## F I L E D United States Court of Appeals Tenth Circuit 

### APR 6 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

WILLIAM ADRIAN BUTLER, Plaintiff - Appellant,

v. No. 97-3291 CITY OF PRAIRIE VILLAGE, KANSAS; H. MONROE TALIAFERRO, JR., Mayor; BARBARA J. VERNON, City Administrator; CAROL PENDLETON, Chairman of Policy and Services Committee; JERALD R. ROBNETT, former Director of Public Works Department, Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 96-2045-JWL)
B. Kay Huff, Lawrence, Kansas, for Plaintiff-Appell ant. Mark D. Katz of Sherman, Taff & Bangert, P.C., Kans as City, Missouri, and David W. Hauber of Boddington & Brown Chartered, Kansas City, Kansas, for Defendants-Appellees.

_________________________ Before HENRY , McKAY , and BRISCOE , Circuit Judges.

_________________________-2-

McKAY , Circuit Judge.

_________________________

Plaintiff-Appellant William Adrian Butler appeals f rom a dismissal pursuant to Rule 12(c) of the Federal Rules of Civi l Procedure and a grant of summary judgment entered in favor of Defendants-App ellees by the United States District Court for the District of Kansas. Plainti ff was an employee of Defendant City of Prairie Village, Kansas. All of the indivi dual defendants were employed by, or otherwise connected with, the City during th e time period relevant to this dispute. Defendant H. Monroe Taliaferro, Jr., was the Mayor; Defendant Barbara J. Vernon was the City Administrator; Defendant Car ol Pendelton was a member of the city council and chair of the Policy and Services Committee; and Defendant Jerald R. Robnett was the director of the Public Wo rks Department. During his employment with the City, Plaintiff test ified at an arbitration hearing involving a dispute between the City and on e of its contractors, and he reported rumors of employee thefts to his superviso rs. After approximately five and one-half years of employment with the City, Pla intiff announced that he suffered from severe clinical depression and reques ted permission to work only forty hours per week. Pursuant to a reorganizationof his department, Plaintiff’s employment was terminated on January 27, 1994, appr oximately one year after-3-

testifying at the arbitration, one to four months a fter reporting the employee thefts, and seven months after requesting the accom modation to his work schedule. Several months after the reorganization, the City created a new position in Plaintiff’s former department. The duties, qual ifications, and salary range of the new position were similar to those of Plaintiff’s former position. In this appeal, Plaintiff raises four issues. Firs t, he contends that the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213, does not preclude personal capacity suits against individual supervisors. Second, Plaintiff claims that the district court should not have ente red summary judgment in favor of Defendants on his claims that he was terminated in violation of the First Amendment. Third, he argues that summary judgment was improper on his ADA claim of discrimination because he has raised genui ne issues of material fact. Fourth, Plaintiff contends that the district court erroneously entered summary judgment in favor of the defendants on his ADA reta liation claim.

I. The City hired Plaintiff as an assistant director i n its Public Works Department in September 1987. Plaintiff’s duties i ncluded planning and organizing construction and maintenance of storm dr ainage systems and open water courses; planning and implementing training p rograms for employees;-4-

preparing reports; attending city council meetings and coordinating activities with committees and commissions; serving as a liaison be tween residents, consulting engineers, and contractors; developing, managing, a nd reporting results of programs for the annual budget; carrying out city a nd departmental policies; assisting director with preparation of committee ag enda; preparing applicable job performance evaluations and related documentation; developing and obtaining cost estimates for construction of city facilities; planning procedures and reporting results of traffic safety control policy and procedures; monitoring communication systems; managing excavation stormwat er management permit systems; providing recommendations for street light ing petitions and ensuring that installations and changes conform to policy; develo ping and completing street light work orders; arranging Kansas Department of T ransportation bridge inspections; monitoring use of personal computers and software; obtaining easements; and serving as a liaison for projects in volving federal funding. See R., Vol. 5 at 17-19. During his employment with the City, two incidents occurred which Plaintiff claims are relevant to this dispute. In 1992, a city mechanic told Plaintiff about some disappearing police tires. Pl aintiff alleges that he encouraged the mechanic to report the thefts. Howe ver, he also alleges that he reported the missing inventory to Mr. Robnett on a number of occasions during-5-

staff meetings in the fall of 1993. Additionally, Plaintiff claims that he told Ms. Vernon about the missing inventory twice during the fall of 1993. Neither Mr. Robnett nor Ms. Vernon recalls Plaintiff telling th em about the disappearing inventory. The second incident occurred in October or November1992, when Plaintiff testified under oath at an arbitration hearing betw een the City and one of its contractors. Plaintiff’s testimony was not favorab le to the City and, in December 1992, the arbitrator granted the contractor a subst antial monetary award. At a staff meeting following the arbitration award, seve ral city officials, including Mr. Robnett, Ms. Vernon, and Mayor Taliaferro, expresse d their disappointment about the outcome of the arbitration. Mr. Robnett mentio ned the outcome of the arbitration to Plaintiff on a later occasion, to wh ich Plaintiff allegedly responded with a dry grin and stated, “Yes, I understand thatis the case.” Id. , Vol. 1, Robnett Dep. at 71-72. Mr. Robnett took Plaintiff’ s response to mean that Plaintiff was encouraged by the outcome of the arbi tration. Apart from this exchange with Mr. Robnett, there is no evidence ind icating that any of the individual defendants were aware of the substance o f Plaintiff’s testimony. Up until the spring of 1993, Plaintiff’s work perfo rmance seems to have been satisfactory. In fact, Plaintiff received wag e increases in 1991, 1992, and 1993, pursuant to the City’s merit-based wage progr am. Additionally, on-6-

