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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

William Ellsworth, Plaintiff v. Houston Independent School District, Defendant
Civil Action No. H-98-2112

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

On December 1 and December 3, 1999, a bench trial was held in the above-styled
case. Having considered the evidence in this case and the applicable law, the
Court enters the following findings of fact and conclusions of law. Any finding
of fact that is more appropriately characterized as a conclusion of law shall be
so construed. A recitation of the background facts in this case is found in the
Court's Order dated July 31, 1999 (Instrument No. 27).

1. Findings of Fact

1. Plaintiff is trained and has worked as a teacher. He has a Masters
degree, forty-five (45) additional graduate hours in education and educational
administration, current teaching certifications in Texas and New Mexico, and
an expired certification in Washington state. His Texas teaching certifications
include ESL (Grades PK-6), Generic Special
Education (Grades PK-12), and Elementary Self-Contained (Grades 1-8). His New
Mexico teaching certifications include Secondary Modern and
Classical Language (Grades 7-12), Secondary Business Education (Grades 7-12),
and Special Education (Grades K-12).

2. Human Immunodeficiency Virus (HIV) is a retrovirus which leads to
Acquired Immune Deficiency Syndrome (AIDS). HIV impairs the human immune
system, ultimately destroying key cells that help protect the body against
disease. People infected with HIV may enjoy apparent health, relatively minor
illnesses, or the fatal constellation of infections and cancers known as AIDS.

3. HIV frequently manifests itself in a variety of symptoms and other
illnesses including non-Hodgkins [MC: non-Hodgkin's] Lymphoma, and HIV-related
cancer. Plaintiff suffered from non-Hodgkins Lymphoma [MC: high-grade
immunoblastic
lymphoma of the small bowel] during 1995-1996. Plaintiff received a medical
clearance to return to work in July 1996.

4. In April 1997, Plaintiff applied to work for the Houston Independent
School District ("HISD"). As part of the job application process for HISD,
Plaintiff completed an employment application form and provided relevant
documentation, including his DD-214 verifying his status as a veteran.


5. On or about April 13, 1997, after tendering his application for
employment with HISD, Plaintiff and his mother saw Ms. Doris Bilton, an HISD principal for whom he previously worked, at a Kroger grocery store. Ms. Bilton informed Plaintiff that she had received
a reference request regarding his recent employment application with HISD.
She told Plaintiff that she was going to have several openings at her school
and for him to call her to schedule an appointment. Ms. Bilton asked why
he as no longer in New Mexico where she knew he previously taught. He
explained that he was on medical leave and had to undergo surgery for cancer.
He explained that he
was sent to a hospice and was told he would die. He further explained that
he had fully recovered. Plaintiff's mother witnessed and joined in the
conversation that took place. Ms. Bilton, Plaintiff, and Plaintiff's parents
were friends. Plaintiff's father worked as a "Volunteer In Public Schools"
(VIPS) at Shearn Elementary when Bilton was principal at that school.

6. On may 20, 1997, Ann Bradford interviewed Plaintiff. During the
interview, Plaintiff disclosed that he had previously worked for the Albuquerque
School District and that his principal at
Galveston
Independent School District was Jack Stork. These items were previously omitted
from his application. Plaintiff also disclosed that he was on medical leave
from Albuquerque Public Schools at the time and that he had recovered from
cancer. Plaintiff did not disclose his HIV status to HISD at any time. As part
of his interview, Ms. Bradford gave Plaintiff a standardized oral exam, the
Gallup Urban Teacher Perceiver Interview Guide ("UTPIG"), designed to predict
his success in teaching in an urban schools district. Plaintiff scored an 8 out
of 22 possible points. HISD considers 11 to be a passing score.


7. On or about May 21, 1997, Plaintiff called Grissom Elementary and spoke
to Ms. Bilton. When he told her about the interview with Ms. Bradford, then a
recruiter for HISD, Ms. Bilton said that she would call Ms. Bradford right away.
Because Plaintiff planned to take his 80 year old mother to her hometown in
Kansas for Memorial Day, Plaintiff told Bilton he really wanted to know whether
he had a job with her. She responded affirmatively, however, during the time in
question, there were no openings at Grissom Elementary for which Plaintiff was
certified.


