Garcia v. Penske Logistics, LLC et al
Filing
49
MEMORANDUM AND ORDER 43 MOTION for Summary Judgment (Signed by Judge Marina Garcia Marmolejo) Parties notified.(vcantu, 5)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
YVETTE GARCIA,
Plaintiff,
VS.
PENSKE LOGISTICS, LLC, et al,
Defendants.
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CIVIL ACTION NO. 5:13-CV-85
MEMORANDUM AND ORDER
On May 29, 2013, Plaintiff Yvette Garcia filed the instant action against her
former employer Defendant Penske Logistics, LLC (“Penske”), alleging that Penske
terminated her because of her sex (female) in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”); age (43) in violation of the Age Discrimination in
Employment Act (“ADEA”); disability (chronic obstructive pulmonary disease) in
violation of the Americans with Disability Act (“ADA”); and for exercising her leave
rights under the Family and Medical Leave Act (“FMLA”).1 Dkt. Nos. 1 (Original
Complaint), 5 (Amended Complaint).
Now pending before the Court is Penske’s Motion for Summary Judgment
and Memorandum of Law (Dkt. No. 43), Plaintiff’s Response (Dkt. No. 46), and
Penske’s Reply (Dkt. No. 47). Having carefully considered all of the filings, the
evidence in the record, and applicable law, the Court hereby GRANTS Defendant’s
Motion (Dkt. No. 43) for the reasons explained below.
Although Plaintiff also named Delphi as a defendant in this action, the Court dismissed the
claims against Delphi in its Order on December 1, 2014. See Dkt. No. 48.
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I. FACTS2
Plaintiff started working for Ryder at its Laredo distribution center in 1989
and remained there after Penske acquired Ryder’s Laredo operations in 2002. Dkt.
No. 46, Ex. 1, Deposition of Yvette Garcia (“Pl. Dep.”) 52:15–19; 54:2– 27; Dkt. No.
43, Ex. F, Declaration of Hector Javier Garcia (“Garcia Decl.”) ¶ 3. Penske provides
its customers with distribution, logistics, and supply chain assistance. Garcia Decl.
¶ 4. Penske has three locations in Laredo, including one on Mines Road. Id. ¶ 6.
Plaintiff worked at the Mines Road facility throughout her employment with
Penske, and her manager was Hector Javier Garcia. Id. ¶ 8. Penske serviced one
external customer out of its Mines Road location: Delphi. Id. ¶ 7. Penske and
Delphi had a contract whereby Penske was responsible for providing logistics
support and various services to Delphi. Pl. Dep. 56:1–4.
A. Plaintiff’s Positions with Penske
Plaintiff’s
first
position
with
Penske
was
as
a
Customer
Service
Representative; she was subsequently promoted to Senior Customer Service
Representative in 2006, then to Customer Service Supervisor in 2007, and then to
Customer Service Logistics Manager in 2008, where she worked primarily with
Delphi. Garcia Decl., Ex. 4 at PEN00264; Pl. Dep. 70:2–7; 71:3–5; 71:21–24.
In 2009, Delphi requested that Penske create a new Sales Account Manager
position for Plaintiff, to which Penske agreed. Pl. Dep., Ex. 13; Pl. Dep. 72:25–
73:11. This brand-new position was created solely to service Delphi and Delphi’s
The Court presents the facts in the light most favorable to Plaintiff, the non-movant. See
Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir. 2004).
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customers. Garcia Decl. ¶ 10. As part of the new position, Plaintiff reported to
Delphi’s Sales Manager Ajay Bhargava, though she continued to be paid by Penske.
Pl. Dep. 57:19–23, 72:25–73:21; Garcia Decl. ¶ 10. Although Mr. Garcia completed
performance evaluations for Plaintiff in 2006, 2007, and 2009, he did not complete
any formal evaluations for her after 2009 because she was working under Delphi
managers. Garcia Decl. ¶ 13.
B. Plaintiff’s Medical Illnesses and Absences
Since at least 2004, Plaintiff suffered from various breathing and asthma
problems that led to a diagnosis of chronic obstructive pulmonary disease, “COPD.”
Pl. Dep. 59:16–60:10.3 She also had several surgeries that included a laparascopy,
the removal of a cyst, and a tonsillectomy, after which she reportedly suffered from
a bleeding disorder, though no diagnosis was ever made. Pl. Dep. 62:3–25. As a
result of these and other illnesses, Plaintiff requested FMLA leave twenty-five
times from 2006 to 2011. Dkt. No. 43 at 17–18; Pl. Dep. Exhs. 6–11, 15–33, 50–51,
53.
