REVISED, April 6, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-50612
DANIEL D. MCINNIS,
Plaintiff-Appellant,
VERSUS
ALAMO COMMUNITY COLLEGE DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
March 20, 2000
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
D. Dwain McInnis (“McInnis”) appeals from the final judgment
entered by the district court, Magistrate Judge Pamela Mathy
presiding, which granted summary judgment to the defendant Alamo
Community College District (“ACCD”) on his claims brought pursuant
to the Americans With Disabilities Act. The magistrate judge
granted summary judgment after concluding that McInnis failed to
establish a prima facie case of discrimination under the ADA since
he neither was, nor was regarded as being, disabled, and
alternatively that ACCD had presented a legitimate, non-
discriminatory reason for terminating his employment which he
failed to establish was a mere pretext for intentional
discrimination. Because we find that there remain genuine issues
as to the material facts in this case, we vacate the order of the
magistrate judge granting summary judgment in favor of ACCD, and
remand for further proceedings.
I. BACKGROUND
In 1975, McInnis suffered a severe closed head injury when he
was involved in an automobile accident. After a period of
rehabilitation, McInnis was able to return to work full time and
has not received any physical therapy since approximately 1980.
His resulting permanent impairments include slurred speech, walking
with a limp, a language communication disorder, and partial
paralysis of his right side. According to McInnis, these
impairments have substantially limited the major life activities of
walking, speaking, communicating, and performing some manual tasks.
After having first worked for several banks and bank holding
companies in Beaumont, Texas, McInnis was hired on January 11, 1988
as part of Palo Alto College's (“PAC”) full-time faculty. His job
duties included both classroom instruction and coordinating a joint
program sponsored by the American Institute of Banking (“AIB”) and
PAC. During his employment, McInnis concedes that he did not feel
the need for, nor did he request any, “reasonable accommodation”
for his impairments. And there is no dispute as to McInnis's
qualifications to perform the essential functions of his position
2
as a business administration instructor.
At some point in June 1992, McInnis was moved from his
position as coordinator of the AIB/PAC banking program to a full-
time teaching position. Brian Skinner, who was then president of
PAC, drafted an un-dated letter in which he provided McInnis with
the reasons for his transfer. He stated that “first, the banking
program was not functioning well and, secondly, you had a handicap
that may have contributed to this problem. You were put into
teaching to provide 'reasonable accommodation.'”1
At some point during his employment as a teacher, a student
complained to Department Chair John Schlegel, who relayed the oral
complaint in writing to Judith Cardenas, the acting Dean of the
Business and Applied Science Department, that McInnis was
intoxicated in class. Schlegel recommended investigation since the
student who was a trained nurse observed McInnis's slurred speech,
unsteady gait, blood-shot eyes, and pauses during his lecture. In
his memorandum, Schlegel also indicated that he believed the
student's impression may have been based upon a misperception
regarding McInnis's disability since her report focused, and was
based primarily upon, his unsteady gait and slurred speech.
The record contains three letters which were sent from AIB to
ACCD regarding McInnis's performance as banking program
coordinator. The first, dated June 10, 1991, was sent by Amanda
Talaat, executive director of AIB, to the Dean of the
1
The Americans With Disabilities Act went into effect on
July 26, 1992, approximately one month following McInnis's
“accommodation.”
3
Occupational/Technical Education Department at PAC. The letter
related AIB's concerns about the program and the belief that the
problems were related to McInnis. The second, dated April 15,
1992, was sent by Peggy Walker, chairman of the AIB board, to John
Schlegel, the Business and Applied Science Department Chair. That
letter stated that McInnis should not continue as director because
of his problems with “oral communication.” The third, dated
November 19, 1993, was drafted by William Goetz, chairman of the
AIB board in San Antonio, to Dr. Joel Vela, the new President of
Palo Alto College (Vela was hired in May, 1993). That letter noted
a marked improvement in the AIB/PAC banking program after McInnis
had been removed and stated that AIB would rethink its relationship
with PAC if McInnis were returned to the position of coordinator.
Ms. Talaat testified that the third letter was prepared at the
request of ACCD, more than one year after McInnis was removed from
the coordinator position, because Dr. Vela “needed it.”
