looking for in a deputy

marshal”; (3) she believed Kimbrow “was better suited for the position

because he had the experience for the position and he had a more

positive personal disposition”; and (4) Kimbrow “was more outgoing

and personally engaging.” The Court finds these reasons vague and

conclusional. 

Director Paniagua does not explain how Kimbrow “made a better

impression.” She fails to articulate what specific “traits” Kimbrow

possessed that Cummings did not and what specific traits she was
37

looking for in a deputy marshal. Director Paniagua does not articulate

what specific experience Kimbrow had that Cummings did not and how

that experience made Kimbrow better qualified in her opinion. And

she fails to explain what is meant by Kimbrow’s having “a more positive

personal disposition” and Kimbrow’s being “more outgoing and personally

engaging.” If Director Paniagua had explained, for instance, that

Kimbrow made a better impression because “he maintained eye contact

during the interview,” or “had a firmer handshake,” or “was more

articulate in his answers (and perhaps gave some examples)”; that

Kimbrow exhibited the trait of good judgment “by his answer to the

following question I had posed where Cummings did not”; that Kimbrow

“possessed the following experience that is better suited for the

deputy-marshal position than Cummings’s police experience”; and that

Kimbrow seemed more outgoing because “he offered more than just

“yes/no” responses to questions,” she might have provided the

sufficient detail necessary to force Cummings to establish pretext.

See Patrick, 394 F.3d at 317 (holding explanation that plaintiff was

“not sufficiently suited” for the position without more failed to

satisfy burden of proffering a legitimate reason for adverse employment

action). But in the face of the City’s vague and amorphous statements,

the Court concludes that the City has failed to meet its burden of

providing a legitimate, nondiscriminatory reason for not selecting

Cummings for the deputy-marshal position because “neither [the Court]

nor [Cummings] can identify the kind of evidence needed to demonstrate
38

that such . . . rank generalization[s] [are] or [are] not pretextual.”

Id. The City’s reasons amount to nothing more than “content-less

and nonspecific” statements. Id. 

Moreover, the City’s explanations do not necessarily connote

a nondiscriminatory reason. After all, Director Paniagua’s subjective

belief that Kimbrow made a better impression in the interview could

have been because Cummings had indicated that he planned on filing

a complaint for disability discrimination. One of Kimbrow’s traits

could have been that he was not regarded as being disabled or that

he would not file a complaint if he thought he had been unlawfully

discriminated against. And she may have found Kimbrow to be better

suited because he didn’t engage in a protected activity. The City’s

proffered reasons are essentially non-reasons for the purposes of

a discrimination defense. See Id. 

Because the City has failed to meet its burden of proffering

a legitimate, nondiscriminatory reason for its adverse employment

action against Cummings, the presumption of retaliation established

when Cummings made his prima facie case stands. See Id. at 316.

Therefore, Cummings is not required at this juncture to adduce evidence

establishing that the City’s proffered reasons are pretext and that

“but for” his complaining of Chief Windham’s alleged disability

discrimination, he would have been selected for the deputy-marshal

position over Kimbrow. Accordingly, the Court concludes that there

is a genuine issue of material fact as to whether the City unlawfully
39

retaliated against Cummings by selecting Kimbrow over Cummings for

the deputy-marshal position because Cummings opposed Chief Windham’s

disability discrimination.

III. Conclusion

For the foregoing reasons, the City’s summary-judgment motion

is PARTIALLY GRANTED AND PARTIALLY DENIED. The City’s motion is

GRANTED in that Cummings’s claim that the City unlawfully discriminated

against him on the basis of him having a record of disability is

dismissed because he failed to properly plead that basis in his

complaint. In all other aspects, the City’s motion is DENIED. 

SIGNED January 30, 2008.