Penske granted each request.
Pl. Dep. 89:11–12.
Plaintiff was never
disciplined for taking any sick leave, leave of absence, or vacation, and she was not
placed in a different job position upon returning from leave. Id. 89:14–17; 64:12–19.
Plaintiff copied Mr. Garcia on each request for time off. Pl. Dep. 89:8–10.
Plaintiff’s co-workers complained to Mr. Garcia that Plaintiff called in sick at the
last minute and that she was inaccessible during absences.
Garcia Decl. ¶ 9.
Plaintiff received a complaint about her absences from a co-worker. Pl. Dep. 69:14–
Plaintiff could not recall the date she received the COPD diagnosis or when she first
experienced symptoms of COPD, other than that the symptoms began sometime after she started
working for Ryder in 1989. Id. 60:9–21.
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16. Plaintiff informed Mr. Garcia about the complaint that she received. Pl. Dep.
69:12–23. When Mr. Garcia received such complaints, he told the complaining
individuals that Plaintiff was entitled by law to take leaves of absences under the
FMLA. Garcia Decl. ¶ 9.
Mr. Garcia told Plaintiff that her co-workers were complaining about her
working from home, Pl. Dep. 86:3–12, and Mr. Garcia told her more than once that
she was always sick, id. 36:2–5. Mr. Garcia also told others at Delphi that Plaintiff
was “sickly.” Id. 40:23–41:2; 42:17–24. When Plaintiff was first offered the sales
account position, Mr. Garcia spoke with a Delphi executive, Mark Heacox,
concerning Plaintiff and noted that she was often absent and sick. Id. 40:23–41:2;
Dkt. No. 43, Ex. B, Deposition of Mark Heacox (“Heacox Dep.”) 80:18–23.
C. Plaintiff’s Requests to Work from Home
In 2009 and 2010, Plaintiff made a number of requests to work from home for
the day. Pl. Dep. 79:13–23; Pl. Dep. Exhs. 15–27. The requests cited different
reasons, including: Plaintiff’s health, Pl. Dep. Ex. 15–17; her daughter’s health, id.
Ex. 19; “rainy weather,” id. Exhs. 23–25; and in some instances, no reason for
working from home was provided, id. Exhs. 21, 26. Plaintiff submitted the requests
to her supervisor at Delphi and to Mr. Garcia, and the requests were repeatedly
granted. Pl. Dep. 88:20–22; Pl. Dep. Exhs. 15–27. On April 13, 2010, Plaintiff’s
Delphi supervisor at the time, John Kalusniak, told Plaintiff that she could work
from home as she saw fit. Pl. Dep. Ex. 28.
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D. Delphi Employee Complaints Against Plaintiff
In the spring of 2010, Plaintiff began a romantic relationship with Mark
Heacox, Delphi’s Director of Manufacturing for the Americas. Pl. Dep. 41:23–42:2;
Heacox Dep. 23:19–21. On March 2, 2011, Delphi Investigations Manager Jarriel
Koplin received a complaint from a Delphi employee alleging that Mr. Heacox was
covering Plaintiff’s expenses for lodging, vehicles, and meals with his company
credit card, even though such expenses were not business related. Dkt. No. 43, Ex.
G, Declaration of Jarriel A. Koplin (“Koplin Decl.”) at 5. The complaint also alleged
that Plaintiff had yelled at the complainant during a telephone call, saying, “you
better do it or you will lose your job, I will let Mark Heacox know, so he will take
care of you.” Id. On March 23, 2011, Mr. Koplin received a complaint from Delphi
employee Roman Chavira describing Plaintiff as “rude and demanding.” Id. at 7.
In the complaining email, Mr. Chavira described several conversations he had with
Plaintiff in which she warned him that she would speak to Mr. Heacox and make
sure that Mr. Chavira no longer works for Delphi. Id.
Mr. Koplin also received a letter from Delphi Warehouse General Supervisor
David Mercer, signed and dated May 23, 2011, in which Mr. Mercer complained
about a “verbal beating” that he received from Plaintiff in two phone conversations,
and he observed that Plaintiff threatened to go to upper management “whenever
she encounters an answer she doesn’t like.” Id. at 8.