The decision to renew McInnis's teaching contract in 1993 was
vested in Vela, the new president of PAC. On November 22, 1993,
Vela informed McInnis by letter that his contract would not be
renewed beyond December 31, 1993. His termination date, however,
was subsequently extended to the end of the Spring semester of
1994. Despite this letter, the committees in charge of promotion
and tenure recommended to Vela that McInnis be both promoted and
granted tenure. Notwithstanding the committees’ recommendation,
Vela recommended to the Chancellor, who in turn recommended to the
ACCD Board of Trustees, that McInnis receive neither a promotion
4
nor tenure. Predictably, he got neither. Vela stated in his
deposition that there were two reasons why he did not want to renew
McInnis's contract: (1) the November 19, 1993 letter addressed to
him from AIB, and (2) the allegation that McInnis taught a class
while intoxicated.
On January 13, 1994, McInnis filed a charge of discrimination
with the EEOC, alleging that he had been discriminated against on
the basis of a perceived disability when his employment contract
was not renewed. McInnis received a right to sue letter from the
EEOC, and the present lawsuit resulted.
As noted above, the magistrate judge concluded that McInnis
failed to establish a prima facie case of discrimination under the
ADA since he neither was nor was regarded as disabled. In the
alternative, the magistrate judge concluded that ACCD had presented
a legitimate, non-discriminatory reason for terminating McInnis's
employment, which he failed to establish was a mere pretext for
intentional discrimination. McInnis timely appealed.
II. DISCUSSION
We review the grant of summary judgment de novo, applying the
same standards as the district court. See Sherrod v. American
Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998). Summary
judgment under Rule 56 of the Federal Rules of Civil Procedure is
appropriate only if
. . . the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no genuine issue as to any
5
material fact and that the moving party is
entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
A fact is material if it could affect the outcome of the
lawsuit, and a dispute about a material fact is genuine if the
evidence is such that a reasonable jury could return a verdict for
the non-moving party. See Anderson v. Liberty Lobby, Inc., 106
S. Ct. 2505 (1986). In reviewing all of the evidence, courts must
look at the evidence and draw all inferences therefrom in a light
most favorable to the non-moving party. See Hibernia Nat'l Bank v.
Carner, 997 F.2d 94, 97 (5th Cir. 1993). Thus, we review all of the
evidence in this case in a light most favorable to McInnis, drawing
all reasonable factual inferences therefrom and making all
credibility determinations related thereto in his favor.
1. The Prima Facie Case of Discrimination.
This being a case brought under the Americans With
Disabilities Act where only circumstantial evidence is offered to
show the alleged unlawful discrimination, we apply the McDonnell
Douglas, Title VII burden-shifting analysis. See Daigle v. Liberty
Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995) (citing McDonnell
Douglas Corp. v. Green, 93 S. Ct. 1817, 1824 (1973)). Under this
framework, a plaintiff must first make a prima facie showing of
discrimination by establishing that: (1) He is disabled or is
regarded as disabled; (2) he is qualified for the job; (3) he was
subjected to an adverse employment action on account of his
disability; and (4) he was replaced by or treated less favorably
6
than non-disabled employees. See Burch v. Coca-Cola Co., 119 F.3d
305, 320 (5th Cir. 1997), cert. denied 118 S. Ct. 871 (1998). Once
the plaintiff makes his prima facie showing, the burden then shifts
to the defendant-employer to articulate a legitimate, non-
discriminatory reason for the adverse employment action. Once the
employer articulates such a reason, the burden then shifts back
upon the plaintiff to establish by a preponderance of the evidence
that the articulated reason was merely a pretext for unlawful
discrimination. See Daigle, 70 F.3d at 396.
As noted above, the threshold element of a prima facie showing
of discrimination under the ADA is a showing that the plaintiff
either is, or is regarded as being disabled. Failure to establish
an actual or perceived disability is thus fatal to a plaintiff's
case. The magistrate judge based her conclusion that McInnis
failed to set forth a prima facie case of ADA discrimination on two
sub-determinations: (1) that McInnis was neither actually disabled
nor regarded as disabled; and (2) that he was not terminated on
account of the alleged disability or perception of disability. We
confine our consideration of this case to those two issues.
