MEMORANDUM OPINION AND ORDER
Before the court are Defendant’s Motion for Summary Judgment (Doc. 32), filed
I. Procedural and Factual Background
Plaintiff Rodger Weems (“Plaintiff’ or “Weems”) filed this action against Defendant Dallas Independent School District (“Defendant” or “DISD”) on June 24, 2015.
On July 15, 2016, DISD movеd for summary judgment. Plaintiff filed a response to Defendant’s Motion for Summary Judgment on August 5, 2016. On August 19, 2016, Defendant filed a reply in support of its motion for summary judgment and objections to Plaintiffs summary judgment evidence. Specifically, Defendant requests that the court strike portions of Plaintiffs affidavit because it contains subjective and conclusory statements that- are not based on personal knowledge; statements that are hearsay; statements contradicting pri- or . deposition testimony; and irrelevant statements. Defendant also requests that the court strike the current DISD policy that Plaintiff presents as summary judgment evidence, as the policy is irrelevant because it was issued years after Plaintiffs contract was recommended for. nonrenewal. Plaintiff did not file a response to Defendant’s objections or motion to strike.
The court now sets forth the facts in accordance with the standard in Section II of this opinion. Weems began his employment with DISD’ in August 2001, as a teacher at Thomas A. Edison Middle Learning Center. Def.’s App. 25.
Upon returning to work, Weems- requested that his FMLA status be changed from extended leave to intermittent leave. App. 31. He provided DISD with a doctor’s note detailing the following workplace restrictions and- conditions: (1) no walking for long distances; (2) no climbing; (3) no standing for long amounts of time; (4) excusing him from work as needed because of pain;' (5) tаking temporary FMLA leave as needed; and (6) using Adaptive devices such as a walking cane as needed. App. 29. As his knee, recovered, Weems used a motorized scooter for a week, and then he switched to using a walking cane periodically. App. 29. On May 9, 2013, Weems’s doctor completed a “Return to Work Certification” form that lifted his workplace restrictions and released him to regular duty, beginning May 13, 2013. App. 94.
While his workplace restrictions .were in place, Weems was instructed to complete tasks that required him to stand. App. 29. On his first day back to work, he had to monitor students in the cafeteria and check students’ backpacks at the metal detectors. App. 30. While monitoring students in the cafeteria, he was instructed by Principal Roberto Basurto (“Basurto”) to go up and down the aisles. Id. The aisles were too narrow to fit his motorized scooter. Id. Weems, therefore, had to get out of his 'scooter to complete the task, and his injured knee began to hurt. Id. Likewise, he also had to stand the majority of the time he monitored students at the metal detectors. Id. Each day after-he returned to work, Weems was placed on metal detector duty in the morning and on cafeteria duty during lunch. Id. Although Weems contends that these tasks are evidence of DISD violating his workplace restrictions, he does not recall complaining to anyone in DISD about being required to ¡complete these tasks. App. 31. The amount of time Weems monitored the metal detectors and monitored the cafeteria is not stated; however, these duties by their nature were limited in duration.
On March 21, 2013, Weems was in the middle of teaching his class when he was called to Basurto’s office. App. 32. When he arrived at the principal’s office, Basurto informed Weems that his contract was not going to be renewed because of either prograpa changes or budget cuts. Id. Weems asked Basurto to please consider him for other positions for which he was qualified, and Basurto nodded his head. Id. Weems then left the office and returned to teach his class. Id.
Weems received a “Notice of Intent to Recommend Non-Renewal (Excess-Term Contract)” (“Notice”) dated-April 8, 2013. App. 35, 125. The Notice stated that Weems had been assigned as an excess Chapter 21 employee “[d]ue to programmatic change and/or budget reduction at [his] campus.” App. 35. The Notice also informed Weems that he would receive a notice of proposed nonrenewal from DISD’s board. App. 37. From the date he received the Notice, Weems had 15 days to request a hearing. App. 37. If he did not request a hearing or the board upheld the Notice,, his employment with DISD would end at the conclusion of his contract for the 2012-2013 academic year. Id. On May 23, 2013, Weems received a Proposed Notice of Nonrenewal Excess, and he did not request a hearing within 15 days. Weems received a letter on June 10, 2013, that informed him that the board of trustees decided not to renew his contract. App. 39.