December 23, 1992, Mr. Robnett, who was the directo r of the Public Works Department at the time, gave Plaintiff a written pe rformance evaluation. The evaluation form contained twenty different categori es in which to rate employees. Mr. Robnett rated Plaintiff as “exceeds expectation s” in seven categories, as “meets expectations” in five categories, and as “improvement needed” in five categories. Pl.’s App., Vol. I, Doc. 7, Ex. B. Th e remaining three categories were not applicable to Plaintiff. See id. In March or April 1993, Plaintiff told Mr. Robnett that he suffered from severe clinical depression. In May 1993, he gave M r. Robnett a letter from his psychologist, Dr. Lee Forge, which indicated that P laintiff generally should not work more than forty hours per week because doing s o would cause him stress and decrease his productivity. After receiving the letter, Mr. Robnett met with Plaintiff weekly to review his work. He also took on some of Plaintiff’s work to ensure its timely completion. After Plaintiff requ ested a reduced work schedule to accommodate his depression, Mr. Robnett repeated ly told Plaintiff that Mr. Robnett was “drowning in the work assignments” and that Plaintiff was not “holding up his end of what needed to be done.” R. , Vol. 1, Robnett Dep. at 60. Mr. Robnett also testified that Plaintiff’s work pe rformance deteriorated during
1993. When Mr. Robnett left his position as director of t he Department of Public-7-

Works in September 1993, Ms. Vernon became acting d irector. Shortly after she began working in this capacity, Ms. Vernon met withPlaintiff to discuss his work load. Plaintiff told Ms. Vernon that he had more w ork than he could successfully complete and asked her to take over some of his con tracts because she previously had dealt with those specific contractors. Ms. Vernon agreed to do so. During Ms. Vernon’s tenure, Plaintiff never worked more than forty hours a week. Despite this apparent accommodation, it appe ars from the record that tension developed between Plaintiff and Ms. Vernon. This tension seems to have resulted, at least in part, from Plaintiff’s belief that Ms. Vernon was targeting him by giving him short deadlines, too much work, and t oo little secretarial assistance. Moreover, Plaintiff allegedly failed to communicate his work activities to Ms. Vernon, which made it difficult for her to monitor his work. Ms. Vernon also questioned whether Plaintiff was spending his time on the work that he had been assigned or on unrelated matters. In addition, Pla intiff allegedly told Ms. Vernon that he did not trust her and began to tape record his meetings with her. Ms. Vernon ultimately determined that Plaintiff was notfulfilling his duties in a timely manner. She attempted to solve the problem by assisting Plaintiff in prioritizing his job duties, but she also assumed c ertain of Plaintiff’s duties herself to ensure their timely completion. During the fall of 1993, Ms. Vernon started discipl ining Plaintiff for his-8-

work habits. On November 30, 1993, she met with Pl aintiff and gave him two written performance evaluations, each of which was prepared on the same evaluation form Mr. Robnett had used to evaluate Pl aintiff in December 1992. Both evaluations indicated that Plaintiff needed improvement in every category listed on the evaluation form. Mr. Robnett had pre pared one of the evaluations, which was dated October 1, 1993; Ms. Vernon had pre pared the other evaluation, which was undated. During the November 30 meeting, Plaintiff allegedly made threatening remarks and engaged in threatening cond uct toward Ms. Vernon. On December 10, 1993, in response to this conduct, Ms. Vernon gave Plaintiff a disciplinary warning and suspended him for two days without pay. At that time, Plaintiff told Ms. Vernon, “I know why you are doin g this now. . . . It’s for testifying in that lawsuit which the city ultimatel y lost.” Id. , Butler Dep. at 87. Plaintiff claims that Ms. Vernon responded to his r emark with laughter, while Ms. Vernon states in her deposition that she felt threatened by Plaintiff. On December 3, 1993, before Ms. Vernon suspended hi m, Plaintiff had sent a complaint to Mayor Taliaferro alleging that Ms. V ernon was harassing him and that her management style had established a hostile , intimidating, and offensive work environment. In response, Mayor Taliaferro se nt a form entitled “Harassment Investigation” to Plaintiff. On January 18, 1994, Plaintiff submitted a lengthy memorandum to Mayor Taliaferro responding to the questions on the1 The record reveals that, between 1991 and 1996, sev en positions were

eliminated and two were reduced from full-time to p art-time. See Pl.’s App., Vol. II, Doc. 17 at 6-7. This means that, including the two assistant director positions, a total of nine positions were eliminated during th at period. -9- form. Although the director of personnel was assig ned to investigate Plaintiff’s complaint, he never interviewed Plaintiff or Ms. Ve rnon. Mayor Taliaferro ultimately concluded that Plaintiff’s claims agains t Ms. Vernon were groundless. Approximately one month after Plaintiff submitted h is complaint regarding Ms. Vernon to Mayor Taliaferro, Ms. Vernon began co ntemplating a reorganization of the Public Works Department. She met with several consultants to discuss the reorganization. Additionally, the r ecord indicates that a former assistant director who left his position in Septemb er 1993 told Ms. Vernon that he thought his position was unnecessary. On January 1 8, 1994, Ms. Vernon announced her reorganization plan at a meeting of t he city council. Ms. Vernon’s plan eliminated the two assistant director position s, even though Plaintiff’s position was the only assistant director position w hich was occupied at that time. The plan also involved hiring a new Public Works Di rector who could perform many of the necessary functions previously performe d by the assistant directors. Of the nine departmental positions eliminated in th e five years prior to 1996, Plaintiff’s position was the only one that was occupied when it was eliminated. 1 As a consequence of Ms. Vernon’s reorganization plan, Plaintiff received a hand--10-

