The opinion
Case: 23-10872 Document: 46-1 Page: 1 Date Filed: 04/24/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-10872
FILED
April 24, 2024
____________
Lyle W. Cayce
Rick Milteer, Clerk
Plaintiff—Appellant,
versus
Navarro County, Texas,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CV-2941
______________________________
Before Davis, Smith, and Haynes, Circuit Judges.
W. Eugene Davis, Circuit Judge:
Plaintiff-Appellant, Rick Milteer, proceeding pro se, appeals the
district court’s summary-judgment dismissal of his claims against
Defendant-Appellee, Navarro County, Texas (“the County”), alleging
failure to accommodate, discrimination, and retaliation in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.;
the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et
seq.; and the Texas Commission on Human Rights Act (“TCHRA”), Tex.
Lab. Code Ann. § 21.001 et seq. As set forth below, we determine that
the district court erred in treating the County and the Texoma High Intensity
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No. 23-10872
Drug Trafficking Area (“HIDTA”) as separate entities and in failing to
impute the actions/inactions of Lance Sumpter, Milteer’s supervisor, to the
County. Because this error impacted the district court’s analysis of Milteer’s
claims, we VACATE the district court’s judgment and REMAND for
further proceedings consistent with this opinion.
I.
Milteer is a disabled veteran who has been diagnosed with hearing loss
in both ears, cancer, a throat tumor, post-traumatic stress disorder
(“PTSD”), hypertension, and diabetes. He is also an observant African
American Messianic Jewish believer. The County hired Milteer in 2013 to
work within its Texoma HIDTA division as an Information Technology
(“IT”) manager. Milteer directly reported to Sumpter, the director of the
Texoma HIDTA.
Milteer testified by affidavit that in May 2020, while he was on sick
leave, Sumpter telephoned him. Milteer felt forced to inform Sumpter that
he was recovering from invasive throat surgery, that he was in remission for
cancer, and that he had military-service-connected disabilities, including
hearing loss and PTSD. Milteer asked Sumpter if he could remain home and
work remotely to continue recovering from his surgery and to decrease his
chances of contracting Covid-19. Sumpter denied his request to work
remotely. Milteer further testified that, between August and October 2020,
he continued to request to work remotely but that Sumpter “visibly
irritated” denied his requests.
Milteer additionally testified that, as part of his role in a national data
breach investigation, on October 17, 2020, he discovered a data file at the
Texoma HIDTA containing Personal Identifiable Information (“PII”) and
HIPPA-protected data for his wife and daughter, as well as other employees
and law enforcement personnel. “[He] also found that Sumpter may have
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been involved in the unlawful disclosure.” Milteer bought an external hard
drive to download the data from the main system, and produced a receipt
showing that he purchased the drive on that date.
Milteer further testified by affidavit that on October 26, 2020, he met
with Julie Wright, the County’s Human Resources Coordinator, and Tiffany
Richardson, the County’s IT Manager, to discuss the internal data breach of
PII. He also complained about Sumpter’s refusal to grant him
accommodations.
On October 28, 2020, two days after his meeting with Wright and
Richardson, Milteer informed Sumpter of his discovery of the data file
containing the PII and HIPPA-protected data. The next day, Milteer was
placed on administrative leave, was not permitted to go into the office, was
disconnected from all Texoma HIDTA servers, and his access to remote
login was removed.
On November 4, 2020, Milteer met with Sumpter and Keith
Raymond Brown, Deputy Director of Texoma HIDTA, to discuss the data
breach. Milteer was wearing religious garments, specifically a Tallit (prayer
shawl) and Kippah (small head covering), traditionally worn during a period
of praying and fasting, which Milteer was doing due to stress from work and
health challenges. Milteer contends that Sumpter questioned him about his
appearance; that Milteer explained he was an observant Messianic Jewish
believer; and that Sumpter told him to remove the garments “because he
thought it was disrespectful for the type of meeting that he was conducting.”
Milteer refused, and the meeting continued. However, Sumpter’s
questioning was “combative,” triggering Milteer’s PTSD symptoms.
Milteer testified that due to his PTSD and difficulty hearing, he became non-
responsive, and that he felt weak and faint. He states that he ultimately gave
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an incorrect date for the alleged data breach of October 24, when he alleges
it actually occurred on October 17, 2020.
