Opinion
EP-21-CV-00131-FM
11-03-2022
LILIANA GONZALES, k/n/a LILIANA GONZALES-PITTMAN, Plaintiff, v. CHRISTINE E. WORMUTH, Secretary of the Army, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
FRANK MONTALVO UNITED STATES DISTRICT JUDGE
Before the court are “Defendant's Motion for Summary Judgment” (“Motion”) [ECF No. 54], filed May 16, 2022, by Christine E. Wormuth (“Defendant”), and “Plaintiff's Response in Opposition to Defendant's Motion and Memorandum for Summary Judgment” (“Response”) [ECF No. 56], filed June 13, 2022, by Liliana Gonzalez-Pittman (“Plaintiff”). Defendant requests the court grant summary judgment on all counts and dismiss Plaintiff's complaint in its entirety. After due consideration of the Motion, Response, Reply, and applicable law, the Motion is GRANTED.
See “Defendant's Motion for Summary Judgment” (“Mot.”) 3, ECF No. 54, filed May 16, 2022.
I. BACKGROUND
A. Factual and Procedural Background
In July 2015, Defendant hired Plaintiff as a Fire Inspector at Fort Bliss, Texas. In September 2015, Plaintiff was injured on the job when she was exposed to a chemical inhalant, which caused her to suffer from chronic bronchitis. “As a result of her disability, Plaintiff requested an accommodation to be relocated to another geographic region” since her “physicians recommended that [she] not return to Fort Bliss” given its “harmful” air quality. “Defendant failed to accommodate Plaintiff and began retaliating against [her].” This alleged retaliation consisted of “written discipline, a negative evaluation, being put on Leave Without Pay (LWOP), and terminat[ion] on July 30, 2016.”
“Amended Complaint for Employment Discrimination on the Basis of Disability and Retaliation” (“Compl.”) 2 ¶¶ 6, 10, ECF No. 27, filed Aug. 2, 2021.
Id. at 2 ¶¶ 7-9.
Id. at 2 ¶ 10.
Id. at 2 ¶ 11.
Id. at 2 ¶ 12.
Plaintiff filed her amended complaint in August 2021 asserting claims for relief based on disability discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. Defendant moved to dismiss, which the court granted with respect to Plaintiff's ADA claims and denied with respect to her Rehabilitation Act claims.Discover closed in February 2022 and Defendant moved for summary judgment.
See id. at 3.
See “Defendant's Motion to Dismiss,” ECF No. 29, filed Aug. 16, 2021; “Order on Motion to Dismiss” 8, ECF No. 41, entered Dec. 7, 2021.
See “Scheduling Order” 2, ECF No. 34, entered Sept. 14, 2021; Mot.
B. Parties' Arguments
Defendant contends Plaintiff was not subjected to disability discrimination or retaliation. Rather, Defendant contends Plaintiff was placed on light administrative work following her chemical exposure. In November 2015, her supervisor “mistaken accused [her] of being late to work, to which [she] took offense.” Shortly thereafter, she was given an evaluation which she “perceived to be negative.” She then confronted another supervisor, “yelled and cursed at him,” and claimed she was being harassed. On December 2, that supervisor “issued a written counseling to Plaintiff . . . to address her inappropriate behavior” but “cautioned her that the counseling session was not discipline.” Plaintiff stopped coming to work. On January 12, 2016, she requested a geographic transfer “alleging her medical condition was aggravated by the air quality in El Paso.” Yet the doctor's report following her chemical exposure “did not include this limitation.” Therefore, Plaintiff was offered permanent indoor office duty, but told to return to work by April 12, and warned that if she failed to do so she would be charged as Absent Without Leave (“AWOL”). “Plaintiff did not return to duty” and was therefore terminated on July 30.
Mot. at 2.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 2-3.
Id. at 3.
Id.
Plaintiff admits all these allegations. Nevertheless, she asserts Defendant discriminated and retaliated against her “by disciplining her, giv[ing] her a negative evaluation, putting her on LWOP,” “denying her request for an accommodation,” and “terminating her.” Further, Plaintiff feels her termination was a pretext since her request to be transferred was denied without an interactive discussion.
“Plaintiff's Response in Opposition to Defendant's Motion and Memorandum for Summary Judgment” (Resp.”) 1, ECF No. 56, filed June 13, 2022.
Compl. at 3.
Resp. at 8.
II. LEGAL STANDARD
Summary judgment is proper where the pleadings, discovery, and affidavits demonstrate that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A dispute over a material fact is genuine “when there is evidence sufficient for a rational trier of fact to find for the non-moving party.”
Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 323 (5th Cir. 2002) (citation omitted).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits demonstrating the absence of a genuine issue of material fact. When considering only admissible evidence in the pretrial record, the court will “view all facts in the light most favorable to the non-moving party” and draw all factual inferences in the non-movant's favor. If the moving party cannot demonstrate the absence of a genuine issue of material fact, summary judgment is inappropriate.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995).
Cheatham v. Allstate Ins. Co., 465 F.3d 578, 582 (5th Cir. 2006) (per curiam) (citation omitted).
Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
Once the moving party has met its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. The nonmoving party's burden is not satisfied with “some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” The court does not “in the absence of any proof assume that the nonmoving party could or would prove the necessary facts.” When reviewing the parties' submissions, the court does not weigh the evidence or determine the credibility of the witnesses.Once the nonmovant has had the opportunity to make this showing, summary judgment will be granted “if no reasonable juror could find for the nonmovant.”
Celotex, 477 U.S. at 324 (internal quotation marks and citation omitted).
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (internal quotation marks and citations omitted).
Id. at 1075 (emphasis removed).
Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002) (citation omitted).
Id.
III. DISCUSSION
Plaintiff asserts claims of disability discrimination and retaliation under the Section 501 of the Rehabilitation Act. Neither party contends Plaintiff failed to exhaust her administrative remedies with respect to either claim. As such, the court analyzes each in turn.
See Compl. at 1, 3; Order on Motion to Dismiss at 8 (dismissing Plaintiff's ADA claims).
A. Disability Discrimination
To establish a prima facie discrimination claim under Section 501 of the Rehabilitation Act, Plaintiff must show “(1) that [she] has a disability; (2) that [she] was qualified for the job; and (3) that [she] was subject to an adverse employment decision on account of [her] disability.” As the basis for her disability discrimination claim, Plaintiff asserts Defendant “disciplin[ed] her, [gave] her a negative evaluation, put[] her on LWOP[,] and terminat[ed] her.”
Burns v. Nielsen, 456 F.Supp.3d 807 (W.D. Tex. 2020).
Compl. at 3.
Defendant has demonstrated “the absence of a genuine issue of material fact” concerning the third element. Plaintiff was not subjected to an adverse employment decision based on her disability. Adverse employment actions “include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensation.” Therefore, only LWOP and termination can be considered under this element.
See Celotex, 477 U.S. at 323.
Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d. 818, 824 (5th Cir. 2019).
Neither of these circumstances were based on Plaintiff's disability, as shown by the following undisputed facts: Plaintiff stopped coming to work sometime in December 2015. In January 2016, she requested a geographic transfer, but, because her doctor's report did not recommend such a transfer, her request was denied; instead, Plaintiff was offered permanent indoor office duty. By April, Plaintiff still had not returned to work. Her supervisor sent her a memorandum, noting she had used 187 hours of LWOP and warning that, because her bronchitis did not prevent her from returning to office work, she would be charged as Absent Without Leave (“AWOL”) if she did not return by April 12. Plaintiff still did not return to work, and on June 17, 2016, her supervisor sent her a letter notifying her of his proposal to remove her from federal service within thirty days. “Should [she] desire additional time in which to respond to the information addressed in this letter,” she was advised to “submit such a request in writing.”There is no evidence Plaintiff responded. She was terminated on July 30.
Mot. at 2.
Id.
Id.
Id., “Memorandum for Ms. Liliana R. Gonzales, Subject: Return to Duty” 1, Ex. 26, filed May 16, 2022.
Id., “Memorandum for Ms. Liliana R. Gonzales, Subject: Notice of Proposed Removal” 1, Ex. 27, filed May 16, 2022.
Id. at 2.
Mot. at 3.
Given Defendant has met the burden on summary judgment, Plaintiff was required to go beyond the pleadings and, by her own affidavits or discovery, set forth specific facts showing a genuine issue for trial. Plaintiff's Response cites no evidence, but merely reasserts, without elaboration, that her termination was an adverse employment action.
Celotex, 477 U.S. at 324 (internal quotation marks and citation omitted).
Because Plaintiff has failed to raise a genuine issue for trial on the third element of her discrimination claim, the court need not address the first two elements. Plaintiff's discrimination claim fails, and Defendant is entitled to summary judgment on that claim.
B. Retaliation
“To establish a prima facie case of retaliation under the Rehabilitation Act, a plaintiff must show that: (1) [she] engaged in a protected activity (e.g., the filing of an EEO complaint); (2) [her] employer took an adverse employment action against [her]; and (3) a causal connection existed between the adverse employment action and the protected activity.”
Lopez-Baca v. Geren, 599 F.Supp.2d 744, 756 (W.D. Tex. 2008) (internal quotation marks and citation omitted).
Defendant concedes Plaintiff filed an EEO complaint. Furthermore, Defendant took an adverse employment action against Plaintiff by terminating her. However, Plaintiff has failed to show a causal connection between the two events. Instead, the overwhelming evidence shows Plaintiff was terminated because she failed to report to work for over seven months despite being offered a reasonable accommodation of indoor office work and despite her supervisors' attempts to correspond with Plaintiff on this issue.
Mot. at 2.
Id. at 3.
Defendant has met the burden on summary judgment, and Plaintiff has failed to raise a genuine issue for trial on the third element of her retaliation claim. That claim therefore fails, and Defendant is entitled to summary judgment.
IV. CONCLUSION
Defendant has demonstrated an absence of a genuine issue of material fact concerning Plaintiff's discrimination and retaliation claims and is therefore entitled to summary judgment on both. Accordingly, it is HEREBY ORDERED that “Defendant's Motion for Summary Judgment” [ECF No. 54] is GRANTED.