According to Plaintiff, DISD Superintendent Mike Miles (“Miles”) publicly stated, “I like teachers who- are young and fresh.” Weems Aff. 1. Weems asked other teachers at unión meetings and teacher gatherings why they were leaving the district, and their responses were along the lines of, ‘Well, you know Miles is making it hard on old teachers.” App. 45.
Plaintiff also served as the Education Chair for the National Association for the Advancement . of Colored People (“NAACP”). App. 54. None of Plaintiffs initiatives and proposals related to his employment with DISD. App. 55. Weems was also involved with Alliance-American Federation of Teachers (“Alliance AFT”), a teacher’s union. App. 67. Through Alliance AFT, Plaintiff advocated on behalf of all teachers related to their working conditions, salaries, evaluations, and jobs. Id.
DISD has not hired another speech teacher to replace Weems, and Speech is no longer offered as an individual course. App. 240. After DISD eliminated Speech, other Language Arts teachers began incorporating aspects of Speech into their lessons plans. Id. There were five fewer teachers, at Spence during the 2013-2014 school year than the 2012-2013 school year. Id. ■
Defendant moves for ; summary judgment of each of Plaintiffs cldims. Defendant contends that there is no genuine dispute of material fact as to any of Plaintiffs claims, as Plaintiff presents no evidence to prove his prima, facie case óf disability and age discrimination, and presents no evidence to support his retaliation claim. DISD further argues that Weems’s teaching contract was recommended for nonrenewal for a legitimate, npndiscrimi-natory reason — namely, programmatic changes or budget reductions — and Plaintiff presents no evidence that its stated reasons for nonrenewal of his contract constitute pretext for discrimination. Accordingly, Defendant contends that it is entitled to judgment as a matter of law on each of Plaintiffs claims. Plaintiff counters that-he has presented evidence, to raise a genuine., dispute of material fact with respect to each of his claims, which precludes Defendant from being entitled to judgment as a matter of law,
II. Motion for Summary Judgment Standard
Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.- P. 56(a); Celotex Corp. v. Catrett,
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio,
The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas,
III. Discussion
A. Disability Discrimination
With respect to Plaintiffs disability discrimination claim brought pursuant to the ADA, Defendant contends that Plaintiff has no evidence that he was disabled or regarded as being disabled; or that his teaching contract was recommended for nonrenewal because of an actual or perceived disability. DISD further argues that Weems’s teaching contract was recommended for nonrenewal for a legitimate, nondiscriminatory reason — programmatic changes or budget reductions. DISD contends that Plaintiff presents no evidence that its articulated reasons are a mere pretext for discrimination or that Weems’s disability was a motivating factor for the nonrenewal of his contract.
1. Legal Standard for an ADA Claim
The ADA is an antidiscrimination statute designed to remove barriers that prevent qualified individuals with disabilities from enjoying employment opportunities available to persons without disabilities. Taylor v. Principal Fin. Grp., Inc.,
A person “may establish a claim of discrimination under the ADA either by presenting direct evidence or by using the indirect method of proof set forth in McDonnell Douglas .... ” Seaman v. CSPH, Inc.,
To establish a prima facie case of intentional discrimination under McDonnell Douglas, Weems must show that: “(1) [he] has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision on account of his disability.” Id. (citation omitted). Oncе the plaintiff makes that showing, “a presumption of discrimination arises, and the employer must ‘articulate a legitimate non-discriminatory reason for the adverse employment action.”’ Id. (citation omitted). “The burden then shifts to the plaintiff to produce evidence from which a jury could conclude that the employer’s articulated reason is pretextual.” Id. (citation omitted).
A person is disabled under the ADA if he (1) has a physical or mental impairment that substantially limits one or more of the major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2). The ADA Amendments Act of 2008 made it “easier for people with disabilities to obtain protection under the ADA.” Cannon,
2. Whether Plaintiff Had a Physical Impairment that Substantially Limited One or More Major Life Activities
The survival of Weems’s ADA claim turns on whether he is 'disabled or hhs been regarded’ as disabled. Plaintiff makes the' following argument as to whether he is disabled:
In February 2013[,] Plaintiff had surgery for a torn meniscus. He was required to use a cane and a motorized scooter to function in his employment! This limited his activities in teaching, which were not all classroom work, and' this is sufficient to raise a fact issue precluding summary judgment.
