Ayala v. PayPal, Inc.

Filing 39

MEMORANDUM AND ORDER - IT IS ORDERED that: The defendant's motion for summary judgment (Filing No. 25 ) is granted. A judgment of dismissal will issue this date. Ordered by Senior Judge Joseph F. Bataillon. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

CHASSIDY A. AYALA, an individual;
Plaintiff,

8:16CV57

v.
MEMORANDUM AND ORDER
PAYPAL, INC., a Delaware corporation;
Defendant.

This matter is before the court on the defendant’s motion for summary judgment,
Filing No. 25. This is an action for discrimination in employment brought pursuant to
Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101 et seq. The plaintiff
alleges she was subjected to a hostile work environment by reason of her disability.
I.

BACKGROUND
The following facts are gleaned, in part, from the parties’ briefs and submissions

and are not meaningfully disputed.

In October of 2006, PayPal hired Ayala as a

Resolution Services Agent. Her job duties included answering customer phone calls
and solving problems customers had with their PayPal accounts. Ayala was an at-will
employee. At all times relevant to this lawsuit, PayPal was a subsidiary of eBay Inc.
Ayala held various positions with PayPal until January of 2011 when she became
a Dispute Resolution Specialist.

Ayala held the position of a Dispute Resolution

Specialist until December 2014.

During her orientation and employment, Ayala

received and reviewed PayPal’s policies, including its Equal Employment Opportunity
("EEO") Policy and its Discrimination and Harassment-Free Workplace Policy. Ayala
also signed an Electronic Monitoring Acknowledgment Form, which informed her that

PayPal could monitor and record her computer usage at work. Ayala was also familiar
with PayPal's Attendance Policy.
By January of 2012, Emily Heldridge ("Heldridge") was Ayala's supervisor during
most of the time at issue, except for a period of time between March 2013 and
September 2013, when Chris Smith ("Smith") temporarily managed Ayala's team while
Heldridge assisted a different team. In late 2014, Heldridge transferred to a different
position and Jenny Nelson became her supervisor.
In March or April of 2013, Ayala complained to Heldridge’s supervisor, Sue
Hogle, that she was being treated unfairly by Heldridge. In May of 2013, Ayala wrote a
comment about Heldridge on an anonymous survey that all employees are asked to
complete. Ayala indicated that Heldridge did not treat everyone fairly and had favorite
employees. Ayala testified that George Ramirez, a former PayPal supervisor, later told
her that the anonymous surveys are not anonymous.
Ayala received three disciplinary memos in November of 2013. She reported to
Human Resources through PayPal’s automated system, MyHR, that Heldridge had
retaliated against her for the negative comments made in the May 2013 anonymous
survey. Ayala complained to Human Resources that Heldridge commented about the
slow speed at which Ayala read e-mails, stated that Ayala did not perform like a regular
team member, and was generally rude. Ayala characterized Heldridge’s comments and
demeanor as condescending and demeaning. Ayala informed Human Resources "I am
being retaliated against for comments I made on a survey."
The record shows Ayala has been medically diagnosed with anxiety, Attention
Deficit Hyperactivity Disorder (“ADHD”), Post-traumatic Stress Disorder (“PTSD”), and
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Depression. Ayala testified that she informed Heldridge that she had ADHD in 2011
and notified PayPal’s human resources department (the MyHR group) of her disability
and its impact on her life in September 2014.
She stated in her deposition that she attributed Heldridge’s conduct in connection
with the November 2013 corrective actions to Ayala’s ADHD disability, but there is no
evidence that Ayala told either Heldridge or the human resources department that she
thought the comments referred to her ADHD at the time of the 2013 incidents. Shortly
thereafter, in December 2013, Ayala requested leave for treatment for depression and
anxiety.

She reported she needed the time off because she was going through a

divorce, her daughter had attempted suicide and she had totaled her car. She did not
report that her supervisor’s actions had caused her anxiety and depression.

After

Ayala’s twelve weeks of leave under the Family and Medical Leave Act (“FMLA”)
expired, PayPal granted Ayala an addition two-month leave of absence.
After she returned to work, Ayala was disciplined for violations of PayPal’s
attendance policy and for providing incorrect information to a customer.

Ayala

acknowledges that she committed the infractions, but contends she was unjustifiably
singled out for discipline.

She testified she was subjected to more reviews of her

telephone conversations than other employees and, unlike other employees, was
required to go through all of her old tickets and log her time.

