Shores v. United Continental Holdings, Inc. et al

Filing 136

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 113 Memorandum and Recommendations, granting in party and over-ruling in part 121 Motion to Strike and Objections, denying 131 Appeal of Magistrate Decision and 133 Supplement. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
September 27, 2016

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

SUNNY SHORES,

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Plaintiff,
v.

UNITED CONTINENTAL HOLDINGS,
INC., et al. ,
Defendants.

David J. Bradley, Clerk

CIVIL ACTION NO. H-13-2745

ORDER ON EVIDENTIARY RULINGS AND ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION

Pending before the court are "Plaintiff's Appeal of Order
(Doc. 114) Dated July 19, 2016, Granting in Part, and Denying in
Part, Defendant's Motion to Strike and Objections to Plaintiff's
Motion for Summary Judgment Evidence and Request for Expedited
Consideration"
No.

121);

("Plaintiff's

"Judge

Simeon

Appeal

Lake

of

of

(Docket

Order")

Magistrate

Judge

Entry

Johnson's

Memorandum and Recommendation on Defendant's Motion for Summary
Judgment Plaintiff's Appeal to U.S. District Court"
No. 131); and "Supplement to Doc. 113"

(Docket Entry No. 133).

The court has reviewed Plaintiff's filings,
Judge's

Order

dated

July

19,

2016,

(Docket Entry

the

the Magistrate

Magistrate

Judge's

Memorandum and Recommendation (Docket Entry No. 113), as well as
Defendant

United Airlines,

Inc.'s

Response

to

Plaintiff

Sunny

Shores's Objections to Magistrate Judge's Order Granting in Part

Defendant's Motion to Strike Plaintiff's Summary Judgment Evidence
(Docket

Entry

Response

to

No.

124)

Plaintiff

and

Defendant

Sunny Shores's

United Airlines,
Objections

to

Inc. 's

Magistrate

Judge's Order Granting Defendant's Motion for Summary Judgment
(Docket Entry No. 134).
Plaintiff's

Appeal of Order (Doc. 114) Dated July 19, 2016,

Granting in Part, and Denying in Part, Defendant's Motion to Strike
and Objections to Plaintiff's Motion for Summary Judgment Evidence
and Request for Expedited Consideration (Docket Entry No. 121) is
GRANTED IN PART and OVERRULED IN PART as explained below.

In her response to Defendant's motion for summary judgment,
Plaintiff

attached

Defendant's

responses

to

her

requests

for

admission but failed to attach "Exhibit P," the documents to which
the admissions were directed (See Plaintiff Sunny Shores' Response
in Opposition

to

Summary Judgment

Defendant

United Airlines,

Inc's

Motion

("Plaintiff's Response"), Docket Entry No.

for
94,;

Defendant's Admissions, Exhibit A to Plaintiff's Response, Docket
Entry No.

94-1.).

In her July 19,

2016,

Order

(Docket Entry

No. 114) the Magistrate Judge refused to speculate about to which
documents the requests for admissions referred.
her Appeal of Order,
Pertaining [to]

Plaintiff

filed Exhibit

Id. at 8-9.
P

In

(See Documents

Defendant's Admissions, Exhibit P to Plaintiff's

Appeal of Order, Docket Entry No. 121-6.) and requested that her
entire Statement of Facts in her response to Defendant's motion for

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summary judgment be deemed as admissible evidence.

However, many

of the requests for admission did not seek admissions of fact, were
objected

to

by

Defendant,

or

reflected

Plaintiff's

legal

contentions or factual arguments (Defendant's Admissions, Exhibit A
to Plaintiff's Response, Docket Entry No. 94-1).

The court will

consider those admissions to which the Magistrate Judge did not
consider other objections asserted by Defendant, with the further
qualification that the court will only consider admitted facts, not
legal argument.
Plaintiff
respect

to

Response,

Docket

pages

Opportunity
Compliance
outlined

objects

to

Entry

2-6,

Commission

a

discrimination.

Magistrate
94-2,

No.
letter

("EEOC")

Representative,
Defendant's

the

Robin

response

to

Exhibit
the

from

B

U.S.

to

Equal

Defendant's

Hoornstra
to

Judge's

ruling

Plaintiff's
Employment
Senior

( "Hoornstra") ,

Plaintiff's

with

EEO
that

charge

of

The Magistrate Judge struck these pages because

statements contained therein were made during an EEOC conciliation
process and were confidential (Order, Docket Entry No. 114, p. 2
n.1).

The Magistrate Judge also struck Docket Entry No.

94-2,

Exhibit B to Plaintiff's Response, page 23, as the second page of
an undated letter from Hoornstra to an unidentified person.