delivered letter from Ms. Vernon on January 27, 199 4, informing him that his position had been eliminated. Several months after Ms. Vernon’s reorganization of the Public Works Department was implemented, a new position entitled“Project Coordinator” was created in the department. The duties of the proje ct coordinator include, but are not limited to, the following: planning and organi zing the administration of utility and contract construction; performing admin istrative duties; interacting with community groups, residents, and other governm ental groups; assisting the department director; and organizing projects and pr eparing special reports. Like the former assistant directors, the project coordin ator reports to the Public Works Director. After Plaintiff was terminated, he filed administrative charges with the Equal Employment Opportunity Commission alleging th at the City had discriminated against him in violation of the ADA a nd the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634. Plaintiff co mmenced this action in January 1996, and the EEOC issued him a right-to-su e letter on March 13, 1996. The district court dismissed several of Plaintiff’s claims pursuant to Defendants’ motion under Rule 12(c) of the Federal Rules of Civ il Procedure. See Butler v. City of Prairie Village , 961 F. Supp. 1470 (D. Kan. 1997). The same court subsequently entered summary judgment in favor of D efendants on Plaintiff’s2 We note that the district court dismissed this issu e in response to

Defendants’ Rule 12(c) motion to dismiss. See Butler , 961 F. Supp at 1475. -11- remaining claims. See Butler v. City of Prairie Village , 974 F. Supp. 1386 (D. Kan. 1997).

II. Our disposition of Plaintiff’s individual liabilityargument determines whether the individual defendants named in this act ion may be held liable for his ADA discrimination and retaliation claims. Because the issue of whether individual supervisors may incur liability under th e ADA is a purely legal question, we review the district court’s dismissal of this claim de novo. 2 See Haynes v. Williams , 88 F.3d 898, 899 (10th Cir. 1996). In dismissing Plaintiff’s argument that individual supervisors may be held liable under the ADA, the district court “conclude[ d] that the Tenth Circuit would reject the notion of supervisor liability under the ADA.” Butler , 961 F. Supp. at 1475. While we have not previously addressed this precise question with respect to the ADA, we have answered this question in conne ction with Title VII. In 1996, this court reiterated its established rule th at “personal capacity suits against individual supervisors are inappropriate under Titl e VII.” Haynes , 88 F.3d at 901; see also Sauers v. Salt Lake County , 1 F.3d 1122, 1125 (10th Cir. 1993)-12-

(“Under Title VII, suits against individuals must p roceed in their official capacity; individual capacity suits are inappropriate.”). In support of its holding that Title VII precludes individual supervisor liability, the Haynes panel recognized that the “‘employment discriminat ion statutes have broad remedial purposes and should be interpreted liberally, but that cannot trump the narrow, focused conclusion we drawfrom the structure and logic of the statutes.’” Haynes , 88 F.3d at 901 (quoting EEOC v. AIC Sec. Investigations, Ltd. , 55 F.3d 1276, 1282 (7th Cir. 1995)). As the Seve nth Circuit explained, “[a] liberal construction does not mean one that flies in the face of the structure of the statute.” AIC Sec. Investigations , 55 F.3d at 1282 (holding that individuals who do not otherwise meet the statutorydefinition of employer cannot be held liable under the ADA). These explanations are equally applicable to the structure and logic of the ADA. While the ADA’s re medial purposes are broad and far-reaching, the statute imposes liability onl y on a specifically defined class of persons. Limiting liability to employers with f ifteen or more employees strikes “a balance between the goal of stamping out all dis crimination and the goal of protecting small entities from the hardship of liti gating discrimination claims.” Id. at 1281; see also Birkbeck v. Marvel Lighting Corp. , 30 F.3d 507, 510 (4th Cir.) (“The purpose of this provision [limiting liability to employers with at least fifteen employees] can only be to reduce the burden of the ADEA on small3 Each of these acts also prohibits discrimination byemployment agencies

and labor organizations. See 42 U.S.C. § 12111(2) (ADA); id. § 2000e-2(b)-(d) (Title VII); 29 U.S.C. § 623(b)-(c) (ADEA). -13- businesses.”), cert. denied , 513 U.S. 1058 (1994). The ADA, Title VII, and the ADEA all prohibit discr imination by employers on a variety of grounds. 3 See 42 U.S.C. §§ 12111(2) & 12112 (ADA); id. § 2000e-2(a) (Title VII); 29 U.S.C. § 623(a) (ADEA ). Similarly to Title VII and the ADEA, the ADA defines “employer” as “a pers on engaged in an industry affecting commerce who has 15 or more employees . . . , and any agent of such person.” 42 U.S.C. § 12111(5)(A); cf. id. § 2000e(b); 29 U.S.C. § 630(b). Because we can discern no meaningful distinction be tween the definitions of “employer” in Title VII and the ADA, our reasoning in Haynes dictates the outcome of this case. Cf. Finley v. United States , 82 F.3d 966, 974 (10th Cir. 1996); United States v. Spedalieri , 910 F.2d 707, 709 n.2 (10th Cir. 1990). Accordingly, we now hold that the ADA precludes per sonal capacity suits against individuals who do not otherwise qualify as employe rs under the statutory definition. Not only is our position consistent wi th the majority of federal circuit and district courts that have considered the issue of individual supervisor liability under Title VII and the ADEA, see, e.g. , Wathen v. General Elec. Co. , 115 F.3d 400, 405 (6th Cir. 1997) (Title VII); Williams v. B anning , 72 F.3d 552, 555 (7th Cir. 1995) (Title VII); Tomka v. Seiler Corp. , 66 F.3d 1295, 1314 (2d Cir. 1995)-14-