Other than Ayala’s

testimony, there is no evidence that other employees were treated differently.
Ayala again complained to MyHR, without mentioning ADHD or any form of
discrimination. The record shows Ayala was advised to contact the company’s short
term disability insurer or employee assistance program if she had a health condition that
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was affecting her ability to come to work and to perform the functions of her job.
PayPal’s records indicate that Ayala stated that an ideal resolution would be for
Heldridge to “be nice” to Ayala.
In the Fall of 2014, Heldridge transferred to another position and Jenny Nelson
became Ayala’s supervisor. She was again counselled and disciplined for unexcused
absences. The record shows Ayala had received nine written warnings in eighteen
months from three different supervisors.

PayPal produced evidence that, over the

course of her employment, Ayala received numerous written warnings, conversation
memos, corrective counselling memos, and disciplinary actions for such infractions as
inappropriate email, improper cell phone use, low productivity, misappropriation of time
(improper internet use), and attendance violations.
Ayala faced another corrective action due to absenteeism in December 2014.
Ayala testified that her supervisor, Jenny Nelson, told her she would not be fired at that
time and would be given another chance, but if she missed one more day, Ayala would
be terminated. Ayala testified that at that point she told Nelson that she could not take it
anymore and resigned from employment.
On September 22, 2014, Ayala filed a claim of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging one charge—that she had
been subjected to harassment and a hostile work environment on the basis of her
disability or perceived disability. Although she had been diagnosed with Depression
and PTSD, her complaint of discrimination was based only on ADHD.
II.

LAW

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Summary judgment should 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.” Fed. R. Civ. P. 56. “Summary judgment is appropriate when, construing
the evidence most favorably to the nonmoving party, there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.” Crozier v.
Wint, 736 F.3d 1134, 1136 (8th Cir. 2013). Summary Judgment is not disfavored and is
designed for every action. Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th
Cir. 2012).

In reviewing a motion for summary judgment, the court will view “all

evidence and mak[e] all reasonable inferences in the light most favorable to the
nonmoving party.” Inechien v. Nichols Aluminum, LLC, 728 F.3d 816, 819 (8th Cir.
2013). Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the evidence are jury functions, not those of a judge.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)) (en banc). But the
nonmovant must do more than simply show that there is some metaphysical doubt as to
the material facts. Id.; see Briscoe, 690 F.3d at 1011 (stating that the nonmoving party
must come forward with specific facts showing that there is a genuine issue for trial).
Where the nonmoving party will bear the burden of proof at trial on a dispositive
issue, the moving party need not negate the nonmoving party's claims by showing “the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). Instead, “the burden on the moving party may be discharged by ‘showing’ .
. . that there is an absence of evidence to support the nonmoving party's case.” Id. In
response to the movant's showing, the nonmoving party's burden is to produce specific
facts demonstrating “‘a genuine issue of material fact’ such that [its] claim should
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proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
The existence of a mere scintilla of evidence in support of the nonmovant's position will
be insufficient; there must be evidence on which the jury could conceivably find for the
nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir.
2011); see Quinn v. St. Louis Cty., 653 F.3d 745, 751 (8th Cir. 2011) (stating “‘[T]he
mere existence of some alleged factual dispute between the parties’” will not defeat an
otherwise properly supported motion for summary judgment) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial. Torgerson, 643 F.3d at 1042.
Prior to filing a civil action alleging violations of the ADA or the ADEA, a plaintiff
must exhaust her administrative remedies by submitting her discrimination claims in an
EEOC charge and receiving a “right to sue” letter. See, e.g., 42 U.S.C. § 12117(a)
(stating that the remedies and procedures set forth in Title VII, including those
pertaining to exhaustion, apply to persons alleging discrimination based on disability);
42 U.S.C. § 2000e–5 (stating that a person may bring a Title VII action in federal court
after filing a charge of discrimination and receiving a right to sue notice); Parisi v.
Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005) (“Exhaustion of administrative remedies
is a condition precedent to the filing of an action under the ADEA in federal court.”).
After a claimant receives a right to sue letter, he or she may file a complaint that
includes claims of employment discrimination “as broad as the scope of the EEOC

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investigation which reasonably could be expected to result from the administrative
charge.” Parisi, 400 F.3d at 585.
Hostile work environment claims of disability-based harassment are cognizable
under the Americans with Disabilities Act (ADA). Ryan v. Capital Contractors, Inc., 679
F.3d 772, 778 (8th Cir. 2012); Shaver v. Indep. Stave Co., 350 F.3d 716, 719 (8th Cir.
2003). To prevail on a hostile work environment claim based on disability, a plaintiff
must show “(1) she is a member of the class of people protected by the statute, (2) she
was subject to unwelcome harassment, (3) the harassment resulted from her
membership in the protected class, and (4) the harassment was severe enough to affect
the terms, conditions or privileges of her employment.” Sellers v. Deere & Co., 791
F.3d 938, 945 (8th Cir. 2015).
“[T]he harassment standards are ‘demanding.’”