A. Is McInnis either disabled or “regarded as” disabled?
The magistrate judge properly identified the relevant
standards for defining and determining when one is disabled under
the ADA. A “disability” under the ADA is defined as “a physical or
mental impairment that substantially limits one or more of the
major life activities of [an] individual; a record of such
7
impairment; or being regarded as having such an impairment.” 42
U.S.C. § 12102. A “major life activity,” as defined by the EEOC
regulations includes such functions as “caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 29 C.F.R. § 1630.2. And one is
“substantially limited' in a major life activity if he is:
(i) [u]nable to perform a major life activity that
the average person in the general population can
perform; or
(ii) [s]ignificantly restricted as to the
condition, manner, or duration under which an
individual can perform a particular major life
activity as compared to the condition, manner, or
duration under which the average person in the
general population can perform that same major life
activity.
29 C.F.R. § 1630.2. Furthermore, an individual may be “regarded as
disabled” if he has a physical or mental impairment that does not
substantially limit major life activities but nonetheless is
treated by a covered entity as constituting such a limitation. See
id.
With respect to whether McInnis is actually disabled, we note
that the analysis of whether a plaintiff's claimed impairment
interferes with a major life activity in such a substantial way as
to constitute a disability requires an individualized inquiry. See
Sutton v. United Air Lines, Inc, 119 S. Ct. 2139, 2147 (1999).
ACCD argues that McInnis has failed to articulate with specificity
any substantial limitation of his ability to perform everyday
activities, and that what he has alleged is only mild difficulty in
walking, speaking, and performing manual tasks. ACCD notes that
8
McInnis claims only that, as a result of an automobile accident, he
has somewhat slurred speech (which he calls an expressive language
disorder (“ELD”)), a slight limp which is exaggerated when he is
fatigued, and stiffness and fatigue in his hands which prohibit him
from properly forming script letters. ACCD also notes that when
provided an opportunity to disclose any physical limitations that
would affect his ability to perform his job functions on his
employment application, he responded “none.”
ACCD cites several cases in support of its contention that the
mild impairments suffered by McInnis do not rise to the level of
“disability” under the ADA. See Talk v. Delta Air Lines, Inc., 165
F.3d 1021, 1022-1025 (5th Cir. 1999); Deas v. River West, L.P., 152
F.3d 471, 480 n.2 (5th Cir. 1998), cert. denied, 119 S. Ct. 2392
(1999); McGraw v. Sears, Roebuck & Co., 21 F.Supp.2d 1017, 1021 (D.
Minn. 1998). However, as noted above, disability determinations
must be made on a case-by-case basis, without strict categorical
reliance on disability determinations made in prior cases as
establishing per se disability or non-disability. See Sutton, 119
S. Ct. at 2147.
In the circumstances of this case, we need not reach the issue
of whether McInnis was actually disabled because, even if he does
not suffer from an “actual” disability, McInnis may still recover
if his employer “regards” him as being disabled. As will be
discussed below our review of the record of this case leads us to
conclude that there remains a genuine factual issue as to whether
McInnis was “regarded as” disabled by his employer.
9
In order to be “regarded as” disabled a plaintiff must: (1)
have a physical or mental impairment that does not substantially
limit major life activities, but be treated as such by an employer;
(2) have a physical or mental impairment that substantially limits
one or more major life activities, but only because of the
attitudes of others toward the impairment; or (3) have no actual
impairment at all, but be treated by an employer as having a
substantially limiting impairment. See Sherrod, 132 F.3d at 1121.
The plaintiff also must establish that the impairment, if it
existed as perceived, would be substantially limiting. See Deas,
152 F.3d at 476.
McInnis appropriately relies on the testimony of ACCD's ADA
compliance coordinator that she could tell from his file that he
was either disabled or perceived as disabled by ACCD. Perhaps
understandably, ACCD fails to address this damaging testimony in
its brief. McInnis also relies on former President Skinner's
letter in which he told McInnis that his transfer was an
“accommodation” for his “handicap.” ACCD counters that Skinner was
not a decision maker in the adverse employment action taken against
McInnis (contract non-renewal), that the statement was made prior
to enactment of the ADA,2 and that there is no evidence that
2
ACCD's argument here is suspect. ACCD is correct that the
ADA was not made retroactive, but there is no support for the
conclusion that pre-ADA activities cannot be used as evidence that
a plaintiff was “regarded as” disabled. Rather, the non-
retroactivity of the ADA merely removes adverse employment actions
taken prior to enactment from the scope of the statute.