Id. at

3.

letter

Plaintiff has

now supplied the

front

page of

that

(Exhibit B to Plaintiff's Appeal of Order, Docket Entry No. 121-2,
p. 14 [which Plaintiff labels as p. 23A]), which shows that it was

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sent by Hoornstra to the U.S. Department of Labor on September 7,
2012, in connection with Plaintiff's complaint that Defendant had
violated the Family Medical Leave Act ("FMLA").

Plaintiff argues

that the court should consider Defendant's statements to the EEOC
in light of Defendant's contradictory statements to the Department
of Labor.

Plaintiff has not shown that Defendant's statement to

the EEOC was otherwise admissible.

However, even if the court were

to conclude that pages 2-6 were admissible, the court has reviewed
both statements and, despite Plaintiff's general complaint that the
statements are inconsistent, could not discern any inconsistency.
Plaintiff's objection is OVERRULED.
Plaintiff objects to the Magistrate Judge's ruling concerning
Docket Entry No. 94-2, Exhibit B to Plaintiff's Response, pages 3157.

The

court

finds

that

certain

statements

by

Defendant's

employees in some documents were admissible pursuant to Federal
Rule of Evidence 801(d) (2)

but that Plaintiff and her counsel's

statements in some documents were hearsay because they were offered
for the truth of the matter asserted.

Plaintiff's objection is

OVERRULED.

Plaintiff also objects to the Magistrate Judge's ruling that
a

document

entitled

"United

Airlines

Reasonable

Process Guidelines for Managers" was inadmissible
Entry No. 114, pp. 6-7).

Accommodation
(Order, Docket

Plaintiff argues that she obtained this

document from EEOC v. United Airlines, No. 11-1774,

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(Plaintiff's

Appeal of Order, Docket Entry No. 121, pp. 4-5) a case appealed to
The document bears a docket entry

the Seventh Circuit in 2011.

number of an unidentified district court and also bears a footer
date of 06/23/03.
more

Plaintiff cannot authenticate this document and,

importantly,

dispute.
The

has

not

shown

its

relevance

to

the

present

Plaintiff's objection is OVERRULED.
Magistrate

Judge

also

struck

a

collective

bargaining

agreement on the grounds that it was unauthenticated (Order, Docket
Entry No.
this

114, p.

document

to

7).

Plaintiff argues that Defendant attached

its

second

(Plaintiff's Appeal of Order,

motion

for

summary

Docket Entry No.

121,

judgment
p.

5).

A

comparison of the documents shows that they either are not the same
document

or

Defendant's

are

different

authenticated

portions
portion

of

one

covered

larger

the

document.

FMLA

(Business

Records, Exhibit 1 to Defendant United Airlines, Inc.'s Motion for
Summary Judgment, Docket Entry No. 82-1, pp. 43-46); the portions
submitted

by

Plaintiff

concerned

personal,

medical,

parental,

military, educational, funeral, and emergency leaves of absences.
The portion of the document offered by Plaintiff cautioned:
9.

The provisions of this Agreement, including but not
limited to the provisions of this Section, are not
intended in any way to be in derogation or
diminution of the rights provided in the Family and
Medical Leave Act, 29 U.S.C. § 2601 et seq. To the
extent these contractual benefits may be determined
to be in conflict with rights or privileges granted
by the Family and Medical Leave Act, the Act shall
be controlling, and its terms shall be applied as
if they were the terms of this Agreement.
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Leaves of Absence 14-3, Exhibit C to Plaintiff's Response, Docket
Entry No. 94-3, p. 3.
this document,

Moreover, even if the court were to consider

by its terms it defers to the FMLA and does not

alter the conditions under which Defendant considered FMLA leave
requests.

Plaintiff's objection is OVERRULED.

With

regard

to

Plaintiff's

objections

to

the

Magistrate

Judge's dispositive recommendations, the court reviewed de novo the
challenged

portions

of

the

Memorandum

and

Recommendation

and

concludes that the Memorandum and Recommendation should be adopted
in its entirety.
Accordingly, Judge Simeon Lake of Magistrate Judge Johnson's
Memorandum and Recommendation on Defendant's Motion for Summary
Judgment Plaintiff's Appeal to U.S. District Court (Docket Entry
No.

131)

DENIED,

and Supplement to Doc.
and

the

Memorandum

and

113

(Docket Entry No.

Recommendation

133)

(Docket

are

Entry

No. 113) is hereby ADOPTED by the court.
SIGNED this 27th day of September, 2016,

in Houston, Texas.

UNITED STATES DISTRICT JUDGE

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