On November 18, 2020, Milteer met with Wright again to report lack
of accommodations, religious discrimination, and retaliation. On
November 23, 2020, he filed an online charge with the Equal Employment
Opportunity Commission (“EEOC”). Approximately one month later, the
County terminated his employment. In a letter authored by Wright and dated
December 28, 2020, the County stated in pertinent part:
This letter is to inform you that as of today, December 28,
2020, we are terminating your employment with Navarro
County. Your employment is at-will, which allows the County
to end the employer-employee relationship without notice and
without reason. This decision is based wholly on the
recommendation of the Texoma HIDTA Executive Board’s
unanimous vote to terminate your employment status with
Texoma HIDTA. The Executive Board’s decision is based on
the findings of a thorough investigation of the “allegation of
data breach” made by you between the dates of October 21 and
November 30, 2020.
Wright testified by affidavit that it was her “understanding that Texoma
HIDTA terminated [Milteer’s] employment because he made false
allegations in regards to [a] purported data breach, lied during a formal
investigation into the alleged data breach, and because he was no longer
considered trustworthy by his supervisors at Texoma HIDTA.”
After receiving his right to sue letter from the EEOC, Milteer filed the
instant action against the County. He alleges that he suffered adverse
employment actions and retaliation in the form of suspension and
termination for requesting disability and religious accommodations and for
expressing his religious beliefs. He additionally asserts that the County
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denied him a reasonable accommodation and failed to engage in an interactive
process after he requested such accommodation.
II.
The County moved for summary judgment seeking dismissal of all of
Milteer’s claims. The County argued that it could not be held liable for any
of the claims raised by Milteer because it was only Milteer’s “nominal”
employer, “nothing more than an administrator that processes [his] payroll
and benefits for Texoma HIDTA.” The County further contended that it
had no authority to hire, supervise, direct, evaluate, or terminate anyone
working at the Texoma HIDTA, and that its Executive Director (Sumpter)
and its Executive Board, “none of whom are under the direction and control
of Navarro County, have such powers and responsibilities.” The County
contended that consequently, as a matter of law, it “took no adverse
employment action” against Milteer because it was not Milteer’s employer.
The County additionally argued it had no knowledge of any bona fide
religious belief, qualifying disability, requested accommodation, or protected
activity of Milteer. Because these are all essential elements of Milteer’s
claims, the County argued summary judgment in its favor was warranted.
The district court disagreed with the County’s contention that it was
only Milteer’s “nominal” employer. Specifically, the court noted the
evidence in the record showing that the County “was the entity that hired
and fired Milteer,” and that it paid his salary, withheld taxes, and provided
benefits. Additionally, the district court noted that the County represented
or appeared to represent on several occasions that it was Milteer’s employer.
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In light of this evidence, the court held that “a reasonable jury could find that
Navarro County was Milteer’s employer for purposes of his claims.” 1
The district court then applied the familiar McDonnell Douglas
burden-shifting framework for discrimination claims. 2 After assuming
Milteer established a prima facie case of discrimination, the district court
determined that the County “produced evidence of a legitimate,
nondiscriminatory reason for terminating Milteer’s employment: it was
instructed to do [so] by the Texoma HIDTA Executive Board.” The district
court next determined that Milteer was unable to come forward with
evidence establishing that this reason was pretext for religious
discrimination. 3 The court therefore granted summary judgment in favor of
the County dismissing Milteer’s discriminatory-firing claim.
As to the failure-to-accommodate claim, the district court determined
that Milteer failed to produce any evidence that he informed the County of
his disabilities or that he requested an accommodation from the County. The
district court determined that Milteer had not argued or produced evidence
that Sumpter was an employee or agent of the County or that his knowledge
could be imputed to the County. It further rejected Milteer’s argument that
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1
In other words, there were genuine issues of material fact that the County was
Milteer’s employer. See E.E.O.C. v. Methodist Hosps. of Dall., 62 F.4th 938, 943 (5th Cir.
2023) (“[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for
the nonmoving party.” (citation omitted)).
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
3
The district court raised this issue sua sponte, which (contrary to Milteer’s
contentions) it was permitted to do under Rule 56(f), as long as it gave Milteer an
opportunity to respond, which it did. See Fed. R. Civ. P. 56(f) (“After giving notice
and a reasonable time to respond, the court may: . . . (2) grant the motion [for summary
judgment] on grounds not raised by a party . . . .”).