During the course of Delphi’s investigation, Delphi’s Audit Manager for
Mexico and Latin America, Greg Ward, sent an email to Delphi’s Laredo Plant
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Manager questioning the justification for Plaintiff’s position within Delphi. Heacox
Dep. Ex. 5 at 4; Heacox Dep. Ex. 4. Mr. Ward also alerted Mr. Garcia to the ongoing
investigation and requested information concerning Plaintiff. Garcia Decl., Ex. 4
(PEN00262).
E. Delphi’s Instruction to Remove Plaintiff from its Account
Following the investigation, on June 6, 2011, Mark Cashdollar, Delphi’s
Human Resources Director, called Mr. Heacox and informed him that Delphi’s
investigation did not uncover fraud or malfeasance on the part of Mr. Heacox,
though they did find irregularities concerning personal expenses charged to the
company credit card, for which he would forfeit a salary increase in the following
year. Heacox. Dep. 55:5–15. As to Plaintiff, Mr. Cashdollar told Mr. Heacox that
Delphi’s “corner office” had decided to move Plaintiff off the Delphi account “because
they did not like the way it looked and could lead to more questions.” Id. 55:22–24;
57:3–13; Pl. Dep. 118:18–20 (noting that “the ramifications of the investigation”
were “that I was going to be removed from that particular account”). Mr. Heacox
understood “corner office” to refer to Delphi’s President, James Spencer. Heacox
Dep. 57:12–23. One week later, Mr. Cashdollar sent an email to Mr. Garcia stating
Delphi “will no longer be requiring [Plaintiff’s] services” and instructing Mr. Garcia
to “coordinate an exit date for [Plaintiff].” Garcia Decl., Ex. 5 (PEN00315).
F. Delphi’s Rejection of Alternate Positions
After being instructed by Delphi to remove Plaintiff from its account, Mr.
Garcia contacted Penske Area Human Resource Manager Krista Buescher to find
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alternate positions for Plaintiff at Penske. Dkt. No. 43, Ex. E, Declaration of Krista
Buescher (“Buescher Decl.”) ¶¶ 5–6. Ms. Buescher and Mr. Garcia identified two
available positions for Plaintiff: a customer service representative position and a
billing clerk position. Id. ¶ 6; Garcia Decl. ¶ 22. Both positions were at the Mines
Road facility and required interaction with Delphi.
Garcia Decl. ¶ 24.
Ms.
Buescher and Mr. Garcia decided to offer the two available positions to Plaintiff and
let her choose the one she preferred. Buescher Decl. ¶ 6; Garcia Decl. ¶ 22.
On June 17, 2011, Mr. Garcia sent an email to Mr. Cashdollar listing the
open positions in Penske’s Mines Road facility and explaining that Penske intended
to offer these positions to Plaintiff. Garcia Decl. Ex. 6 (PEN00318). Mr. Cashdollar
responded on June 21, 2011 and wrote that “[m]aybe it is best just to let you know
her services are no longer required as of July 1.”
Garcia Decl., Ex. 7 at 2
(PEN00328). Ms. Buescher then wrote to Mr. Cashdollar stating that Penske would
“move forward with offering [Plaintiff] the two positions that we have available at
the Delphi location in Laredo, TX.”
Id. at 1 (PEN00327).
Minutes later, Mr.
Cashdollar wrote that “neither of the two positions in Laredo works for us – you are
free to use her with one of your other clients.” Id. Mr. Cashdollar then sent a letter
to Ms Buescher, dated June 28, 2011, “confirm[ing] Delphi’s request that Yvette
Garcia no longer be assigned to work on the Delphi account, effective immediately.”
Buescher Decl. Ex. 3.
Mr. Garcia contacted his supervisor to determine if there were openings at
Penske’s two other Laredo locations; he learned there were not. Garcia Decl. ¶ 27.
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G. Plaintiff’s Termination
On July 1, 2011, Mr. Garcia met with Plaintiff and presented her with a
letter informing her she was being discharged and also presented her with the letter
from Mr. Cashdollar instructing Penske to remove her from its account. Pl. Dep.
166:2–11; Garcia Decl. ¶ 28. Mr. Garcia then presented Plaintiff with a separation
agreement that provided for eight weeks of severance pay. Garcia Decl. ¶ 29; id.
Ex. 9. Plaintiff did not accept the agreement. Dkt. No. 43, Ex. D, Declaration of
Tracy Schrey ¶ 8.
After filing a Charge of Discrimination against Penske and Delphi with the
EEOC, Plaintiff initiated the instant action. Pl. Dep. Ex. 62.