Pl.’s Br. in Resp. to Def.’s Mot. for Summ. J. 15 (hereafter, “Pl.’s Resp.”). Defendant counters that “the fact [that] Plaintiff allegedly needed to use the assistance of a motorized scooter for one week and a walking cane on a periodic basis for the remainder of the school year has no bearing on the assessment of whether he had a disability under the ADA.” Def.’s Br. in Supp. of Mot. for Summ. J. 24 (hereafter, “Def.’s Br.”).
In Cannon, the plaintiff had surgery to reрair his torn rotator cuff in 2010; however, the surgery was unsuccessful, and his injury limited his arm movement. Cannon,
A knee surgery certainly may substantially limit working, walking, and standing, which are classified as major life activities under 42 U.S.C. §,12102. In. Weems’s deposition, he testified that he provided DISD with a dоctor’s note detailing the following workplace restrictions and conditions: (1) no walking for long distances; (2) no climbing; (3) no standing for long amounts of time; (4) excusing him from work as needed because of pain; (5) taking temporary FMLA leave as needed; and (6) using adaptive devices such as a walking cane as needed. App. 29.
With respect to Plaintiffs contention that his knee injury limited his ability to teach, Plaintiff fails to identify or set forth evidence in the record as to how his ability to teach was substantially limited. Weems was able to work and teach his Speech class. Weems testified that he “was able tо do the job with very minimal inconvenience to the district.” App. 51. The record reflects that Weems had surgery on his knee on Thursday, -February 14, 2013, and he returned to work on Monday, February 18, 2013. App. 29. Before he returned to work, DISD had approved Plaintiff to take leave under the FMLA; however, Weems did not accept the extended leave. App, 31. He instead requested that his FMLA status be changed from extended leave to intermittent leave. App. 31. Moreover, Weems states that his physical impairment was temporary and that before the school year was over he only felt the effects of the “disability” from time to time. App. 51. From time to time means “once in a whiie: occasionally.” Merriam-Webster’s Collegiate Dictionary 1309 (ilth ed. 2014).
Plaintiff presents no evidence to support that his knee injury substantially limited his ability to work, walk, stand, or perform any other major life activity as compared to most people in the general population. At best, Plaintiffs doctor’s note demonstrated thаt he was able to perform some functions for only a limited amount of time; however, no specifics wei'e provided by Weems or his doctor. Further, Weems has not presented evidence of DISD not abiding by the doctor’s note, as there is no description or definition of what .constitutes “walking for long distances” or “standing for long amounts of time.” Moreover, Weems never stated how far he had to walk or how long he had to stand while he monitored the cafeteria and metal detectors. Accordingly, on this scant record, the court cannot reasonably conclude or infer that DISD violated the doctor’s restrictions and conditions, or that Weems was disabled. The court fully appreciates that the 2008 Amendments to the ADA broadened the concept or definition of disability to be more-inclusive; however, the court does, not believe Congress intended it to be so broad as to include someone like Weems when the evidence is so substantially lacking as to the parameters of his physical impairment.
.For the reasons stated herein, Weems does, not satisfy the broader postamendment ADA definition of a disabled person, as he presents no evidence of teaching or any other major life activity being substantially limited. Accordingly, the court determines that there is no genuine dispute-of material fact that Plaintiff was not disabled under the ADA.
3. Whether Plaintiff was . Regarded as Disabled
With respect to whether Plaintiff has been regarded as disabled under the ADA, Plaintiff contends that he has presented evidence of him being regarded ,as disabled in his affidavit. Plaintiffs affidavit states that that “Basurto was aware of [his] disability.” ■ Weems Aff. 1. Plaintiff contends that the statements on page 19 of Defendant’s memorandum in support of its summary judgment motion are also evidence of Basurto’s knowledge of Plaintiffs disability.