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the County and Texoma HIDTA should be treated as the “same entity.”
Therefore, it granted summary judgment dismissing that claim.
For Milteer’s retaliation claim, the district court focused on the
causation element of the claim; that is, Milteer was required to show that he
would not have been terminated “but for” retaliation for his protected
conduct. Although Milteer pointed out that his termination occurred less
than two months after his meeting with Sumpter and the filing of his EEOC
complaint, the district court determined that the adverse action and its timing
were “explained by the fortuity of the nature of Navarro County’s being
notified that the Texoma HIDTA Executive Board had unanimously voted
to terminate Milteer’s employment and when it received that notification.”
The district court thus granted the County’s motion for summary judgment
in full, dismissing Milteer’s entire complaint. Milteer filed a timely notice of
appeal.
III.
This Court reviews the district court’s summary judgment de novo and
draws all reasonable inferences in favor of the non-moving party. 4 Under
Rule 56(a), summary judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” 5 “[A] fact is genuinely in dispute only if a
reasonable jury could return a verdict for the nonmoving party.” 6
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4
E.E.O.C., 62 F.4th at 943.
5
Fed. R. Civ. P. 56(a).
6
E.E.O.C., 62 F.4th at 943 (citation omitted).
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A.
Milteer and the County begin their appellate briefs by challenging the
district court’s determination that there is a genuine issue of material fact
that the County was Milteer’s employer. Specifically, Milteer argues that
the County and the Texoma HIDTA Executive Board should be treated as
the same entity and jointly employed him; while the County argues it is not
Milteer’s employer and the Texoma HIDTA is the only entity which should
be considered his employer. As set forth below, neither party’s argument is
completely correct, but the answer favors Milteer.
The district court’s ruling assumed that the Texoma HIDTA was an
actual entity that could be considered separate from the County. Review of
the federal statutes establishing the HIDTA program and the few cases that
have interpreted them provide that HIDTAs, such as the Texoma HIDTA,
are not entities unto themselves. Specifically, 21 U.S.C. § 1706(a)(1)
establishes within the Office of National Drug Control Policy (which is in the
Executive Office of the President) “a program to be known as the High
Intensity Drug Trafficking Areas Program.” The statute further provides
that “[t]he purpose of the Program is to reduce drug trafficking and drug
production” by, inter alia, “facilitating cooperation among Federal, State,
local, and tribal law enforcement agencies to share information and
implement coordinated enforcement activities.” 7
To be eligible to receive federal funding, each HIDTA shall be
governed by an Executive Board which must “apportion an equal number of
votes between representatives of participating Federal agencies and
representatives of participating State, local, and tribal agencies.” 8 The
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7
21 U.S.C. § 1706(a)(2)(A).
8
Id. § 1706(e)(1), (3).
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statute states that its requirements “are intended to ensure the responsible
use of Federal funds,” and that it is not “intended to create an agency
relationship between individual high intensity drug trafficking areas and the
Federal Government.” 9 Thus, under the statute, an HIDTA is not to be
considered a federal agency.
The Office of National Drug Control Policy has also issued a Program
Policy and Budget Guidance (“Guidance”) for the HIDTA Program. 10 The
Guidance states that “HIDTAs and their Executive Boards are not
considered legal entities under Federal law and generally lack the authority
to enter into contracts, hire employees, or obligate federal funds.” 11 The
Executive Boards are responsible for selecting grantees, (for example, in this
case, the County) that “provide financial management services.” 12 The
“grantees will hire employees, issue contracts, manage property, and expend
HIDTA program funds as necessary to carry out the grant activities approved
by the Executive Board.” 13
Especially pertinent to this case, the Guidance provides that the Board
shall select an individual to serve as the HIDTA Director, who “will be an
employee or contractor of a grantee and will be subject to all employment,
contracting, and other conditions established by that grantee.” 14 There are
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9
Id. § 1706(e)(4).
10 Off. of Nat’l Drug Control Pol’y, High Intensity Drug
Trafficking Areas (HIDTA) Program Policy and Budget Guidance
(2020),extension://oemmndcbldboiebfnladdacbdfmadadm/https://www.gchidta.org/ad
ministrative/documents/PPBG.pdf.