(Title VII); Smith v. Lomax , 45 F.3d 402, 403 n.4 (11th Cir. 1995) (Title VII and ADEA); Birkbeck , 30 F.3d at 511 (ADEA); Grant v. Lone Star Co. , 21 F.3d 649, 653 (5th Cir.) (Title VII), cert. denied , 513 U.S. 1015 (1994); Miller v. Maxwell’s Int’l, Inc. , 991 F.2d 583, 587-88 (9th Cir. 1993) (Title VII and ADEA), cert. deniedsub nomMiller v. LaRosa , 510 U.S. 1109 (1994), but it is also in accordance with the only circuit courts that have d irectly addressed the issue of individual liability under the ADA. See Mason v. Stallings , 82 F.3d 1007, 1009 (11th Cir. 1996); AIC Sec. Investigations , 55 F.3d at 1282. As a result of our holding, the individual defendants named in this ac tion may not be held liable for discrimination or retaliation in violation of the A DA.

III. The district court disposed of Plaintiff’s remainin g claims on summary judgment. See Butler , 974 F. Supp. 1408. We review the grant or denial of summary judgment de novo, and we apply the same leg al standard employed by the district court pursuant to Federal Rule of Civi l Procedure 56(c). See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Summary jud gment is appropriate only when “the pleadings, depositions, answers to i nterrogatories, 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 e ntitled to a judgment as a matter-15-

of law.” Fed. R. Civ. P. 56(c). “‘When applying t his standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. If there is n o genuine issue of material fact in dispute, then we next determine if the subs tantive law was correctly applied by the district court.’” Kaul , 83 F.3d at 1212 (quoting Wolf v. Prudential Ins. Co. of Am. , 50 F.3d 793, 796 (10th Cir. 1995)).

A. In his complaint, Plaintiff alleged that Defendants violated his First Amendment rights by terminating him for reporting e mployee thefts and for providing truthful testimony at an arbitration hear ing involving a dispute between the City and one of its contractors. In response t o this claim, the individual defendants asserted the defenses of absolute and qu alified immunity. Although the district court was unable to determine in what capacities the individual defendants were operating when the decision to term inate Plaintiff was made, the court noted that it “is highly doubtful that absolu te immunity applies to an individual municipal administrator’s decision to re organize her department without approval from a governing body.” Butler , 974 F. Supp. at 1397. As a result, the court denied the individual defendants’ motion for summary judgment as to absolute immunity. See id. The court then analyzed the question of-16-

qualified immunity and concluded that the individua l defendants were entitled to qualified immunity on Plaintiff’s First Amendment c laims. See id. at 1397-98. Plaintiff contends that the district court erred in determining that Defendants were entitled to qualified immunity. The doctrine of qualified immunity shields individu al government officials performing discretionary functions “‘from liabilityfor civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” T onkovich v. Kansas Bd. of Regents , 159 F.3d 504, 516 (10th Cir. 1998) (citations omi tted); see also Gehl Group v. Koby , 63 F.3d 1528, 1533 (10th Cir. 1995). To analyze this issue, we must first determine “whether the plaintiff has suf ficiently alleged that the defendant violated a statutory or constitutional ri ght.” Tonkovich , 159 F.3d at 516. If the plaintiff has asserted such a deprivat ion, only then do we inquire “whether the right was clearly established such that a reasonable person in the defendant’s position would have known that his or h er conduct violated that right.” Id. ; see also Koby , 63 F.3d at 1533 (“Where a plaintiff fails to demonstrate that a defendant’s conduct violated the law, we need not reach the issue of whether the law was clearly established.”) . To show that a law is clearly established, generally “there must be a Supreme Cou rt or Tenth Circuit decision on point, or the clearly established weight of auth ority from other courts must-17-

have found the law to be as the plaintiff maintains .’” Tonkovich , 159 F.3d at 516 (quoting Medina v. City & County of Denver , 960 F.2d 1493, 1498 (10th Cir. 1992)). Because this is “an employment retaliation case ass erting a First Amendment right,” our analysis of whether Plaintiff has sufficiently alleged that Defendants violated his constitutional rights invol ves four steps. Bisbee v. Bey , 39 F.3d 1096, 1100 (10th Cir. 1994), cert. denied , 515 U.S. 1142 (1995). First, we must “determine [whether] the employee’s speech involve[d] a matter of public concern.” Id. Second, we “must ‘balance the interests of the employee in making the statement against the public employer’s interests in the effective and efficient fulfillment of its responsibilities to th e public.’” Id. (citation omitted). Third, if the balance “tips in favor of the plainti ff, then he must show ‘that the protected speech was a “motivating factor” in the d ecision.’” Id. (citations omitted). Finally, if the employee makes this show ing, “‘the burden then shifts to the employer to show by a preponderance of evidence that it would have reached the same decision in the absence of the protected a ctivity.’” Id. (citation omitted). Plaintiff cannot meet the first prong of the qualif ied immunity standard because he cannot satisfy all four factors as to ei ther of his First Amendment claims, which he must do to prevail. With respect to Plaintiff’s claim that he was-18-