Defendant responds that Weems was not regarded as disabled as a matter of law because his knee injury was “transitory and minor.” DISD further argues that the evidence establishes that Plaintiff was not regarded as disabled; and Plaintiff рresents no evidence of the causal connection between being allegedly perceived as disabled and the nonrenewal of his teaching contract.
Weems’s statement that Basurto knew about his “disability” is a conclusory statement. Basurto knew that Weems had surgery and that he had some limitations physically, which is a far cry from saying that Weems was disabled under the Act. While Basurto knew about Weems’s surgery and asked what was wrong with his knee, this does not mean that Basurto regarded Weems as being disabled. Weems makes an impermissible inference regarding what Basurto knew or said.
Plaintiff returned to work within days after his knee surgery. App. 28. He applied for and received leave under the FMLA, and then he changed the status of his leave from “extended” to “intermittent.” App. 31. Despite receiving intermittent leave, he only used two days of leave over the remaining four months of the school year. Id, By the end of the school year, Weems used his walking cane only periodically. App. 29. Further, Weems’s workplace restrictions were only in place for three months, as they went into effect after his surgery in February and were lifted by his doctor in May 2013. App. 29, 94. By the end of the school year, Weems only felt his disability from time to time. App. 51. The evidence, therefore, demonstrates that all restrictions were lifted as of May 13,2013, and he was free to return to his regular duties. Plaintiff identifies no evidence to refute this point. The court agrees with Defendant that there is no genuine dispute as to any material fact that Weems’s knee injury was transitory and minor, and as a matter of lаw he was not regarded as disabled.
The court has carefully reviewed the parties’ arguments, and it agrees with Defendant that there is no genuine dispute as to any material fact that Weems was not disabled or regarded as disabled under the ADA. Weems, therefore, has failed to raise a genuine dispute of material fact with respect to the first prong necessary to establish a prima, facie case of disability discrimination, and Defendant is entitled to judgment as a matter of law on this claim.
4. Legitimate, Nondiscriminatory Reason and Pretext
Even if the court assumes that Weems has established a prima facie case of disability discrimination, Defendant has set forth programmatic changes or budget reductions as a legitimate, nondiscriminatory reason for the nonrenewal of Plaintiffs contract. There is simply no competent summary judgment evidence in the record to establish, or raise a genuine dispute of material fact, that DISD intentionally discriminated against Weems because he was disabled or regarded as being disabled. In other words, Weems fails to establish that the nonrenewal of his contract was prеtextual. All that is in the record concerning his alleged disability is Basurto’s statement inquiring about what happened to his knee. Aside from his conjecture, speculation, and subjective belief, which are not competent summary judgment evidence, Weems presents nothing to support his claim of disability discrimination.
B. Age Discrimination
Defendant contends that it is entitled to summary judgment on Plaintiffs ADEA
Plaintiff contends that he presented evidence to show that but for his age he would not have been fired.
1. Legal Standard for an ADEA Claim
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, оr privileges of employment, because of such individual’s age.” 29 U.S.C, § 623(a)(1). Unlike Title VII, the ADEA does not authorize an alleged mixed-motives age discrimination claim. Gross v. FBL Fin. Servs., Inc.,
A plaintiff may prove employment discrimination with either direct or circumstantial evidence. Jones v. Robinson Prop. Grp., L.P.,
The burden-shifting framework set forth in McDonnell Douglas Corporation v. Green,
Once a plaintiff establishes a prima facie case, the defendant must set forth a legitimate, nondiscriminatory reason for the employment action it took against the plaintiff. Id. at 350. This is a burden of production, not persuasion, on the defendant’s part, and it “can involve no credibility assessment.” St. Mary’s Honor Ctr. v. Hicks,
2. Analysis
a. Prima Facie Case
For purpose of the prima facie case, Defendant argues that Plaintiff fails to establish a genuine dispute of material fact regarding the last element of his pri-ma facie case whether he was either (i) replaced by someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise .discharged because of his age.. The court, therefore, focuses solely on whether Plaintiff has presented evidence to support the last element of his prima facie case.