10
Skinner understood the legal meaning of the terms “handicap” and
“reasonable accommodation.”
ACCD also argues that merely because it may have been aware of
a disability, that does not require a finding that it “perceived”
McInnis as disabled. And according to ACCD, there is no evidence
that President Vela or anyone whom he consulted prior to deciding
not to renew McInnis's contract viewed McInnis as being
substantially limited in any major life activity.
McInnis argues that he need only establish that he was
regarded as unable to perform or significantly restricted in
performing a major life activity (speech). He argues that the
reasonable accommodation provided by Skinner in transferring him to
teaching only was to allow him to perform his essential job
functions in spite of his disability (that is, his substantially
limited major life activity of speech).
Construing all of the evidence and factual inferences in favor
of McInnis, especially the testimony of ACCD's own ADA compliance
coordinator, and irrespective of whether he suffered an actual
disability, there is ample evidence from which a reasonable jury
could find that ACCD perceived or regarded McInnis as disabled
because he was substantially limited in his major life activity of
speaking.
B. Was McInnis terminated “because of” his disability?
In order to make his prima facie showing of discrimination,
McInnis must also establish that he was terminated “because of” his
11
disability. Here the undisputed evidence is that the stated
reasons given by Vela for not renewing McInnis's contract
(effectively terminating him) were two-fold: (1) a student's
allegation of intoxication in the classroom; and (2) concerns over
his poor performance as banking coordinator.
Neither of these two reasons is supported by the record of
this case. By its own admission in its supplemental position
statement to the EEOC, ACCD stated that “the only allegation
related to a 'disability' [the memorandum regarding a student
allegation of intoxication while teaching] was investigated and
summarily dismissed.” The relied upon complaints about McInnis's
job performance as AIB/PAC program coordinator were stale, as he
transferred to a new position as a teacher some one and a half
years prior to ACCD's decision not to renew his contract, and
McInnis received only outstanding performance reviews as an
instructor during the one and a half years preceding his
termination. Moreover, both of the reasons given for McInnis's
termination are entirely related to and predicated upon his
perceived disabilities. He was in effect terminated for his poor
performance as banking coordinator, and his poor performance
resulted from his disability or perceived disability. Likewise,
the intoxication allegation had, by ACCD's own admission, been
summarily dismissed as caused by the symptoms of his disability.
McInnis states that he was “a disabled employee performing in
an outstanding fashion under a reasonable accommodation [who] was
terminated as a direct consequence of the symptoms of his
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disability.” Construing all of the evidence in a light most
favorable to McInnis, we find that a reasonable jury could have
agreed with McInnis's statement and concluded from the evidence
presented that McInnis was terminated because his employer regarded
him as disabled. We therefore conclude that McInnis has sustained
his initial burden of establishing a prima facie case of unlawful
disability based discrimination.
2. Reasonable Inference of Discrimination
As noted above, under the McDonnell Douglas framework
applicable to cases based on circumstantial evidence, once a
plaintiff makes his prima facie showing, the burden then shifts to
the defendant-employer to articulate a legitimate, non-
discriminatory reason for the adverse employment action. And once
the employer articulates such a reason, the presumption of unlawful
discrimination disappears and the burden then shifts back upon the
plaintiff to establish by a preponderance of the evidence that the
articulated reason was merely a pretext for unlawful
discrimination. See Daigle, 70 F.3d at 396.
In Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.
1996) (en banc), we held that in order to sustain a finding of
discrimination, “circumstantial evidence must be such as to allow
a rational factfinder to make a reasonable inference that
[disability] was a determinative reason for the employment
decision.” Id. With respect to creating such an inference, we
held in Rhodes that “a jury issue will be presented and a plaintiff
13
can avoid summary judgment . . . if the evidence taken as a whole
(1) creates a fact issue as to whether each of the employer's
stated reasons was what actually motivated the employer and (2)
creates a reasonable inference that [disability] was a
determinative factor in the actions of which plaintiff complains.”
Id.