fired for reporting employee thefts, we note that a lthough this speech was constitutionally protected because it involved a matter of public concern, see Bisbee , 39 F.3d at 1100, Plaintiff has not established th at the speech was a motivating factor in his termination. The mere temporal proximity of Plaintiff’s protected speech to his termination is insufficient , without more, to establish retaliatory motive. See Marx v. Schnuck Mkts, Inc. , 76 F.3d 324, 329 (10th Cir.), cert. denied , 518 U.S. 1019 (1996); Love v. Re/Max of Am., Inc. , 738 F.2d 383, 386 (10th Cir. 1984). In addition, Plaintiff’s all eged statements regarding the thefts did not implicate any of the individual defe ndants named in this action, which implies that none of them had any motivation for retaliating against him for reporting the thefts. It is also noteworthy that t he employee who told Plaintiff about the thefts and who reported the thefts to dep artmental supervisors was later named employee of the year. At the very least, thi s fact suggests that Plaintiff probably would not have been punished for reporting the thefts. Because Plaintiff has not established that his report of employee the fts was a motivating factor in his termination, he cannot show that a deprivation of his First Amendment rights has occurred. We therefore agree with the districtcourt that the individual defendants are entitled to qualified immunity on Pl aintiff’s claim that he was terminated in retaliation for reporting employee th efts. Similarly, because Plaintiff has not sufficiently a lleged the violation of a-19-

constitutional right, he cannot meet the first pron g of the qualified immunity standard on his claim involving his arbitration tes timony. Applying the four-step analysis for determining whether Plaintiff has suff iciently alleged a First Amendment violation, we note that neither the Supre me Court nor this circuit has held that arbitration testimony is speech involving a matter of public concern. However, this case does not require us to reach that issue. Even assuming that Plaintiff’s testimony involved a matter of public c oncern, he has not satisfied the third factor of the test because he has not shown t hat his testimony was a motivating factor in his termination. Plaintiff has offered only doubtful and inconclusiv e evidence in support of his allegation that Defendants fired him for testif ying at the arbitration. For example, Plaintiff contends that various city offic ials’ disappointment with the outcome of the arbitration, which was unfavorable t o the City, demonstrates that his termination was connected to his testimony. Pl aintiff also seems to argue that Mr. Robnett’s remark about the arbitration to Plaintiff and his subsequent statement that Plaintiff seemed encouraged by the o utcome of the arbitration somehow indicate that Defendants were angered by, o r upset about, Plaintiff’s testimony. Further, Plaintiff contends that Ms. Ve rnon’s laugh in response to his statement to her that he was being disciplined for his testimony shows that she retaliated against him for testifying at the arbitr ation. Each of these incidents is4 Because Plaintiff has not sufficiently alleged a co nstitutional violation on

either of his First Amendment claims, we need not a ddress the second prong of the qualified immunity standard, i.e. whether the c onstitutional right implicated by Plaintiff’s claims is clearly established. See Koby , 63 F.3d at 1533. -20- ambiguous at best, and they simply do not demonstrate that Plaintiff’s arbitration testimony was a motivating factor in his terminatio n. Additionally, there is no evidence indicating that any of the individual defe ndants knew the content of Plaintiff’s testimony, tried to prevent him from te stifying, or made any specific remarks concerning his testimony. In fact, the rec ord indicates that Plaintiff was not punished after testifying; instead, he received a merit-based pay increase shortly after he testified at the arbitration heari ng. Plaintiff has failed to show that his testimony was a motivating factor in his t ermination and thus has failed to make the required threshold showing that any of the individual defendants violated his constitutional rights. As a result, w e agree with the district court that the individual defendants are entitled to qualified immunity on Plaintiff’s claim that he was terminated in retaliation for his arbit ration testimony. 4
Because our conclusion that the individual defendants are entitled to qualified immunity rests on the determination that none of them violated Plaintiff’s constitutional rights, the City may notbe found to have violated his rights. See Wilson v. Meeks , 98 F.3d 1247, 1255 (10th Cir. 1996) (explaining that where individual defendants committed no const itutional violation, municipal5 By contrast, “[i]f the employer admits that the dis ability played a

prominent part in the decision, or the plaintiff ha s other direct evidence of discrimination based on disability, the burden-shif ting framework may be unnecessary and inappropriate.” Morgan , 108 F.3d at 1323 n.3. -21- liability may not be imposed); Hinton v. City of El wood, Kan. , 997 F.2d 774, 782 (10th Cir. 1993) (“A municipality may not be held l iable where there was no underlying constitutional violation by any of its o fficers.”). We conclude that the district court properly entered summary judgment infavor of the individual defendants and the City on Plaintiff’s First Amendm ent claims.

B. Plaintiff also argues that the district court erred in holding that he did not establish a prima facie case of discrimination unde r the ADA because he failed to produce evidence indicating that he was treated dif ferently than similarly situated individuals without disabilities. See Butler , 974 F. Supp. at 1401. ADA cases without direct evidence of discrimination generallyare evaluated under the burden-shifting framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997). The McDonnell Douglas analysis is particularly appropriate where, as in this case, “the employer disclaims reliance on the plaintiff’s disability for an employment decision.” 5 Id. at 1323 n.3 (citing White v. York Int’l Corp. , 45 F.3d6 We do not address the ample evidence describing Pla intiff’s psychological

condition because the district court implicitly ass umed that, for purposes of establishing a prima facie case of discrimination, Plaintiff qualified as a disabled person within the meaning of the ADA. Defendants h ave not challenged this assumption on appeal. -22- 357, 361 n.6 (10th Cir. 1995)); accordRunnebaum v. NationsBank of Md., N.A. , 123 F.3d 156, 164 (4th Cir. 1997); Ennis v. Nationa l Ass’n of Bus. & Educ. Radio, Inc. , 53 F.3d 55, 57-58 (4th Cir. 1995). Under McDonnell Douglas , the plaintiff bears the initial burden of establishing a prima facie case by a preponderance of the evidence. See McDonnell Douglas , 411 U.S. at 802. Once the plaintiff has establis hed a prima facie case, a rebuttable presumption of unlawful di scrimination arises. See St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 506 (1993). The defendant then bea rs the burden of producing a legitimate, nondiscriminatory reason for the adverse employment decision. See McDonnell Douglas , 411 U.S. at 802. If the defendant is able to articulate a valid reason, the plaintiff has the opportunity to prove that the defendant’s stated reason “was in fact pretext. ” Id. at 804. At all times, the plaintiff bears the ultimate burden of proving disc rimination. See Hicks , 509 U.S. at 508, 515-16. To establish a prima facie case of discrimination u nder the ADA, Plaintiff must demonstrate “(1) that he is ‘disabled’ within the meaning of the ADA, 67 Because Defendants have not challenged whether Plai ntiff is qualified on

appeal, we do not address this issue.