Defendant argues and provides evidence that DISD has not hired another Speech teacher to replace Weems. In his declaration, Robert Abel states the following:
There has not been a Speech course taught at Spence Middle School (“Spence”) . since Rodger Weems’s (“Weems”) non-renewal in the 2012-2013 school year.. Speech is not a core content class. Rather, .Speech is an elective course that can be [ ] taught as an independent course or it can be covered by core content English teachers in their lesson plans. After the elimination, of Speech in 2pl2-2013' school year, other teachers within the Language Arts department incorporated aspects of Speech .into their lesson plans. Teacher enrollment at Spence for the 2013-2014 school year was five fewer teachers than those enrolled in the 2012-2013 school year.
App. 240. Weems produces no evidence to rebut Abel’s declaration. Weems, therefore, must prove that he was otherwise discharged because of his age. Defendant contends that Weems m'akes conclusory statements that Miles engaged in a pattern of discriminating against older, employees,
Plaintiffs response does not address Defendant’s argument that Weems has not presented evidence that he was otherwise discharged because of his age. Instead, Plaintiffs response addresses only whether Defendant presented a legitimate, nondiscriminatory reasons for Weems’s discharge.
The court has revibwed the evidence in the record, and it agrees with Defendant that Plaintiff presents no evidence to raise a genuine dispute of material fact that he was otherwise discharged because of his age. Weems’s statements that he was otherwise discharged because of his age are conclusory and speculative, and they do not constitute competent summary judgment evidence. By way of example, Weems testified during his deposition that he asked other teachers at union meetings and teacher gatherings why they were leaving the district, and their responses were along the lines of, “Well, you know Miles is making it hard on old teachers.” App. 45. Weems, however, is unable to recall who made these statements. App. 45, Weems also testified that he noticed a severe change in- the average experience of DISD teachers. App. 45. Weems said that the basis for -these statements is “anecdotal observation.” App. 45. The first statement is hearsay, and the second statement is conclusory; thus neither constitutes competent summary judgment evidence. Further, Weems’s affidavit is replete with conclusory and hearsay statements and statements without any context, which provide no evidence to show that he was otherwise discharged because оf his age.
For these reasons, Weems fails to present evidence that he was otherwise discharged because of his age, and there is no genuine dispute of material fact that Weems fails to prove a prima facie case for his ADEA claim. Accordingly, Defendant is entitled to judgment as a matter of law on this claim.
b. Legitimate, Nondiscrimatory Reason and Pretext
Even if the court assumes that Weems has established a prima facie case of age discrimination, Defendant has set forth programmatic changes or budget reductions as a legitimate, nondiscriminatory reason for the nonrenewal of Plaintiffs contract. There is simply no competent summary judgment evidence in the record to establish, or raise a genuine dispute of material fact, that DISD intentionally discriminated against Weems because of his age. In other words, Weems fails to establish that the nonrenewal of his contract' was pretext for intentional age discrimination. All that is in the record concerning alleged age discrimination is. Weems’s statement that “old age” caused the injury to his knee. Thus, it was Weems who injected аge into the equation, not Defendant. Aside from his conjecture, speculation, and subjective belief, which are not competent summary judgment evidence, Weems presents nothing to' support 'his claim of intentional age discrimination. He has not shown that his age was the “but for” cause' of the honrenewal of his contract. Accordingly, DISD is entitled to judgment as a matter of law on Weems’s ADEA claim.
c. Failure to Exhaust Administrative Remedies
Defendant also contends that Plaintiffs disparate impact age discrimination claim
C. Retaliation Claims in Violation of the ADA, ADEA, and Title VII
1. Legal Standard for Retaliation
As previously noted in footnote 2, Plaintiff only asserts a retаliation claim under Title VII. As he has withdrawn or abandoned his retaliation claims under the ADA and ADEA, they are no longer before the court, and the court will not address them.
