Gangotena v. Blinn College et al

Filing 40

MEMORANDUM AND ORDER granting 33 Defendant's MOTION for Summary Judgment.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SONIA MARGARITA GANGOTENA,

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Plaintiff,
VS.
BLINN COLLEGE, et al,
Defendants.

May 04, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:15-CV-3538

MEMORANDUM AND ORDER
I.
This case is again before the Court but only on the defendant’s, Blinn College, motion for
summary judgment [DE# 33].1 The claims against the defendant are brought under Title VII for
retaliation and gender discrimination. The Court has reviewed the motion but finds that the
plaintiff has failed to file a response opposing the defendant’s motion. Therefore, the Court will
take the fact that the plaintiff has failed to file a response to mean that she does not oppose the
motion. See [S.D. Tex. L.R. 7.3]. Nevertheless, the Court, in the interest of justice, will review
the defendant’s motion and arguments for merit.
II.
As stated earlier, the plaintiff has not filed a response to the defendant’s motion for
summary judgment. According to this Court’s local rules, responses to motions are due within
twenty-one days unless the time is extended. S.D. Tex. L.R. 7.3. A failure to respond is “taken
as a representation of no opposition.” S. D. Tex. L.R. 7.4. Notwithstanding the plaintiff’s failure
to file a response, summary judgment may not be awarded by default. See Hibernia Nat’l Bank
1

Previously the Court dismissed the plaintiff’s sexual harassment Title IX and 14th Amendment claims. As well,
the Court dismissed the plaintiff’s claims against Dr. Marcelo Bussiki and invited the plaintiff to amend her
pleadings if she was determined to pursue claim(s) against him. The plaintiff has failed to amend her pleadings and
failed to respond to the defendant’s motion for summary judgment.

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v. Admin. Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). “A motion for
summary judgment cannot be granted simply because there is no opposition, even if failure to
oppose violated a local rule.” Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n. 3 (5th Cir.
1995) (citing Hibernia Nat’l Bank, 776, F.2d at 1279). To this end, the defendant, as ‘[t]he
movant[,] has the burden of establishing the absence of a genuine issue of material fact and,
unless [it] has done so, the court may not grant the motion, regardless of whether any response
was filed.” See Hetzel, 50 F.3d at 362 n.3. Nevertheless, in determining whether summary
judgment is appropriate, a court may accept as undisputed the fact set forth in the motion. See
Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988) (internal citations omitted).
III.
To prevail on her discrimination claim, the plaintiff must establish that she engaged in
protected activity, activity protected by Title VII, that she suffered a materially adverse
employment action and that the protected activity caused the adverse action. See LeMaire v.
Louisiana Dep’t. of Transp., 380 F.3d 383, 388 (5th Cir. 2007). The evidence and pleadings do
not support the elements of her claim as explained hereafter.2
The evidence shows that the plaintiff was supervised by Dr. Marcelo Bussiki during the
critical times relevant to this suit. From time-to-time the plaintiff resisted his supervision and
reported various complaints about him to the president of Blinn College. Nevertheless, it was
Dr. Bussiki’s duty to instruct the plaintiff concerning duty hours and availability to students and
matters concerning the terms and conditions of her employment and compensation. However,
the plaintiff resisted Dr. Bussiki’s supervision and is said to have even ridiculed him and
eventually filed a complaint against him.

2

A more detailed statement of facts or background is on file in this case. See [DE# 17].

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In spite of these unpleasant exchanges, there is no evidence that the plaintiff suffered an
adverse employment action as a result of the formal complaint/grievance that she made against
Dr. Bussiki. The evidence shows that the plaintiff’s complaint was investigated, but found to be
unsubstantiated by the campus President. The district President and Board of Directors agreed
with his findings. During the course of these events, however, the plaintiff was assigned to
another department, yet, her contract was renewed for two years. Finally, the evidence shows
that her employment continued through 2016, even though she persisted in her numerous
complaints.
The Court finds that the plaintiff has failed to establish a prima facie case of retaliation
based on her gender. There is no comparative evidence that challenges the defendant proffer in
this regard. Even assuming that the plaintiff has succeeded in establishing a prima facie case, the
defendant has articulated a legitimate, non-retaliatory; non-discrimination reason for its decision.
Le Maire, 480 F.3d at 388; Okoye v. Univ. of Tex. Health Sci. Ctr., 245 F.3d 507, 512-13, 514
(5th Cir. 2001). And, there is no evidence contradicting its reasons.
The defendant describes the plaintiff as a “rule breaker”. She did not complete work
timely, failed to interact with her students appropriately and generally engaged in verbal conflict
with others. The evidence fails to show that the defendant’s reasons for its decision(s) were a
pretext for unlawful discrimination. Therefore, the defendant’s motion for summary judgment is
GRANTED.
It is so Ordered.
SIGNED on this 4th day of May, 2017.
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Kenneth M. Hoyt
United States District Judge

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