McInnis contends that he has satisfied his burden under
Rhodes. First, he argues that the summary judgment evidence
created establishes that ACCD's two proffered reasons for not
renewing his contract were neither legitimate, nor non-
discriminatory; he argues that he was terminated for reasons
directly related to the symptoms of his disability. Second,
McInnis argues that there is ample evidence to establish a
reasonable inference that his perceived disability was a
determinative factor in the decision not to renew his contract.
While the reasons advanced by ACCD for termination
(intoxication and poor performance as banking coordinator), may be
facially legitimate, we express doubt as to whether they are non-
discriminatory. As noted above, neither of the reasons are
supported by the record evidence. That is, ACCD conceded that the
intoxication allegation was summarily dismissed, and it relied upon
complaints about McInnis's poor performance as the AIB/PAC program
coordinator which were stale by more than one and a half years
without regard to his notably improved performance once transferred
to a teaching only position. In our view, there was sufficient
evidence presented to create a fact issue as to whether ACCD's
14
stated reasons were what actually motivated the decision to not
renew McInnis's contract.
Our review of the record also reveals ample evidence from
which a reasonable jury could conclude that ACCD's proffered
reasons were nothing more than a pretext for unlawful
discrimination based upon McInnis's perceived disability. The
following is the evidence proffered by McInnis, which when
construed in his favor, supports an inference of discrimination:
(1) contradictions between Department Chair Schlegel and President
Vela regarding whether they discussed McInnis and the intoxication
allegation; (2) contradictions regarding the disposition of the
intoxication allegation (summarily dismissed or active complaint
serving as primary reason for termination); (3) ACCD's report to
the EEOC which it confessed contained false statements regarding
committee recommendations on tenure; (4) the admission by Vela that
he knew the EEOC statements were false when they were made yet he
did nothing to correct them; (5) ACCD's denial that it ever
accommodated McInnis's disability versus the statement of then-
President Skinner to the contrary; (6) Ms. Talaat being requested
by Vela out of the blue to prepare a letter criticizing McInnis's
earlier performance in a position he no longer held so that the
letter could be used as a “trigger” only days later to terminate
McInnis;3 (7) the sworn contradictions between ACCD's EEO manager
3
This fact seems most damning of pretext as Ms. Talaat
specifically stated that she was asked to prepare the letter
complaining about McInnis some one and a half years after he had
been removed from that position because Vela “needed it.”
15
and its ADA coordinator regarding conversations about McInnis and
the reasons for his termination; and (8) the testimony of the ADA
coordinator that she was asked by the EEO manager to destroy
documents which might hurt ACCD's position.
ACCD argues that Dr. Vela, the decision-maker in this
scenario, was unaware of McInnis's file, his disability, or
Skinner's alleged accommodation thereof. Thus, ACCD argues that
right or wrong, for all Vela knew, McInnis was still the banking
coordinator who performed poorly in the past and who had appeared
for a class intoxicated. Yet we find that Vela's “ignorance” is
suspect in light of the evidence that he solicited the third
complaint letter from Ms. Talaat specifically to build a case for
firing McInnis and that he made no effort to validate the
intoxication complaint before making his non-renewal decision. We
note that the student's misperception as to McInnis's intoxication
was acknowledged as being related to his disability when in its
EEOC response, ACCD acknowledged that her perceptions were
disability related and affirmatively represented that the complaint
had been summarily dismissed in order to diminish the effects of
the complaint. However, Dr. Vela stated later that this admittedly
“disability related misperception” formed half of the basis for his
decision to take adverse action against McInnis.
We conclude that McInnis has put forth evidence which a
reasonable jury could use to determine that the true, driving
reason for not renewing McInnis's contract was impermissible
discrimination based on his actual or perceived disability. Thus,
16
we also conclude that the magistrate judge erred in finding as a
matter of law that McInnis failed to create a genuine issue of
material fact as to that issue. A reasonable jury, viewing all of
the evidence in a light most favorable to McInnis, could certainly
resolve these matters in his favor. As such, and thus, summary
judgment was improvidently entered against him.
III. CONCLUSION
For all of the foregoing reasons, we VACATE the magistrate
judge's order granting summary judgment in favor of ACCD and REMAND
this cause for further proceedings consistent herewith.
17