It is “an unlawful employment practice for an employer to discriminate against any of [its] employees ... because [the employee] has opposed any practice made an unlawful employment practice” under Title VII, or “because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a); see also Clark Cty. Sch. Dist. v. Breeden,
To establish a grima fade case of retaliation in this circuit, a plaintiff must show that: (1) he engaged in a protected activity; (2) he experienced аn adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. McCoy v. City of Shreveport,
At this juncture, the plaintiff bears the burden of establishing that the employer’s stated reason is a pretext for the real retaliatory purpose. McCoy,
In Burlington Northern & Santa Fe Ry. Co. v. White, the Supreme Court held that, because the discrimination and retaliation
2. Retaliation in Violation of Title VII
Defendant contends that Plaintiff presents no evidence that he has engaged in any protected activity under Title VII. Defendant further contends that Plaintiffs alleged advocacy is not a protected activity, as “Plaintiff cannot point to a single instance where he opposed a specific discriminatory practice by Dallas ISD[,] nor did Plaintiff ever make a charge, testify, assist, or participate in any manner in an investigation, proceeding, or hearing under Title VII during his employment with Dallas ISD.” Defi’s Br. 39. Defendant also argues that Plaintiff cannot “establish the necessary causal connection between any alleged protected activity and his non-renewal,” as Basurto and Miles were unaware of his alleged advocacy when they decided to recommend his contract for nonrenewal. Id. at 39-40.
Plaintiff counters that DISD’s argument fails, as it is “entirely logical to assume that an employer could retaliate against an employee advocating against unfair practices in general, believing it would be only a matter of time before the employee got around to his employer.” Pl.’s Resp. 18. Further, Plaintiff contends that the record contains conflicting evidence as to whether Miles and Basurto were aware of Weems’s advocacy activities with the NAACP or Alliance AFT. In support of his argument, Weems cites to his affidavit in which he states that “Mike Miles was aware of my advocacy activities with Dallas NAACP and should have been aware of my advocacy activities with Alliance AFT. Roberto Basurto was at minimum aware of my advocacy activities with the Alliance AFT and should have been aware of my advocacy activities with the NAACP,” Weems Aff. 1. Further, Plaintiff contends that Defendant’s “legitimate, non-retaliatory reason fоr discharging Plaintiff, the elimination of speech as a separate course,” is not a “neutral” reason, as “[o]ther positions were open for which Plaintiff was qualified, but he was never chosen.” Pl.’s Resp. 16, 18.
Plaintiff does not explain or describe how his involvement with the NAACP and Alliance AFT constitute engaging in a protected activity under Title VII. There is no evidence that he opposed any practice
Further, even if the court were to conclude that Plaintiff has engaged in protected activity and that he suffered an adverse emрloyment action, he fails to show any causal connection between the protected activity and his discharge (the nonrenewal of his contract). At best, Weems has a subjective belief that there is a casual connection; however, his subjective belief is insufficient to demonstrate a causal link between his protected activity and the adverse employment action. See, e.g., Byers v. Dallas Morning News, Inc.,
For the reasons stated herein, Weems did not engage in a protected activity. Moreover, even if he engaged in a protected activity, he fails to establish, or raise a genuine dispute of material fact, that a causal connection existed between the protected activity and the nonrenewal of his contract. Accordingly, Weems’s prima facie case of retaliation fails, and DISD is entitled to judgment as a matter of law on this claim.
IV. Other Outstanding Claims and Defense Arguments
With respect to any purported claim for disparate-impact
V. Motion to Strike
Also pending is a motion to strike and objections to Weems’s summary judgment evidence. DISD contends that Weems’s affidavit contains inadmissiable of hearsay, statements not based on personal knowledge,., conclusory statements, statements made on the basis of subjective belief, conflicting testimony between Plaintiffs deposition testimony and his later filed affidavit; and includes of a DISD policy that was not in effect at the time of Plaintiffs discharge. . As stated previously, Weems filed no response to the motion to strike and objections.-
Second, Defendant contends that Weems’s statements regarding Miles’s and Basurto’s knowledge of his involvement with Alliance AFT .contradict his deposition testimony in which he states that he does not have evidence of their knowledge. This statement is not contradictory, as Weems’s affidavit states what Miles and Basurto knew or should have known, and the affidavit does not identify contradictory evidence to support this statement.
