Case: 14-10599 Document: 00513105034 Page: 1 Date Filed: 07/06/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10599 FILED
Summary Calendar
July 6, 2015
Lyle W. Cayce
Clerk
TERESA WARD COOPER,
Plaintiff-Appellant
v.
DALLAS POLICE ASSOCIATION,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:11-CV-2607
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Teresa Ward Cooper, a non-prisoner, pro se litigant, moves this court for
leave to appeal in forma pauperis (IFP) from the district court’s order granting
summary judgment and dismissing her Title VII complaint alleging gender
discrimination and retaliation by the Dallas Police Association (DPA). The
district court denied Cooper’s IFP motion and certified that the appeal was not
taken in good faith.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-10599
Cooper’s motion for leave to proceed IFP on appeal is construed as a
challenge to the district court’s certification decision. Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a). This court’s inquiry into
whether the appeal is taken in good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citations omitted).
We reject Cooper’s argument that the district court should have applied
equitable tolling to the limitations period because the DPA failed to notify her
of the termination of her membership and the loss of associated benefits.
Equitable tolling is applied only in circumstances such as when the defendant
purposefully concealed facts concerning the alleged adverse action or otherwise
engaged in misconduct to impede the plaintiff’s filing of the discrimination
charge. Granger v. Aaron’s Inc., 636 F.3d 708, 712 (5th Cir. 2011). Cooper
admitted that she learned prior to January 26, 2009, that the DPA was not
paying her counsel’s fees in association with her appeal from her August 2005
termination from the Dallas Police Department. She filed the claim with the
Equal Employment Opportunity Commission (EEOC) no earlier than
December 23, 2009, which was not within the limitations period of 300 days
after obtaining knowledge of the adverse action. See Nat’l R.R. Passenger
Corp. V. Morgan, 536 U.S. 101, 109 (2002); Granger, 636 F.3d at 712. Cooper
failed to carry her burden of presenting competent summary judgment
evidence that the DPA misled her about her membership status after she
learned of the adverse action or made any false representations concerning her
entitlement to funding for her appeal of the August 2005 termination. See
McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850, 865 (5th Cir.
1993). The district court did not abuse its discretion in failing to apply
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equitable tolling in the case. Granger, 636 F.3d at 712. The dismissal of the
complaint as time barred does not raise a nonfrivolous issue on appeal.
Howard, 707 F.2d at 220.
Nor has Cooper shown that the district court erred in its alternative
holding that Cooper failed to make a prima facie showing of gender
discrimination or retaliation and also failed to raise a genuine dispute of
material fact concerning pretext for the DPA’s actions. She has not provided
any authority for her assertion that the defendant was required to file a motion
to dismiss pursuant to FED. R. CIV. P. 12(b)(6) based on her failure to file a
timely claim. The fact that the EEOC reviewed an untimely filed claim did not
preclude the dismissal of the complaint by the federal court because the federal
courts must make “an independent determination” of the petitioner’s
compliance with Title VII filing requirements and not defer to the EEOC.
Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1304 (5th Cir. 1979).
Cooper also failed to demonstrate that she was prejudiced by the district
court’s consideration of affidavits of individuals who were not listed as
witnesses in the defendant’s initial Federal Rule of Civil Procedure 26(a)
disclosure. See Tex. A. & M. Research Found. v. Magna Transp., Inc., 338 F.3d
394, 402 (5th Cir. 2003). Cooper failed to make a prima facie showing of gender
discrimination because she presented no competent summary judgment
evidence that the DPA paid the legal expenses of similarly situated individuals
who were no longer members in good standing of the organization as a result
of failing to pay their dues. Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th
Cir 2005). Further, Cooper failed to raise a genuine dispute of material fact
regarding pretext because she did not present any competent summary
judgment evidence showing that the DPA’s legitimate nondiscriminatory
reason for denying her benefits, her failure to pay dues, was untrue and merely
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a pretext for discrimination. McCoy v. City of Shreveport, 492 F.3d 551, 562
(5th Cir. 2007).
Cooper has not briefed her argument that a prima facie case of
retaliation was shown by the temporal proximity between her actions and the
DPA’s non-payment of legal fees. Thus, she has abandoned that claim on
appeal. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Nor has Cooper
made a prima facie showing of a retaliation claim based on the untruthful
representations of the DPA because she failed to show that she was denied
legal benefits for any reason other than the non-payment of dues to the DPA
and not as a result of participation in a protected activity. See Banks v. E.
Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003).
Because Cooper has failed to raise a genuine dispute of material fact
regarding the gender discrimination and retaliation claims, the district court
did not err in granting the defendant’s motion for summary judgment and
dismissing the complaint. Cooper has not raised a nonfrivolous issue on
appeal. Howard, 707 F.2d at 220. Cooper’s motion to proceed IFP on appeal
is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 112 F.3d
at 202 n.24; 5TH CIR. R. 42.2.
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