           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           May 13, 2008

                                     No. 07-10816                     Charles R. Fulbruge III
                                   Summary Calendar                           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. 3:05-cv-2206


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Teresa Ward Cooper (“Cooper”) appeals the district
court’s grant of summary judgment in favor of Defendant-Appellee Dallas Police
Association (“DPA”). For the following reasons, we AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Cooper is a former police officer with the Dallas Police Department
(“DPD”) and a former member of the DPA. The DPA is an employee group of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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police officers in the DPD and represents officers in all aspects of their
employment.      One of the benefits of membership is legal assistance in
administrative and criminal matters. Under the DPA’s Guidelines for Legal
Assistance, the DPA will provide members with legal representation for
administrative    appeals    of   disciplinary   actions,   DPD    administrative
investigations, and certain criminal matters. The DPA does not provide legal
assistance automatically for civil matters, but the DPA’s board, in its discretion,
may choose to grant funding for a member’s civil case.
      In April 2004, Cooper provided sworn testimony to the Texas Commission
on Human Rights regarding a fellow officer’s complaint against the DPA. The
officer claimed that the DPA had denied him legal assistance because of his race.
Cooper testified that although she had no first-hand knowledge of any
discrimination toward the officer, the DPA had previously provided her with
financial assistance for legal representation for an unlawful wage garnishment
case. The DPA learned of this testimony on August 3, 2004, as part of discovery
disclosures in that case. Unrelated to the officer’s discrimination claim, on
August 10, 2004, the DPA board considered a request from Cooper for “up to
$5,000” in legal assistance from the DPA for civil suits against the DPD. The
board authorized only $1,800 for Cooper’s legal assistance, citing an increase in
legal expenses and a budget deficit as the reasons for not approving the full
amount.
      Cooper then filed suit, alleging that the board, in denying her full request
for financial assistance, unlawfully retaliated against her for her testimony to
the Texas Commission on Human Rights, in violation of Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e. Cooper also alleged discrimination under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, claiming
that the board denied her full request because she is disabled and unable to
perform her duties as a Dallas police officer.       The district court granted

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summary judgment to the DPA on both counts, and Cooper appeals. We have
jurisdiction over the district court’s final order granting summary judgment
pursuant to 28 U.S.C. § 1291.
                        II. STANDARD OF REVIEW
      This court reviews de novo a district court’s summary judgment order.
Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005). We will
affirm the district court’s decision to grant summary judgment if “there is no
genuine issue as to any material fact and . . . the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c); see also Richardson, 434 F.3d at 332.
In conducting this inquiry, we must “consider the evidence in a light most
favorable” to Cooper, the non-moving party. Richardson, 434 F.3d at 332.
                              III. DISCUSSION
A.    Under Title VII, Cooper failed to rebut the DPA’s proffered
      nonretaliatory reason for denying her full request for legal
      assistance
      When a plaintiff asserts retaliation related to her employment but
provides only circumstantial evidence to support her claims, we invoke the
burden-shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). The plaintiff must first establish a prima facie case of retaliation
under Title VII, which has three elements: “(1) the employee engaged in [an]
activity protected by Title VII; (2) the employer took [an] adverse employment
action against the employee; and (3) a causal connection exists between that
protected activity and the adverse employment action.” Brazoria County, Tex.
v. Equal Employment Opportunity Comm’n, 391 F.3d 685, 692 (5th Cir. 2004)
(emphasis omitted) (internal quotation marks omitted).           If the plaintiff
successfully establishes a prima facie case, the burden then shifts to the
employer to provide a “legitimate, nonretaliatory reason for the adverse
employment action.” Hockman v. Westward Commc’n LLC, 407 F.3d 317, 330


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(5th Cir. 2004). If the employer asserts a nonretaliatory explanation, the
plaintiff’s prima facie case disappears, and the plaintiff must show that the
given reason is merely a pretext for retaliation. See McDonnell Douglas, 411
U.S. at 804.
       Here, the district court did not explicitly decide whether Cooper
established a prima facie case because, in any event, the DPA presented a
nonretaliatory reason for its action, and Cooper failed to rebut that reason by
showing that it is a pretext for denying her full request for legal assistance. The
DPA argues that the board denied Cooper’s full request based on concerns over
the organization’s finances.             In particular, the DPA notes that its
Secretary/Treasurer, Ron Pinkston, wrote a letter to DPA members stating that
“legal expenses have increased by nearly 50%” and that continuing this trend
will create a budget deficit of nearly $200,000. Further, the DPA presented the
affidavit of Glenn White, DPA’s president at the time, which stated that the
board was aware of the budget deficit when it voted on Cooper’s request and that
he was personally concerned about the increase in the DPA’s legal expenses.1
This evidence demonstrates that the DPA presented a legitimate, nonretaliatory
reason for denying Cooper’s full request: reining in the DPA’s spending.
       Cooper has provided no evidence whatsoever to suggest that the DPA’s
proffered reason is a mere pretext for retaliation. Indeed, the DPA notes that
at the same meeting, the board completely denied another member’s request for
legal assistance while still partially funding Cooper’s civil suit, which further
demonstrates the DPA’s restraint in providing funding. The DPA therefore
provided sufficient probative evidence concerning the fiscal state of the
organization, and Cooper’s subjective statements to the contrary are inadequate


       1
        Cooper attempts to discredit White’s affidavit by noting that as president of the board,
he could vote only if there was a tie. Regardless, White’s affidavit establishes that the board
had the DPA’s finances in mind when considering Cooper’s request.

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to call the proffered reason into question. As such, the district court did not err
in granting summary judgment to the DPA on this basis.
B.     Cooper failed to establish that she is a “qualified individual with
       a disability” under the ADA
       The ADA prohibits discrimination “against a qualified individual with a
disability because of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a).2 In turn, the ADA defines a “qualified
individual with a disability” as “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.”                          42 U.S.C.
§ 12111(8); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir.
1996).
       We need not determine if Cooper’s complaints of “extreme work related
stress and exhaustion” qualify as a disability, because, in any event, she is not
a “qualified individual with a disability.” In her original complaint, Cooper
stated that her ailments made her “unable to perform her duties as a Dallas
police officer.” Moreover, she fails to suggest any accommodations that either
the DPA or the DPD could provide to enable her to perform her duties.
Therefore, she admits that she cannot perform the essential functions of her job
(with or without reasonable acommodation), which is one of the requirements of
being a “qualified individual with a disability.” Cooper’s broad conclusory
statements on appeal that she is qualified for her position as a Dallas police
officer (but yet is still disabled) are insufficient to allow her to survive summary


       2
         We echo the district court’s observation that it seems peculiar for Cooper to assert a
claim based on the ADA against the DPA, which is not her employer. Nevertheless, we follow
the district court in choosing not to address this peculiarity because, in any event, Cooper fails
to show that she qualifies under the ADA.

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judgment. Cooper’s failure to meet the statutory definition dooms her claim
because she plainly does not qualify under the ADA. Thus, the district court did
not err in granting summary judgment to the DPA on Cooper’s ADA claims.
                             IV. CONCLUSION
       Cooper fails to show that the DPA’s proffered reason for denying her full
request for legal assistance was a pretext for retaliation. Further, Cooper fails
to demonstrate that she is a “qualified individual with a disability” under the
ADA.     Therefore, we affirm the district court’s order granting summary
judgment for the DPA.
       AFFIRMED.




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