11
Id. § 5.4.
12
Id.
13
Id.
14
Id. § 5.6.
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few cases interpreting the statute establishing HIDTAs, but we note that one
court has determined that an HIDTA “is not a juridical entity capable of
being sued” and “functions at the behest, direction, and control of other
governmental agencies.” 15
In light of the statute establishing HIDTAs and the Guidance issued
by the Office of National Drug Control Policy, an HIDTA is not a legal entity
capable of employing individuals, and an HIDTA Director is specifically an
employee or contractor of a grantee. At most, an HIDTA is part of a
“federal-local partnership.” 16 As applied here, the Texoma HIDTA thus
formed a partnership with the County, and Milteer and Sumpter were
employed by the County.
Even without resort to the statute and Guidance, the summary-
judgment evidence established that the County paid the salaries of both
Sumpter and Milteer, and that neither the County alone, nor the Texoma
HIDTA Executive Board alone, could hire or fire Milteer or Sumpter. The
Board made the recommendation to the County to terminate Milteer’s
employment, but it had no authority to officially fire him. The County sent
out the official letter firing Milteer, but could only do so upon the
recommendation of the Executive Board. Sumpter’s employment worked
the same way. Based on the foregoing, we conclude that the district court
erred in considering the County and the Texoma HIDTA as separate entities.
The Texoma HIDTA is not a legal entity and, to the extent that it is, it forms
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15
Sipes v. City of Monroe, No. 11-1668, 2013 WL 1282457, at *4 (W.D. La. Mar. 28,
2013).
16
See Riviere v. Dir. of HIDTA V.I. Div., No. 2012-50, 2018 WL 1548686, at *3 (D.
Ct. V.I., Mar. 29, 2018) (describing an HIDTA as “a joint federal-local partnership
governed by an executive board composed of representatives from both federal and local
agencies”).
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a partnership with the County such that the actions and inactions of Sumpter
(Milteer’s supervisor) could be imputed to the County.
B. 17
The district court’s error impacted its analysis of Milteer’s claims.
Specifically, in applying the McDonnell Douglas burden-shifting framework
for discrimination and retaliation claims, the district court treated the County
and the Texoma HIDTA Executive Board as separate entities, and it did not
believe it could consider the actions/inactions of Sumpter in determining
whether Milteer came forward with evidence of pretext. Consequently, we
must vacate and remand the district court’s summary-judgment dismissal of
Milteer’s discrimination and retaliation claims. On remand, the district
court should treat the County and the Texoma HIDTA as a single entity and
should consider the actions/inactions of Sumpter in determining whether
Milteer has come forward with evidence establishing pretext for unlawful
discrimination and retaliation.
Regarding Milteer’s failure-to-accommodate claim, the district court
determined that Milteer failed to produce any evidence that he informed the
County of his disabilities or that he requested an accommodation from the
County. Again, because the County and the Texoma HIDTA should be
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17
We note that Milteer is proceeding pro se on appeal, and therefore liberally
construe his brief. However, even pro se parties must brief the issues in order to preserve
them for appeal. At times, it is apparent that Milteer is repeating arguments he made to
the district court (specifically his Rehabilitation Act arguments) but has not
tailored/revised them to include the proper standard of review for appeal or otherwise
made appropriate appellate arguments. To the extent that he has not appropriately revised
such arguments, we consider the arguments as not properly briefed and waived. See Grant
v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (“Although we liberally construe briefs of pro se
litigants and apply less stringent standards to parties proceeding pro se than to parties
represented by counsel, pro se parties must still brief the issues and reasonably comply with
the standards of Rule 28 [of the Federal Rules of Appellate Procedure].”).
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treated as a single entity, and because Sumpter’s knowledge, actions, and
inactions can be imputed to the County, we must also vacate and remand the
district court’s summary-judgment dismissal of Milteer’s failure-to-
accommodate claim.
IV.
For the reasons set forth above, we agree with Milteer that the district
court erred in treating the County and the Texoma HIDTA as separate
entities and in failing to impute the knowledge, actions, and inactions of
Sumpter to the County. Although we express no opinion on the ultimate
merits of Milteer’s claims, we VACATE the district court’s summary
judgment and REMAND for further proceedings consistent with this
opinion.
VACATED and REMANDED.
12