8. Plaintiff received his rejection letter from Jo Nell Drayden , a
personnel administrator with HISD, on July 18, 1997...

Plaintiff was certified to teach special education and English as a second
language. Although HISD still had a desperate need for teachers in those
areas for the 1997-1998 school year [MC: and continues to have...],
because Plaintiff had not received an acceptable score on the Gallup Urban
Teacher Perceiver Interview Guide and no HISD principal had specifically
requested him, he was not eligible for hiring. HISD admitted that it hired
applicants who scored below an 11 on the UTPIG to fill critical vacancies -
which include special education and ESL, certifications which the Plaintiff
holds. However, of over 400 teachers who applied to HISD between March 1, 1996
and July 31, 1997, only 14 of these teachers who were hired had an UTPIG score
of
less than 11. (Defendant's Exh. 35). For all of the 14 teachers hired with
less than a passing score, a principal had specifically requested that teacher
(Defendant's Exh. 34).

1. I was trained by HISD in its first Alternative Certification Program.
2. I was trained specifically for certification as an ESL teacher.
3. I was in the group of 150 that completed the entire program in which over
400 had originally entered. The Program was run by Martha Wong.
4. I passed all ExCET exams - state exams for certifications.
5. I scored in the upper 90 percentiles on all three sections of the
National Teachers Exam. This important document was left out of the
exhibits by my attorney. Every time I would bring up the issue of
amending the exhibit list to include the NTE, I was told there were
other ways to introduce the information. This did NOT happen.
6. HISD hired teachers who scored less than I on the UTPIG.
7. HISD admitted in trial it did not follow guidelines published by the
Gallup Organization for administering the UTPIG. The HISD interviewer
administered the UTPIG AFTER she had information of my NHL and medical
leave. She did not mention the "questions" she was going to ask me
were oral interview questions that would be scored.
8. When administered the exact test 15 monts later by Fort Bend ISD,
I scored an "18" which is "highly recommended."
9. Fort Bend ISD and Spring Branch ISD - two of the better school districts
in the Houston Metro area wanted to hire me. HISD and Galveston would
not provide references. In fact, Bilton return reference forms I sent
her for the other districts in a school envelope addressed to "occupant."
10. I had in my possession three (3) highly complimentary letters of
reference - including two from principals, including Bilton, I had worked
for in HISD.
11. I have never received an evaluation scored less than "exceeding
expectations."
12. I had worked successfully in an urban school setting for 8.5 years with
a record of such - yet by Gallup standards in HISD's case, I'm not a good
prospect for teaching in an Urban School setting.
13. HISD requires a DPS investigation. When I returned from Albuquerque in
NOV96,
I applied for a new Texas driver's license. A requirement for the license
was disclosure of any hospitalizations within the last 3 years. While dis-
cussing this with the DPS clerk, eventually my full-blown AIDS and current
HIV status were in the DPS data bank.
14. HISD requires a TB test. My oncologist at the VAMC sent a letter on her
letterhead "hematology/oncology" section to say my chest x-rays show no
sign of active tuberculosis. I mailed this letter to Jo Nell Drayden as
I was told to do by Doris Bilton. In my cover letter, I specifically
noted that I understood Drayden was holding my file for Bilton and if any
more information was needed to please advise me. 25 days after that, I
received the rejection letter from HISD.]

9. HISD maintains that it did not hire Plaintiff for two reasons: (1) he
scored too low on the UTPIG; and (2) he failed to provide complete and accurate
information on his application for employment. During the course of the EEOC
investigation, HISD's only articulated reason for failing to hire Plaintiff was
because he scored low on the UTPIG. Only after Plaintiff sued HISD, did it
proffer an additional reason it filed to hire Plaintiff. HISD asserted that
Plaintiff omitted or misrepresented material information on his application for
employment.

10. Although Plaintiff alleges, and the Court agrees, that the
administration of the test is less than objective, there is no evidence that the
subjective administration of the test was related in any way to Plaintiff's
disclosure that he had previously had cancer from which he had recovered.