Further, DISD contends that Weems’s statement that Basurto knew or should have known that he was involved with the NAACP contradicts his deposition testimony in which he is asked, “Do you have any pеrsonal knowledge as to whether Principal Basurto knew that you were involved with the NAACP?” He responds, “I don’t know the answer to that.” This statement does not contradict his deposition, as the previous question asked, “Are you alleging that Principal Basurto knew about your' involvement with the NAACP?” and Weems responded, “He knew or should have known.” The court has reviewed these statements and determines that they are not contradictory. In any event, none of the statements would alter the decision reached by the court. The court therefore, overrules, DISD’s objections.
With respect to the DISD policy attached to Weems’s response, the court sustains DISD’s objection, as the document is not authenticated and does not establish that the policy was in effect at the time Weems’s teaching contract was not renewed in 2013. The policy attached shows an issue date of April’2015, and the court does, not know which, if any, parts were in effect when Weems’s contract was not rеnewed.
Finally, with respect to all other objections asserted by DISD, they are denied as moot because the court did not consider any of Plaintiffs “evidence” that did not satisfy the standard set forth in Section II of this opinion. In any event, even if the “objected to” materials were considered, such consideration would not affect the ruling herein made with respect to Defendant’s Motion for Summary Judgment:
VI. Conclusion
For the reasons stated herein, the court determines that no genuine dispute of material fact exists with respect to Plaintiffs claims of disability discrimination under the ADA, age discrimination under the ADEA, and Title VII retaliation. Defendant is, therefore, entitled to judgment as a matter of law on these claims. Accordingly, the court grants Defendant’s Motion for Summary Judgment (Doc. 32); and dismisses with prejudice this action. Judgment will issue by separate document as required by Federal Rule of Civil Procedure 58.
It is so ordered this 26th day of May, 2017.
Notes
. On July 15, 2016, Plaintiff sought leave to file his First Amended Complaint. The court denied leave to file an amended pleading because the motion was filed six months past the deadline to amend pleadings, and Plaintiff failed to show good cause for the dilatory motion. Accordingly, the live pleading is Plaintiff's Original Complaint ("Complaint”), filed June 24, 2015.
. In his Complaint, Weems contends that the nonrenewal of his contract as a teacher with DISD constitutes retaliation under the ADA, ADEA, and Title VII. In his brief in response to Defendant’s summary judgment motion, he specifically limits retaliation to Title VII. Pl.’s Resp. 1, 16-18. As Plaintiff makes it unequivocally clear that he is no longer pursuing retaliation under the ADA or ADEA, the court determines that there is no reason for it to address these claims, as they have been withdrawn by Plaintiff and are no longer before the court. '
.As Weems did not file an appendix, all other citations to the appendix refer to that of Defendant DISD.
. Defendant disputes the existence of a doctor’s note; however, at the summary, judgment stage the court is required to resolve all disputed facts in favor of the nonmoving party. The court, therefоre, will consider the note as existing at this stage.
. Plaintiff's citations often are improper, and it is unclear in many instances what evidence Plaintiff cites to support his statements. By way of example, his brief on several pages has an "Id.” citation for his arguments; however, the preceding full citation is a Supreme Court case, which is not evidence to support his argument. Pl.’s Resp. 10-12. Moreover, throughout Plaintiff's brief, he made statements and identified no evidence in the record to support his position. Unfortunately, this task was left for the court to perform, which is something no litigant should do, as the court is not obligated to scour or sift through the record to find evidence in support of a party’s position. Ragas v. Tennessee Gas Pipeline Co.,
. DISD contends that "Miles is Black, so it defies logic that he would harbor hatred towards the NAACP.” Def.’s Br. 21. DISD is wrong in making this argument. Historically and to this day, all Blacks or African Americans do not embrace the NAACP. To say simply that a Black person cannot'hate or discriminate against another Black person or Black organization is incorrect and ignores Black history and culture. Black support for the NAACP, or any other predominantly Black organization, is not always monolithic.
. The Supreme Court has made the following distinction between . "disparate treatment” and “disparate impact" claims:
"Disparate treatment” ... is the most easi-understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion [or other protected characteristics.] Proof of discriminatory motive is critical, although it can in some situatiops be inferred from the mere fact of differences in treatment..:.
"[C]laims that stress ‘disparate impact’ [by contrast] involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive ... is not required under a disparate-impact.theory.”
Hazen Paper Co. v. Biggins,