Opinion
Civil Action No. 3:03-CV-0858-N.
August 26, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Dallas Independent School District's ("DISD") Motion for Summary Judgment, filed March 31, 2004. DISD argues that summary judgment is appropriate because Plaintiff Edward Alexis ("Alexis") cannot establish a prima facie case of discrimination based on disability or race, his termination was based on a legitimate non-discriminatory rationale, he has failed to exhaust applicable administrative remedies, and he cannot show any instances of retaliation. Because Alexis was not a "qualified individual" upon his termination, he cannot demonstrate a prima facie case of discrimination. Accordingly, DISD's motion is granted.
Because of the Court's ruling on this ground, it is unnecessary to address DISD's alternative bases for summary judgment.
I. BACKGROUND
DISD hired Edward Alexis as a classroom teacher in January 2000. Upon his hiring, Alexis was not certified by the Texas State Board of Educator Certification ("SBEC"), as required for teachers in Texas public schools. TEX. EDUC. CODE § 21.003(a). In order to qualify for full teacher certification, Alexis required an additional thirty-nine semester hours of college credit and needed to pass the Texas teacher certification exam. On January 25, 2000, Alexis applied for and was issued an emergency teaching permit by which he was permitted to teach for a maximum of three school years while working toward obtaining full certification by the SBEC. See 19 TEX. ADMIN. CODE § 230.506(a)(2).On June 7, 2001, Alexis signed a three year employment contract with DISD. Paragraph 5 of the employment contract stated, "[t]his contract is conditioned on Teacher's satisfactorily providing the certification, service records, teaching credentials, oath of office, and other records required by law, the Texas Education Agency, or the District." At the end of the 2001-2002 school year, Alexis had completed his college coursework, but failed in each of his six attempts to successfully complete the teacher certification examination. Upon the expiration of Alexis's three year emergency teaching permit, DISD terminated his employment in accordance with the terms of the contract.
Alexis requested testing accommodations from SBEC following his discharge from DISD, and passed the teacher certification examinations in October 2003.
Alexis contends that his inability to pass the teacher certification exam was a result of major depressive disorder, a disability status protected under the Americans With Disabilities Act. He argues that DISD's failure to obtain a hardship extension to allow him additional time within which to become certified constitutes discrimination on the basis of disability and race. In effect, Alexis claims that he was qualified as a teacher with a reasonable accommodation, and DISD's failure to provide that accommodation resulted in his termination.
It is unclear whether Alexis intends to assert a retaliation claim. Because Alexis has not alleged that he engaged in any protected activity prior to his termination, any retaliation claims are barred. See Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002).
II. ALEXIS WAS NOT A "QUALIFIED INDIVIDUAL WITH A DISABILITY" A. Alexis Had Not Obtained Teacher Certification
Under the Texas Education Code, "[a] person may not be employed as a teacher, teacher intern or teacher trainee, librarian, educational aide, administrator, or counselor by a school district unless the person holds an appropriate certificate or permit issued as provided by Subchapter B." TEX. EDUC. CODE § 21.003(a). Subchapter B provides for the issuance of emergency certificates. Id. at 21.041(b)(2). An "emergency certificate" under section 21.041 is equivalent to an "emergency permit." 19 TEX. ADMIN. CODE § 230.512. An emergency teaching permit is valid for the remainder of the school year in which it is issued, and may be valid for up to two additional school years, depending upon how many credit hours remain for full certification. 19 TEX. ADMIN. CODE § 230.506(a)(2). However, "An individual may not serve as a classroom teacher of record in the Texas public schools for more than three school years, without obtaining initial, standard certification." 19 TEX. ADMIN. CODE § 230.502(d). A holder of an emergency teaching permit may not renew it for an additional year unless he has been employed for fewer than 90 days of the academic year. 19 TEX. ADMIN. CODE § 230.506(a)(4).
In the instant matter, Alexis applied for, and was issued, an emergency teaching permit on January 25, 2000. Because Alexis required thirty-nine hours of coursework, the permit was valid for three academic years. See 19 TEX. ADMIN. CODE § 230.506(a)(3)(D). Although Alexis argues that his emergency permit was valid for three calendar years, Texas law clearly indicates that "[a]n emergency permit is valid for the remainder of the school year for which it is activated and authorized by the State Board for Educator Certification (SBEC)." 19 TEX. ADMIN. CODE § 230.502(b). Renewals of the emergency permit are limited to two additional school years beyond the initial emergency permit. Id. at 230.502(d). Accordingly, Alexis's emergency permit was valid, at most, until the end of the 2001-2002 school year.
In Nunez v. Simms, the Fifth Circuit considered a schoolteacher's claim that her termination for failure to obtain Texas teacher certification was a violation of her due process rights. Nunez v. Simms, 341 F.3d 385, 326-87 (5th Cir. 2003). There, Nunez was terminated prior to the expiration of her employment contract because she — like Alexis in the instant matter — had failed to pass the ExCET exam for teacher certification. Id. at 387. The Fifth Circuit affirmed the lower court's grant of Rule 12(c) judgment on the pleadings, explaining that, "Nunez was not qualified to serve as a teacher following the expiration according to its terms of her [emergency] certification." Id. at 390. Here, too, Alexis's emergency permit expired by its own terms at the end of the 2001-2002 school year, and his employment was specifically conditioned on his successful completion of state licensing. Accordingly, Alexis's emergency permit was valid only through the end of the 2001-2002 school year, after which he was not authorized to teach in the state of Texas, and his employment terminated according to the terms of his contract.
B. DISD Did Not Improperly Deny Alexis a Reasonable Accommodation
The main thrust of Alexis's argument is that although he was not qualified for his job at the time of his termination, DISD improperly denied him the ability to become certified by denying him a reasonable accommodation for his severe depression. Alexis alleges that other unnamed teachers have been granted hardship extensions to allow additional time to obtain teacher certification, and to deny such extension is discrimination based on disability and race. It is undisputed that in order to establish a prima facie case of discrimination, a plaintiff must show that he is a "qualified individual with a disability." E.g., Daugherty v. City of El Paso, 56 F.3d 695, 696 (5th Cir. 1995). "A `qualified individual with a disability' means `an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.'" Id. (quoting 42 U.S.C. § 12111(8)).
Here, Alexis was not qualified for his teaching position following the expiration of his emergency certification. Although he had completed the college courses required for certification, he had failed to successfully complete the ExCET exam. Alexis's claim that DISD failed to provide him an accommodation necessary to obtain certification is inapposite. First, the accommodation suggested was not within the power of DISD. Although DISD, like Alexis, can apply to the SBEC for an extension of the emergency permit, the SBEC is alone responsible for granting extensions on emergency permits. In addition, the SBEC alone determines what testing accommodations are allowed, including the accommodation that Alexis was granted prior to his October 2003 completion of the ExCET exam.
"Under the ADA, an employer is not required to give what it does not have." Foreman v. Babcock Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997). Here, DISD did not have the ability to grant a hardship extension to Alexis's emergency teaching permit, and state law prohibited his continued employment as a teacher without teaching certification. In short, the accommodation that would have made Alexis a "qualified individual with a disability" was not among the powers available to DISD. Upon his termination, Alexis was not a "qualified person with a disability," and he therefore cannot establish a prima facie case of race or disability discrimination.
CONCLUSION
Plaintiff Edward Alexis has failed to raise a prima facie case of discrimination because he has failed to establish that he was qualified for employment with DISD after his emergency permit expired. Accordingly, Defendant is entitled to judgment as a matter of law, and the motion for summary judgment is granted in its entirety.