11. Despite the nature of the test, there is no evidence that HISD's
articulated reason for failing to hire Plaintiff because he scored too low on
the UTPIG is merely pretextual.


12. Plaintiff did not omit or misrepresent material information on his
application for employment. During his employment interview with Ann Bradford,
Plaintiff disclosed that he worked for Albuquerque Public School [MC: sic] for
only a month before taking a prolonged medical leave. There was nothing in the
application materials that required him to list his principal as opposed to
another supervisor of his choice.

13. Because the Court finds that Defendant has articulated one legitimate
non-discriminatory reason for not hiring Plaintiff, the score on the
standardized test, and the reason is not pretextual, the Court need not address
the issue of damages or the mitigation of those damages.

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II. Conclusions of Law

1. The Americans with Disabilities Act ("ADA") prohibits discrimination in
employment against persons with disabilities, perceived disabilities, or
histories of impairment, providing that "[n]o covered entity shall discriminate
against a qualified individual with a disability because of the disability of
such individual in regard to ...terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a).

2. The Texas Commission on Human Rights Act ("TCHRA") is interpreted
analogously to Title VII and the ADA. See Cervantez v. Bexar Country Civil
Service Comm'n, 99F.3d 730, 734 n.6 (5th Cir. 1996); Patton v. United Parcel
Service, Inc., 910F.Supp. 1250, 1270 (S.D.Tex.1995).

3. In order to succeed on a claim under the ADA, the plaintiff must prove
by
a preponderance of the evidence the elements of a 'prima facie' case of
disability
discrimination, as the court of Appeals for the Fifth Circuit outlined in Rizzo
v. Children's World Learning Centers, Inc. case: (1) he has a disability; (2) he
is an otherwise qualified employee; and (3) he suffered an adverse employment
decision solely because of his disability. 173 F.3d 254, 260 (5th Cir. 1999).

4. A disability under the ADA is "a physical or mental impairment that
substantially limits one or more of the major life activities of the
individual."
42 U.S.C. § 12102(2). The regulations define "major life activities" to "mean
functions such as caring for oneself, performing menial tasks, walking, seeing,
hearing, speaking, breathing, earning, and working." 29 C.F.R. § 1630.2(1).


5. A person is "substantially limited" in the performance of such
activities if he is "restricted as to the conditions, manner, or duration under
which (these major life activities) can be performed in comparison to most
people." 29 C.F.R. Pt. 36, App B § 36.104. Whether an impairment "substantially
limits" a "major life activity" is determined by considering: "1) the nature and
severity of the impairment; 2) its duration or expected duration; and 3) its
permanent or expected permanent or long-term impact." 29 C.F.R. § 1630, App.,
§1630.2(j).

6. Asymptomatic HIV infection satisfies the statutory and regulatory
definition of a physical impairment "from the moment of infection." Bragdon v.
Abbot, 18 § S.Ct. 2196, 2204 (1998).

7. The commentary accompanying the ADA implementing regulations contains a
representative list of disorders and conditions constituting disabilities
including 'such diseases and conditions as...cancer..42 FED. Reg. 22685 (1977),
reprinted in 45 CFR pt. 84, App.A, p. 334 (1977).

8. Plaintiff was disabled under the ADA due to his cancer history. The
actual effects of Plaintiff's cancer were severe and life-threatening over
several months and involved major surgery and hospice care. Plaintiff was
unable to work or care for himself during his illness. Consequently, Plaintiff's
non-Hodgkins lymphoma qualifies as a record of impairment which "substantially
limited a major life activity." See EEOC v. R.J. Gallagher Co., 181 F.3d 645,
655 (5th Cir. 1999).

9. Next, an ADA plaintiff must show that although he is disabled, he is
otherwise qualified for a particular position, despite the disability, he can
still perform the essential functions of the job with or without reasonable
accommodations. 42 U.S.C. § 12111 (8); Chandler v. City of Dallas, 2 F.3d 1385,
1393-94 (5th Cir. 1993).