Kelleher v. Wal-Mart Stores,

Inc., 817 F.3d 624, 634 (8th Cir. 2016) (quoting Arraleh v. Cty. of Ramsey, 461 F.3d
967, 979 (8th Cir. 2006)). To be actionable, harassment must be both subjectively
hostile or abusive to the victim and “severe and pervasive enough to create an
objectively hostile or abusive work environment—an environment that a reasonable
person would find hostile or abusive.” Shaver, 350 F.3d at 721 (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21-22 (1993)); see also Ryan v. Capital Contractors, Inc., 679
F.3d 772, 779 (8th Cir. 2012) (hostile work environment under ADA must be subjectively
and objectively offensive and extreme in nature).
To survive summary judgment, a plaintiff must present evidence from which a
reasonable jury could conclude that the harassment was sufficiently “severe or
pervasive” to affect a term, condition, or privilege of the plaintiff's employment. Kelleher,
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817 F.3d at 634. “‘[S]imple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions
of employment.’”

Id. (quoting Arraleh, 461 F.3d at 979).

Relevant factors for

determining whether conduct rises to the level of harassment include the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interfered with
an employee's work performance. Pye v. Nu Aire, Inc., 641 F.3d 1011, 1018 (8th Cir.
2011) (internal quotations and citations omitted). Infrequent offhand comments that
allegedly indicate a disability bias are not sufficiently severe to constitute a hostile work
environment. Sellers, 791 F.3d at 945; see EEOC v. CRST Van Expedited, Inc., 679
F.3d 657, 687 (8th Cir. 2012) (“‘[M]ore than a few isolated incidents are required’ to
support a hostile work-environment claim.”) (quoting Clearwater v. Indep. Sch. Dist. No.
166, 231 F.3d 1122, 1128 (8th Cir. 2000)).
Anti-discrimination laws do not create codes of civility in the workplace the court
does not sit as a “super-personnel” department to correct a supervisor’s “rude, abrasive,
unkind, or insensitive [conduct, which] does not come within the scope of the law.”
Shaver, 350 F.3d at 721 (finding verbal harassment including calling an employee with
epilepsy “platehead” and “stupid” did not rise to the level of harassment warranting
relief); see, e.g., Murray v. Warren Pumps, LLC, 821 F.3d 77, 87 (1st Cir. 2016) (finding
that a supervisor's conduct—making stray “snide comments” when a putatively disabled
employee was unable to perform certain tasks, and questioning of his need for time off
for medical appointments—was not sufficiently severe or pervasive so as to alter the
conditions of employment and create an abusive work environment); Rios-Jimenez v.
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Principi, 520 F.3d 31, 43 (1st Cir. 2008) (isolated offhand remarks about an employee's
alleged disability were insufficient to raise a triable issue of fact as to the employee's
claim for hostile work environment under the Rehabilitation Act).
A hostile environment caused by a factor other than a prohibited criterion is not
actionable. See Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007) (stating
that if “the charge is the creation of a working environment hostile to women, the
conduct must be the kind that makes the workplace uncomfortable for women, as
distinct from making it uncomfortable for cat lovers, for people who are disgusted by
coworkers who violate work rules by selling Avon products at work, for people offended
by adultery, for gamblers, and for fastidious people, who abhor foul language”). “If the
nature of an employee’s environment, however unpleasant, is not due to [her disability,
she] has not been the victim of . . . discrimination as a result of that environment.’”
Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1263 (10th Cir. 1998); see
also Montandon v. Farmland Indus., Inc., 116 F.3d 355, 358 (8th Cir. 1997)
(harassment must be based on protected class to be actionable); Hervey v. Cty. of
Koochiching, 527 F.3d 711, 722 (8th Cir. 2008) (assuming actions were abusive, “[the
plaintiff] must ‘prove that she was the target of harassment because of her sex and that
the offensive behavior was not merely non-actionable, vulgar behavior.’”) (quoting
Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068 (8th Cir. 2005)). “The point is
elementary: the creation of a hostile working environment is actionable . . . only when
the hostility is to a group (or specific members of a group)” whom the statute protects.
Yuknis, 481 F.3d at 554; see also Hartsell v. Duplex Products, Inc., 123 F.3d 766, 772
(4th Cir. 1997) (noting that several of the allegedly offensive comments were not related
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to the protected status); see Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 441
(1st Cir. 1997) (“Merely because a supervisor is overbearing or fellow employees
unsociable and hard to get along with, does not suffice unless underlying motives of a
sexual or gender discriminatory nature are implicated.”); Pasqua v. Metropolitan Life
Ins. Co., 101 F.3d 514, 517 (7th Cir. 1996) (office gossip about intimate relationship with
subordinate: “such rumors spread, irrespective of the truth, for any number of reasons
having nothing to do with gender discrimination”); Nair v. Nicholson, 464 F.3d 766, 767
(7th Cir. 2006) (finding no indication that hostile behavior was connected to race or
national origin).
III.