8 The final prong of the prima facie case differs som ewhat for reduction-in-force cases filed under the Age Discri mination in Employment Act, 29 U.S.C. §§ 621-634, because frequently the plaint iffs are laid off and are unable to prove actual replacement by younger employees. See Beaird v. Seagate Tech., Inc. , 145 F.3d 1159, 1166 (10th Cir.) (explaining that fourth prong in reduction- -23- (2) that he is qualified—with or without reasonable accommodation; 7and (3) that he was discriminated against because of his disabil ity.” Siemon v. AT&T Corp. , 117 F.3d 1173, 1175 (10th Cir. 1997); see also Aldrich v. Boeing Co. , 146 F.3d 1265, 1269 (10th Cir.), petition for cert. filed , 67 U.S.L.W. 3376 (U.S. Nov. 23, 1998) (No. 98-859); Morgan , 108 F.3d at 1323; White , 45 F.3d at 360-61. In this case, the district court addressed only the third e lement of the prima facie case, which requires the plaintiff to come forth with evi dence showing that the adverse employment decision was because of his disability. The district court found that Plaintiff “fail[ed] to point to any evidence indicating that Defendant City of Prairie Village terminated him due to his alleged d isability.” Butler , 974 F. Supp.
at 1401. We begin our analysis with a close examination of t he third prong of the prima facie case. The final element of a prima fac ie case of disability discrimination is distinct from the parallel requir ement in cases involving race, gender, or age, which calls for a showing that the plaintiff was replaced by a person outside of the protected class. 8 See Ennis , 53 F.3d at 58. Unlike manyin-force cases requires plaintiff to introduce circ umstantial or direct evidence

from which a finder of fact might reasonably infer intentional discrimination), cert. denied , __ U.S. __, 119 S. Ct. 617 (1998); Branson v. Pri ce River Coal Co. , 853 F.2d 768, 771 (10th Cir. 1988) (“Courts have mo dified the fourth prima facie element [in reduction-in-force cases] by requiring the plaintiff to ‘produc[e] evidence, circumstantial or direct, from which a fa ctfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.” (citation omitted)). The final prong “may be established through circumstantial evidence that the plaintiff was treated less favorably than younger employees during the reduction-in-force.” Branson , 853 F.2d at 771. -24- race, gender, or age discrimination plaintiffs, “th e [ADA] plaintiff [often] . . . will be unable to determine whether areplacement employee is within or without the protected class,” and “even if the p laintiff could obtain such information, requiring a showing that the replaceme nt was outside the protected class would lead to the dismissal of many legitimat e disability discrimination claims.” Id. at 58-59. As a result, to establish the third ele ment of a prima facie case of disability discrimination, the plaintiff mu st show that she was terminated because of her disability, or that the employer ter minated the plaintiff “under circumstances which give rise to an inference that the termination was based on her disability.” Morgan , 108 F.3d at 1323. This showing “requires the pla intiff to present some affirmative evidence that disability was a determining factor in the employer’s decision.” Id. at 1323 (citing Ennis , 53 F.3d at 59). In other words, “[t]he plaintiff must present evidence that, if the trier of fact finds it credible, and the employer remains silent, she woul d be entitled to judgment as a9 We note that Plaintiff did not appeal the dismissal of his claim that

Defendants failed to accommodate his disability in violation of the ADA. -25- matter of law.” Id. at 1324 (citing Ennis , 53 F.3d at 59). “This formulation [of the third prong] should not be interpreted as dimin ishing the plaintiff’s burden in proving her prima facie case. While the burden is ‘not onerous,’ it is al so not empty or perfunctory.” Ennis , 53 F.3d at 59 (internal citation omitted). After thoroughly reviewing the record and construin g the evidence in a light most favorable to Plaintiff, see Kaul , 83 F.3d at 1212, we conclude that the district court erred in finding that Plaintiff fail ed to make out a prima facie case of discrimination. Admittedly, there is no direct evidence in the record that the performance evaluations by Plaintiff’s supervisors or the disciplinary measures taken against him were related to his alleged disab ility, nor is there evidence that his supervisors made any comments or remarks about his disability. However, the record indicates that Plaintiff’s supervisors’ eval uations of his work declined soon after Plaintiff announced his disability and r equested an accommodation. The record also shows that after Plaintiff requeste d an accommodation, Mr. Robnett and Ms. Vernon both made comments abouthis inability to complete his work in a timely manner. 9 The temporal proximity of Plaintiff’s request foran accommodation to the decline in his work evaluation s and his supervisors’ complaints about his work performance contributes t o an inference that Plaintiff’s-26-

position was eliminated because of his disability. See Chambers v. TRM Copy Ctrs. Corp. , 43 F.3d 29, 37 (2d Cir. 1994) (stating that the s equence of events leading to a discharge may contribute to a permissi ble inference of discriminatory intent). In addition to this circumstantial evidence, the re cord contains evidence of disparate treatment. Specifically, at the time Ms. Vernon eliminated the two assistant director positions, only Plaintiff’s posi tion was occupied. The other assistant director position had been unoccupied forseveral months. Further, out of the nine positions eliminated in the five years prior to 1996, Plaintiff’s position was the only one that was occupied when it was elim inated. That is, apart from Plaintiff, no other City employee lost his or her j ob as a result of a departmental reorganization. Additionally, Plaintiff’s complaint of harassment a gainst Ms. Vernon was investigated differently than similar claims assert ed by other employees. Plaintiff’s complaint, which he delivered to Mayor Taliaferro after Ms. Vernon gave Plaintiff his unfavorable performance report, alleged that he was “harassed, intimidated, isolated from other employees, and wri tten up with disciplinary warnings, repeatedly, with the express purpose of r emoving [him] from [his] position.” Pl.’s App., Vol. II, Doc. 18 at 1. May or Taliaferro immediately passed Plaintiff’s complaint along to Ms. Vernon. Because the complaint alleged that-27-