10. The essential functions of a position include the basic, fundamental
duties of the job; the marginal duties associated with the position are not
taken into account in determining a disabled employee's qualifications 29 C.F.C.
§ 160.2(n). See also Chiari v. City of League City, 920 F.2d 311, 315-18 (5th
Cir. 1991). The employee has the burden of proving that he can perform all the
essential elements of his job, with or without accommodation. Rizzo 84 F.3d at
763.

11. A plaintiff's representation to the Social Security Administration
("SSA") that he is totally disabled does not inherently conflict with his
assertion that he can perform the essential functions of his job within the
meaning of the ADA. Cleveland v. Policy Mgm't Sys. Corp 119 S.Ct. 1597, 1601
(1999)....

Nor does the apparent conflict create a negative presumption. Id. The
Supreme Court examined the different contexts in which a representation of
disability is made for the purposes of Social Security benefits and an
ADA claim. The Supreme Court found, inter alia, that because
the SSA five-step procedure for assessing disability claim is simplified, it
"eliminat(es) consideration of many differences potentially relevant to an
individual's ability to perform a particular job." Id. Accordingly, it
concluded that an individual might qualify for disability benefits under the
SSA's administrative rules, and yet, due to special individual circumstances,
"remain capable of perform(ing) the essentials functions of her job." id. At
1603. The court went on to find that an ADA plaintiff must "proffer a
sufficient explanation" for the apparent contradiction. Id. The "explanation
must be sufficient to warrant a reasonable juror's concluding that, assuming the
truth, or the plaintiff's good faith belief in, the earlier state (to the SSA),
the plaintiff could nonetheless perform the essential functions of her job, with
or without "reasonable accommodation." Id. at 1604.

12. Plaintiff 'fully recovered" from his cancer and was released to return
to work prior to making application to HISD. He was, therefore, able to perform
all essential functions of a teaching position. Because he was able to perform
all essential functions of his job, he was otherwise qualified for the position
under the ADA.

13. A person alleging discriminatory treatment bears the initial burden of
establishing a 'prima facie' case of discrimination. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).

14. A plaintiff may use either direct or circumstantial evidence to prove a
case of intentional discrimination. Portis v. First Nat'l Bank of New Albany,
34 F.325, 28 (5th Cir. 1994).

15. In order to establish a 'prima facie' case of discrimination, the
plaintiff must show that he suffered an adverse employment action. "To
constitute a cognizable adverse employment action, an action must be an ultimate
employment decision." Skimner v. Brown, 951 F.Supp. 1307, 1316 n.9, aff'd, 134
F.3d 368 (5th Cir. 1997)(citing Dokis [?] v. Ruben, 77 F3d 777, 781,
(5th Cir. 1995). "'Ultimate employment decisions' include acts such as hiring,
granting leave, discharging, promoting, and compensating.'"
Mattern v. Eastman Kodak Co., 104 3d. 702, 707.

16. In the context of the ADA, the plaintiff must show not only that he
suffered an adverse employment action, but also that he suffered an adverse
employment [MC: sic] solely because of his disability. Rizzo, 84 F.3d at 762
(emphasis supplied).

17. Plaintiff suffered an adverse employment action when HISD failed to
hire him. However, Plaintiff is unable to show that HISD took this action
solely because of either of his disabilities. With respect to Plaintiff's
HIV/AIDS discrimination claim, Plaintiff is unable to show that HISD knew he was
HIV-positive. Without such knowledge, Plaintiff cannot demonstrate that HISD
discriminated against him because he was HIV-positive. See Hall v. Thomas, 190
F. ed 693, 696 (5th Cir. 1999) ("[A]ny alleged discriminatory conduct could not
have been 'because of [plaintiff]'s disability, since the relevant actors were
not apprised of [plaintiff]'s status as a disabled person.")

18. With respect to discrimination on the basis of his history of cancer,
Plaintiff's claim similarly fails. Plaintiff has demonstrated that the UTPIG is
subjective and may be a poor indicator of a teacher's success in an urban school
district. He has shown that HISD knew of his cancer status. However, Plaintiff
has not shown that it was administered unfairly or that HISD deprived him of a
teaching position because of his cancer status. [MC: Judge ignores the high
score from Fort Bend ISD. Judge ignores facts presented in court and admitted
by HISD that the test was NOT properly administered. Judge also ignores the
hundreds of teaching vacancies staff by long-term, non-degreed, non-certified
people, including those with only high school diplomas.]

