Opinion
Civil Action No. 3:99-CV-2153-D
April 3, 2001
MEMORANDUM OPINION AND ORDER
Following an off-duty automobile accident that rendered him a paraplegic, plaintiff Jimmy Johnson ("Johnson"), who held the rank of Driver with defendant City of Dallas' ("the City's") Fire Department ("DFD"), sought reassignment within DFD. After this effort ultimately proved unsuccessful and Johnson took retirement, he sued the City alleging a violation of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, and a pendent state-law fraud claim. The City moves for summary judgment. For the following reasons, the court grants the motion.
I
Johnson worked for DFD as a firefighter from July 15, 1970 until August 15, 1996, when he was involved in an off-duty car accident that left him permanently confined to a wheelchair. This condition rendered him unable to resume his duties as a Driver. As Johnson was completing his rehabilitation in the summer of 1997, DFD Assistant Chief Robert Bailey ("Chief Bailey") offered him a position in recruiting, a job that was compatible with Johnson's physical restrictions. Johnson instead requested a position in the Fire Dispatch Division. Roland Gamez, the then-Deputy Chief over that division, advised Chief Bailey of the requirements for dispatch officers. Although Johnson initially was unable to type fast enough to meet the prerequisite for the dispatch training program, DFD placed him in a limited duty position until he improved his typing skills.
The facts of this case are virtually undisputed. For any factual disputes that do exist, however, the court recounts the evidence favorably to Johnson and draws all reasonable inferences in his favor as the summary judgment nonmovant. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
The dispatch training program, which is four weeks long, involves two stages. Trainees initially learn to take and process emergency calls. After they master telephone procedures, they then learn how to monitor emergency response units to those calls via radio. Johnson was evaluated weekly during the telephone training. His second evaluation, dated October 24, 1997, rated him "unacceptable" or "below average" in nine of twelve areas. The third and fourth evaluations rated him as "unacceptable" or "below average" in eight areas of twelve areas. As a result of this unsatisfactory performance on the telephone, he never moved to the radio training and was unable to assume a position as a dispatch officer.
A review of DFD's divisions indicated that Johnson was not qualified for any of the available positions. The recruiting position that DFD offered him before he opted for dispatcher training was no longer available. The only open position in that office was for a Captain, a rank that was several steps above Johnson's rank as a Driver. He therefore retired from DFD effective November 11, 1997 and began receiving a disability pension on November 12, 1997. Johnson then filed this suit against the City.
II
Johnson alleges that the City violated the Rehabilitation Act by failing and refusing to reasonably accommodate him, failing to train him for, or to place him in, the position as alarm response officer, and by failing to offer him any other position for which he was qualified. The City argues that it is entitled to summary judgment on both the discrimination and reasonable accommodation claims.
A
Because the City does not rely on Johnson's physical restrictions, the burden shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), governs the court's analysis of his discrimination claim. See Barth v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1993); Florence v. Runyon, 990 F. Supp. 485, 494 (N.D. Tex. 1997) (Boyle, J.), opinion adopted, id. at 498 (Fitzwater, J.), a ff'd, 208 F.3d 1006 (5th Cir. 2000) (table) (per curiam). Under this burden shifting framework, Johnson first must establish a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Once he meets this burden, the City is obligated to produce a legitimate, nondiscriminatory reason for the employment decision at issue. See id. This is a burden of production, not persuasion, and involves no credibility assessment. See id. If the City meets this production burden, the presumption of discrimination disappears. Id. Johnson must prove by a preponderance of the evidence that the legitimate reasons offered are not the true reasons but are pretexts for discrimination. Id. "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 148. "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 147. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it maybe quite persuasive." Id. At the summary judgment stage, Johnson need only raise a genuine issue of material fact. See Tutton v. Garland lndep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, J.).
To establish a prima facie case, Johnson must prove that he (1) was disabled; (2) was otherwise qualified for the job; and (3) was the subject of an adverse employment action because of his disability. Cf. Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999) (describing prima facie case under Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.); Chandler v. City of Dallas, 2 F.3d 1385, 1389-1390 (5th Cir. 1993) (listing requirements for proving Rehabilitation Act violation).
B
The City argues that Johnson has not produced any evidence that he was treated adversely because of his disability. The court agrees. Johnson asserts that summary judgment is improper because DFD used subjective standards in determining that Johnson had failed the training program. He notes that he was obligated to meet certain minimum qualifications before he was trained. Johnson also submits the admission of Bob Bradley, the training officer, that Johnson had room for improvement at the end of the four weeks. Nevertheless, he does not provide any evidence, beyond an assertion that subjective standards existed, that the City took any action as a result of his disability or that he was treated differently from non-disabled persons. Without evidence that these subjective standards were used to effect discriminatory prejudice, there is no evidence of discrimination because "a system based on subjective criteria is not `discriminatory per se.'" Anderson v. Douglas Lomason Co., 26 F.3d 1277, 1292 (5th Cir. 1994) (quoting Page v. U.S. Indus., Inc., 726 F.2d 1038, 1046 (5th Cir. 1984)). Johnson has not submitted any evidence that, on the basis of subjective criteria, disabled persons were more likely to fail DFD training programs in general or this program in particular. He points to no specific criterion that he alleges discriminates against him as a disabled person. In fact, Johnson admits that he participated in the same training course, and received the same evaluations, as did Gerald Jones, who is not disabled. Moreover, the City has adduced evidence that other individuals with disabilities have passed the training course. This proof at least suggests that the reason for Johnson's failure was not his disability. Because Johnson has not provided any evidence to the contrary, the court holds that Johnson has failed to establish a prima facie case of discrimination under the Rehabilitation Act. Accordingly, the court grants summary judgment dismissing this cause of action.