Ms. Vernon was harassing Plaintiff, the director of personnel, who was a subordinate of Ms. Vernon, was assigned to investig ate Plaintiff’s complaint. There is no indication that the personnel director investigated Plaintiff’s complaint, and neither Plaintiff nor Ms. Vernon was interviewed about the allegations contained in the complaint. In fact, w hen asked in discovery to produce “[a]ny documents prepared in the course of or as part of the investigation . . . of the internal complaint(s) of harassment [P laintiff] lodged against Barbara Vernon on or about December 3, 1993 and on or aboutJanuary 18, 1994,” the City responded: “Defendant has no documents respon sive to this request.” Id. , Doc. 20 at 2. Mayor Taliaferro also did not person ally investigate Plaintiff’s allegations. However, Mayor Taliaferro wrote Plaintiff a letter in which he concluded that “there are no facts documented that would prove harassment of you by Barbara Vernon.” Id. , Doc. 19. Plaintiff presented evidence that other employee ha rassment complaints were handled in a more thorough and systematic fash ion. Other complaining employees and their alleged harassers were intervie wed. Acting as the investigator, Ms. Vernon also made extensive notes about the incidents and sometimes drafted formal reports summarizing her fi ndings and conclusions. In fact, Ms. Vernon testified in her deposition that t he “standard method or procedure” for handling a harassment complaint is t o interview the persons-28-

involved in or who might have knowledge about the a lleged incidents. See id. , Vol. I, Vernon Dep. at 13-14. In combination with the evidence showing that Plaintiff’s work evaluations declined and his supervisors began complaining about his work, this evidence of disparate treatment permits a reasonable inference of discrimination based on disability, wh ich satisfies the third element of Plaintiff’s prima facie case. Because we have concluded that Plaintiff set forth a prima facie case of discrimination under the ADA, we must examine wheth er the City proffered a legitimate, nondiscriminatory reason for its decisi on to terminate Plaintiff’s employment. Once a defendant articulates a legitim ate reason, “the plaintiff’s burden is only to demonstrate a genuine dispute of material fact as to whether the proffered reasons were unworthy of belief.” Morgan , 108 F.3d at 1321. “To avoid summary judgment, a plaintiff need not demons trate that discriminatory reasons motivated the employer’s decision.” Id. at 1321-22. In this case, the City claims that it terminated Plaintiff as a result of its decision to reorganize the department in which Plaintiff was employed. In res ponse to the City’s proffered reason, Plaintiff asserts that the departmental reo rganization was merely a pretext for firing him on the basis of his disability. Viewing the facts in a light most favorable to Plai ntiff, we conclude that he has alleged sufficient facts to establish genuine i ssues of material fact on whether-29-

the City’s reason for terminating him was pretextua l. Notably, the record reflects that nine months after Ms. Vernon reorganized the P ublic Works Department and eliminated Plaintiff’s position, a new position ent itled “Project Coordinator” was created in the department. Although more detailed factual development is needed on this point, the record shows that the duties forwhich the project coordinator is responsible appear substantially to overlap the dut ies for which Plaintiff was responsible as an assistant director. For example, the City admits that at least one of the project coordinator’s central duties was uni que to Plaintiff’s former position, namely planning and administering utilityand contract construction.
See Appellees’ Br. at 32. The City contends that the department director performs most of Plaintiff’s former duties and thatthe descriptions of three of the project coordinator’s duties “are so broad and vagu e that they are meaningless for the purposes of this discussion.” Id. at 32. In our view, however, the broad and vague way in which the project coordinator’s duties are described merely underscores the need for this evidence to be presented to the trier of fact. See Randle v. City of Aurora , 69 F.3d 441, 453 (10th Cir. 1995) (emphasizing th at genuine issues of material fact about the employer’ s motivation in pretext cases are for the trier of fact). Moreover, the qualific ations for the project coordinator and assistant director positions seem to be identic al. Both positions require a college degree in engineering or a related field oran equivalent combination of-30-

formal training and related experience. The salary ranges for the two positions also are similar. The salary range is $2,100 to $3 ,000 per month for the project coordinator position; Plaintiff earned approximatel y $2,500 per month as an assistant director. In short, we think that the re surrection of at least some of Plaintiff’s duties shortly after his termination ina position requiring similar qualifications with a similar salary range sufficie ntly creates a genuine issue of material fact about whether the reason given by the City was pretextual. Cf. Gallo v. Prudential Residential Servs. , 22 F.3d 1219, 1226-27 (2d Cir. 1994) (holding that resurrection of publications for whic h plaintiff was responsible within nine to ten months of her termination and employer’s failure to interview plaintiff for new position created genuine issues o f material fact as to whether reduction-in-force was a pretext for age discrimination). Additional facts also support Plaintiff’s pretext argument. The record shows that after Plaintiff requested to limit his w ork to forty hours per week, he continued to receive more work than he could succes sfully complete in that time period. Both Mr. Robnett and Ms. Vernon complainedabout having to take over some of Plaintiff’s tasks in order to complete the work in a timely fashion. Whether this evidence demonstrates that Plaintiff w as given more work than he could complete in a forty-hour week or that Plainti ff’s work performance was deteriorating is in dispute and, therefore, is also more suitable for determination-31-