19. As a result of Plaintiff's score on the UTPIG, the only way, according
to HISD's policies, that he could be hired is if a principal specifically
requested that he be hired. While Doris Bilton was interested in hiring
Plaintiff, she did not have an opening in her school for which Plaintiff was
qualified to teach. No principal requested Plaintiff. Plaintiff cannot show
that he was treated differently from other similarly situated applicants

20. Even for critical staffing needs at HISD, a specific request from the
principal was required to hire a teacher with a low UTPIG score. Each of the
full-time teachers with low UTPIG score who HISD hired received the position as
a result of a specific request from a principal. For the period in which
Plaintiff was applying there were at least 45 teachers with low UTPIG scores who
were not hired. (Defendant's Exh. 59). Many of these applicants, like
Plaintiff, were certified to teach in areas in critical need of staffing, such
as bilingual education. Many other applicants even had passing or high UTPIG
scores and were nevertheless not hired by HISD.

21. While in an era of teacher shortages it may not make sense to refuse to
hire certified teachers with low UTPIG scores without a principal's request,
this is insufficient to demonstrate that Plaintiff was discriminated against
because he had cancer. It is not for the Court to determine the wisdom of
internal school districts policies...

[MC: This has got to be the best line in the entire judgment...."not for the
Court to determine the wisdom of internal school districts policies." That's
what federal judges do - they determine if the law has been broken. To say it
is not for the court to determine the wisdom...is absurd in my opinion.]

HISD followed its hiring policies and did not make selective exceptions for
other low-scoring applicants.


Plaintiff has not demonstrated that HISD failed to hire him solely because of
his disability. Consequently, Plaintiff has failed to make his 'prima facie'
case for discrimination under the ADA.

22. Under the second part of the McDonnell Douglas burden-shifting test, if
the plaintiff can establish a 'prima facie' case of employment discrimination,
the burden then shifts to the defendant to provide legitimate,
non-discriminatory reasons for the discharge. McDonnell Douglas, 93 A.Ct at
1824. Under the McDonnell Douglas burden-shifting framework, the employer must
articulate legitimate nondiscriminatory reasons for the discharge. "This burden
is one of production, not of proof." Kirby v. Chief Auto Parts, Inc. 1999 WL
135261 *(N.D. Tex. Mar. 4, 1999). Accordingly, "[t]he defendant need not
persuade the court that it was actually motivated by the proffered reasons.

23. Even assuming that Plaintiff had made a 'prima facie' case of
discrimination, HISD has articulated a legitimate non-discriminatory reason for
not hiring him. HISD claims that Plaintiff was not hired because he received a
low score on the UTPIG.

24. Once the defendant has articulated legitimate non-discriminatory
reasons for the discharge, the plaintiff's 'prima facie' case drops away and the
plaintiff must prove that the defendant's proffered reasons were pretextual.
St. Mary's, 113 S. Ct. at 2747. "To show that the defendant's proffered reason
was a pretext for discrimination, however, [the plaintiff] must offer evidence
not only that the defendant's proffered reason was false, but also that
discrimination was the real reason for the defendant's action."
Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 298 n.22 (5th Cir. 1994);
see also St. Mary's, 113 S. Ct. at 2747-48.

25. Because HISD treated all low-scoring applicants equally, requiring a
principal request before hiring, Plaintiff cannot show that HISD's decision not
to hire him was actually motivated by discrimination against him on the basis of
his cancer history. A plaintiff's subjective belief that an adverse employment
action was discriminatory is not sufficient to establish a claim of unlawful
discrimination. See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1164 (5th
Cir. 1993).

26. Accordingly, this Court finds that Plaintiff has not demonstrated by a
preponderance of the evidence that HISD discriminated against him because of his
cancer history or because of his HIV status.

The Clerk shall enter this Order and provide a copy to all parties.

SIGNED this 7th day of December, 1999, at Houston, Texas

VANESSA D. GILMORE
UNITED STATES DISTRICT JUDGE

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