Plaintiff's brief does not cite the record by appendix page in the manner required by N.D. Tex. Civ. R. 56.5(c), which provides:
A party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence.
N.D. Tex. Civ. R. 56.5(c) ( reprinted in Texas Rules of Court: Federal at 242 (West Pamp. Supp. 2000)). In Bradshaw v. Marketing Specialists Sales Co., ___ 2001 WL ___, Civil Action No. 3:98-CV-1312-D, slip op. at 5 (N.D. Tex. Mar. 29, 2001) (Fitzwater, J.), the court ruled adversely to summary judgment movants and nonmovants where inter alia they failed to comply with Rule 56.5(c). Considering the relatively abbreviated record on which the instant summary judgment motion is based, and because this procedural defect has not interfered with the decisional process of the court, the court will excuse this deficiency. Counsel cannot assume, however, that the court will do so in future cases or in different circumstances.
C
To support his reasonable accommodation claim, Johnson must establish that (a) he is handicapped but, (b) with reasonable accommodation (which he must describe), he is (c) able to perform the essential functions of the position he holds or seeks. See Barth, 2 F.3d at 1186. Johnson describes the reasonable accommodation he seeks as a reassignment to a position that was available in the Recruiting Division. The City contends, and Johnson does not offer any countervailing evidence, that the only position in recruiting that was available after Johnson failed dispatcher training required the rank of captain, which Johnson had not attained. An employer is not required to promote an employee as a form of reasonable accommodation. Cf. Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 622-23 (5th Cir. 2000) (citing Milton v. Scrivner, 53 F.3d 1118, 1125 (10th Cir. 1995) (holding that ADA does not require promotion of employees in order to reasonably accommodate them)). Johnson argues that a fact issue exists because DFD had offered him another position in recruiting before he started dispatcher training. He does not dispute, however, the City's assertion that the recruiting position he had been offered, and for which he was qualified, was no longer available after he failed dispatcher training. Given the lack of any evidence that a position was available for Johnson's reassignment, the court grants summary judgment on his reasonable accommodation claim.
III
Johnson also alleges a fraud claim against the City. Specifically, he alleges that DFD falsely led him to believe that although he was going into retirement and collecting his pension, he would actually only be taking a disability leave and would receive another position within DFD once an opening occurred. He further asserts that this misrepresentation was knowing and intentional. The City argues that it is immune from liability under the Texas Tort Claims Act ("TTCA"), Tex. Civ. Prac. Rem. Code Ann. § 101.057(2) (Vernon 2000).
Section 101.057(2) states that the TTCA's waiver of sovereign immunity does not apply to claims "arising out of assault, battery, false imprisonment, or any other intentional Tort. . . ." Accordingly, a municipality is not liable for intentional torts. See Jones v. Houston Indep. Sch. Dist., 979 F.2d 1004, 1007 (5th Cir. 1992). Johnson argues the City is not immune because the TTCA provides in some cases for governmental liability for functions such as police and fire protection and control. See Tex. Civ. Prac. Rem. Code Ann. § 101.0215(a)(1) (Vernon 2000). In advancing this argument, Johnson misunderstands the TTCA. In general, a municipality is immune from tort liability for its own acts or the acts of its agents. See City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex. 1998). In specific circumstances, including fire or police protection and control, the TTCA qualifies this regime of sovereign immunity. The TTCA explicitly states in § 101.057(2), however, that it does not apply to intentional torts, thereby rendering municipalities within Texas immune from liability for all intentional torts. The fact that a subsequent section of the TTCA provides for liability arising from fire protection does not affect a city's immunity for intentional torts, because, by its own terms, the TTCA's waiver of sovereign immunity does not apply to intentional torts. The case that Johnson cites does not support the opposite result. In Holder v. Mellon Mortgage Co., 954 S.W.2d 786, 804-5 (Tex.App. 1997, no writ), rev'd on other grounds, 5 S.W.3d 654 (Tex. 1999), the court — even while considering whether a negligent action arising from police protection and control fell within the TTCA's waiver of sovereign immunity — affirmed that municipalities are not liable for intentional torts.
Because Johnson's complaint clearly alleges that the City made a misrepresentation, " knowing such a representation to be false and with the intent that Johnson rely on said misrepresentation," P. Compl. 17 (emphasis added), his fraud claim alleges an intentional tort for which the City is immune. The court therefore grants summary judgment dismissing this claim.
* * *
The City's December 1, 2001 motion for summary judgment is granted and this action is dismissed with prejudice by judgment filed today.SO ORDERED.