by the trier of fact. Nevertheless, we think that, on its face, this evidence contradicts the City’s argument that the reorganization implemented by Ms. Vernon was based on her conclusion that Plaintiff’s position was unnecessary. Ms. Vernon’s allegation that a prior assistant dire ctor told her that he did not believe his position was needed is not to the contr ary because it does not demonstrate that both assistant director positions were unnecessary. In light of this evidence, we conclude that Plainti ff has alleged sufficient facts to establish genuine issues of material fact on whether the reorganization was a pretext for terminating him. Of course, even if Plaintiff succeeds in proving that the reason proffered by the City was p retextual, he still bears the ultimate burden of establishing intentional discrim ination. See Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 253 (1981) (“The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”); McCullough v. Real Foods, Inc. , 140 F.3d 1123, 1128 (8th Cir. 1998) (noting that Supreme Court has “made clear that a plaintiff in a pretext case mustestablish ‘ both that the reason was false, and that discrimination was the real reason’” (citation omitted)). For the foregoing reasons, we hold that summary jud gment in favor of the City was improper on Plaintiff’s ADA discriminationclaim.-32- C. Finally, Plaintiff argues that the district court e rroneously entered summary judgment in favor of the City on his claim of retal iation under the ADA. The district court ruled that, although Plaintiff made out a prima facie case of retaliation and the City came forward with a legiti mate, nondiscriminatory reason for his termination, Plaintiff failed to demonstrat e that the City’s reason was merely a pretext for firing him in retaliation for requesting an accommodation. While the district court correctly concluded that P laintiff failed to recite any evidence demonstrating that the City’s reason for t erminating him was pretextual in his response to the City’s motion for summary ju dgment, see Butler , 974 F. Supp. at 1403, Plaintiff did reference an earlier s ection of his brief, see R., Vol. 4 at 93, in which he presented the basis for his argu ment that the City’s reason was pretextual and that the real reason for his termination was that he was disabled and asked for an accommodation. See id. at 79-86. The ADA expressly prohibits retaliation against ind ividuals who have “opposed any act or practice made unlawful by this chapter or . . . made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203( a); see also id. § 12203(b) (“It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of . . . any right gra nted or protected by this-33-

chapter.”). As with discrimination claims, once th e plaintiff has established a prima facie case of retaliation, the employer has t he burden of coming forth with a legitimate, nondiscriminatory reason for its adve rse action. See Sauers , 1 F.3d at 1128. If the employer does so, the plaintiff may then present evidence that the reason given by the employer is a mere pretext for the real, discriminatory reason for the adverse action. See id. In response to Plaintiff’s retaliation claim, the C ity proffered the same reason for terminating Plaintiff’s employment as itdid in response to his discrimination claim, i.e., Ms. Vernon’s decision t o eliminate Plaintiff’s position pursuant to a reorganization of the Public Works De partment. However, the evidence of pretext supporting Plaintiff’s discrimi nation claim also supports his pretext argument on his retaliation claim. First, the City resurrected most of Plaintiff’s former duties in a new position shortlyafter his termination. Second, after Plaintiff requested an accommodation, he rece ived more work than he could successfully complete and his supervisors complaine d about having too much work because they had to cover for him. Third, Pla intiff’s position was the only one that was eliminated while it was occupied. Additionally, the temporal proximity of certain eve nts during Plaintiff’s employment also supports his pretext argument. Forexample, Ms. Vernon’s decision to reorganize occurred within weeks of Pla intiff’s delivery of a-34-

complaint to Mayor Taliaferro about her supervision . Plaintiff’s work evaluations also declined sharply within months after he told M r. Robnett about his depression and requested an accommodation to his wo rk schedule. This court previously has recognized that “protected conduct c losely followed by adverse action may justify an inference of retaliatory moti ve” even though we have “rejected attempts to unduly stretch the ‘close temporal proximity’ required under this standard.” Marx , 76 F.3d at 329 (reversing summary judgment on pla intiff’s Fair Labor Standards Act retaliation claim) (intern al citations omitted); see also
Love , 738 F.2d at 386 (stating that temporal proximity may justify inference of retaliatory motive and sustaining finding of retali ation under Title VII where termination occurred within two hours of engaging i n protected activity); Burrus v. United Tel. Co. of Kan., Inc. , 683 F.2d 339, 343 (10th Cir.) (noting that protected conduct closely followed by adverse actio n may justify inference of retaliatory motive), cert. denied , 459 U.S. 1071 (1982). The temporal proximity of these events may be insufficient, standing alone , to raise an inference of retaliatory motive. See Marx , 76 F.3d at 329; Love , 738 F.2d at 386. Nevertheless, in combination with the additional ci rcumstantial evidence, this evidence suffices to create genuine issues of mater ial fact as to whether Defendant’s proffered reason for terminating Plaint iff was pretextual. We hold that summary judgment on Plaintiff’s retaliation cl aim in favor of the City was-35-

also erroneous. In sum, we hold that personal capacity suits agains t individuals who do not otherwise qualify as individuals are precluded. We affirm the district court’s entry of summary judgment on Plaintiff’s claims that he was retaliated against in violation of the First Amendment. We reverse the d istrict court’s entry of summary judgment on Plaintiff’s ADA discrimination and retaliation claims and remand for proceedings consistent with this opinion

. AFFIRMED in part, REVERSED in part, andREMANDED

.