DISCUSSION
The court has reviewed the evidence and finds that the defendant’s motion for

summary judgment should be granted. The plaintiff’s only claim is for a hostile work
environment based on her ADHD disability. Ayala has presented evidence that she has
a disability and thus is a member of the class of people protected by the statute, and
that she was subject to some unwelcome treatment that could be characterized as
harassment, but she has not shown that the conduct was severe or pervasive enough to
affect the terms, conditions or privileges of her employment. Nor has she presented
evidence that the alleged harassment was due to her disability.
Even crediting Ayala’s testimony that she believed Heldridge’s comments about
the speed of reading emails, poor performance, and “making things up” referred to
Ayala’s ADHD, the court doubts that Heldridge’s conduct and statements created a
hostile work environment “severe enough to affect the terms, conditions, or privileges”
of Ayala’s employment. Ayala testified that Heldridge made several statements that
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Ayala perceived were condescending or demeaning. Even if the statements were made
in the context of the defendant having been singled out for disciplinary action, the court
finds the statements simply do not rise to the level of conduct severe enough to be
objectively perceived as creating an intolerable workplace. These comments do not rise
above the level of the sort of “rude, abrasive, unkind, or insensitive” conduct that does
not come within the scope of the law. The comments were relatively infrequent, were
not particularly severe or offensive, and were not especially humiliating or demeaning.
Heldridge’s conduct in taking corrective action against Ayala for various breaches of
company policy were justified in that Ayala admitted to the inappropriate conduct that
sparked each disciplinary measure. The court finds the conduct does not rise to the
level of harassment.
But even if it did, Ayala must show not only that the alleged harassment was
severe and pervasive, but also that she was singled out because of her disability. The
court finds an absence of proof of causation—that is, the plaintiff has not established
the connection between the alleged hostile or harassing acts and her disability. Ayala
has presented evidence that her supervisor’s management style created difficulties for
her, but there is no evidence that Heldridge’s conduct was in any way connected to
Ayala’s disability. Although Ayala testified that she perceived Heldridge’s comments on
the speed of reading e-mails and poor performance related to her ADHD disability, the
court finds no objective evidence that the statements would be so interpreted. The
comments could as easily be interpreted as ordinary managerial criticisms unrelated to
a disability.

The court is unable to interpret the comments as anything more than

offhand remarks.
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The record supports Ayala’s performance, disciplinary, and attendance
shortcomings.

She was counselled several times with respect to those issues and

never sought any accommodation of her disability. Undisputed evidence establishes
that Ayala’s contacts with the human resources department in 2013 were based on
alleged retaliation for Ayala’s comments in the May 2013 survey. The court is unable to
draw any inference that the 2013 incidents were connected in any way to Ayala’s
disability.

Ayala’s criticisms of Heldridge involved Heldridge’s management style,

personality, friendliness, and approachability, and were unrelated to any actual or
perceived statements that relate to the ADHD disability.
The record shows Ayala was thereafter granted leave to obtain treatment for
depression. Again, the record is devoid of any connection between the leave request,
Heldridge’s conduct, or Ayala’s ADHD diagnosis. At the time she requested the leave,
Ayala did not inform PayPal that any alleged harassment by Heldridge was the cause of
her problem.
In 2014, Ayala admitted to policy violations and unexcused absences. She was
disciplined for those infractions and accepted the findings of human resources
investigations into the reasons for the discipline. She has presented evidence of some
interpersonal conflict and a personality clash with Heldridge. Such evidence, however,
does not translate to discrimination based on disability. Although Ayala referred to her
ADHD diagnosis during the human resources investigative process, there is no
evidence of any improper or illegal motive for the allegedly hostile or harassing conduct.
The court is unable to draw any inference of disability discrimination from Heldridge’s
comments or actions. Ayala’s subjective perception of discomfort, embarrassment, or
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humiliation in response to her supervisor’s legitimate performance critiques does not
convert Heldridge’s conduct to disability discrimination.

Ayala has shown that she

thought Heldridge was unfriendly, unapproachable or rude, but has not shown
Heldridge’s conduct was fueled by a discriminatory animus.

In response to the

defendant’s motion, Ayala has not produced any evidence on which the jury could
conceivably find in her favor. Accordingly, the court finds the defendant has established
that it is entitled to judgment as a matter of law.
IT IS ORDERED that:
1.

The defendant’s motion for summary judgment (Filing No. 25) is granted.

2.

A judgment of dismissal will issue this date.

Dated this 8th day of June, 2017.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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