II. LEGAL STANDARD
Summary judgment is appropriate if the moving party has shown 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(a). The initial burden is on the movant to
point to portions of the record which he believes demonstrate the absence of a
genuine dispute about a material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). A dispute about a material fact is genuine “if the evidence is such that a
reasonable [factfinder] could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When the movant would not bear the burden of proof at trial on a particular
claim, he meets his initial burden on summary judgment if he identifies an element
of the claim for which the non-movant has produced no evidence. See Skotak v.
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Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992). Once the movant has met
his initial burden, the burden then shifts to the non-movant to come forward with
“specific facts showing that there is a genuine issue for trial.” Matsushita Elect.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Although the court
draws all reasonable inferences in favor of the non-movant, the non-movant “cannot
defeat summary judgment with conclusory, unsubstantiated assertions, or ‘only a
scintilla of evidence.’” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007) (citation omitted). Conjecture and speculation also do not satisfy the
non-movant’s burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5th Cir. 1994).
III.
ANALYSIS
Plaintiff has alleged claims under Title VII, ADEA, ADA, and the FMLA.
Penske first argues that Plaintiff’s Title VII, ADEA, and ADA claims are untimely
and should not be equitably tolled. As to the remaining FMLA retaliation claim,
Penske argues that summary judgment is appropriate because there is no direct
evidence of FMLA retaliation, and Plaintiff cannot prove FMLA retaliation through
indirect evidence.
A. Title VII, ADEA, and ADA Claims
i. Plaintiff’s Title VII, ADEA, and ADA Claims are Untimely
A plaintiff alleging employment discrimination claims must exhaust
administrative remedies before pursuing her claims in federal court.
Taylor v.
Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002). “Exhaustion occurs
when the plaintiff files a timely charge with the EEOC and receives a statutory
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notice of right to sue.” Id. (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 788–89
(5th Cir. 1996)). After receiving a right-to-sue letter, a claimant alleging violations
of Title VII, the ADEA, or the ADA has ninety days to file a civil suit. See 42 U.S.C.
§ 2000e–5(f)(1) (Title VII claims); 29 U.S.C. § 626(e) (ADEA claims); Dao v. Auchan
Hypermarket, 96 F.3d 787, 788–89 (5th Cir. 1996) (noting that “the ADA
incorporates by reference the procedures applicable to actions under Title VII”
(citing 42 U.S.C. § 12117(a))).
“The ninety-day filing requirement is not a
jurisdictional prerequisite, but more akin to a statute of limitations.”
Harris v.
Boyd Tunica, Inc., 628 F.3d 237, 239 (5th Cir. 2010) (citing Espinoza v. Mo. Pac.
R.R. Co., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985)).
The requirement to file a lawsuit within the ninety-day period is, however,
“strictly construed.” Stokes v. Dolgencorp, Inc., 367 F. App’x 545, 547 (5th Cir.
2010); see also Taylor, 296 F.3d at 379 (noting that “Courts within this Circuit have
repeatedly dismissed cases in which the plaintiff did not file a complaint until after
the ninety-day limitation period had expired”). “[C]ommencement of the ninety-day
period begins to run on the day that notice is received at the address supplied to the
EEOC by the claimant.” Bowers v. Potter, 113 F. App’x. 610, 612 (5th Cir. 2004).
Here, the right-to-sue letter states that it was mailed on January 23, 2013,
(Dkt. No. 43, Deposition of Orlando Lopez (“Lopez Dep.”) Ex. 1), and an EEOC case
log reflects that it was mailed on January 24, 2013 (Dkt. No. 43, Ex. J.
(PEN00409)). The right-to-sue letter warns that the EEOC is closing its file on
Plaintiff’s discrimination charge and that any lawsuit must be filed within ninety
10
days of the notice “or [Plaintiff’s] right to sue based on this charge will be lost.”
Lopez. Dep. Ex. 1. The letter is addressed to Plaintiff “c/o Orlando Lopez,” who is
Plaintiff’s brother and the individual she appointed to represent her before the
EEOC. Id.4
Mr. Lopez testified that he could not recall the date he received the letter.
Lopez Dep. 38:23–39:5. Similarly, Plaintiff repeatedly testified that she too could
not recall the date that she received the right-to-sue letter, though she did recall
that her brother called her and informed her that the claims were dismissed. Pl.
Dep. 196:20–23; 198:15–18.
When, as here, the date of receipt of the letter is unknown, courts presume
the letter was received within three to seven days after it was mailed. Taylor, 296
F.3d at 379–80; see also Stokes v. Dolgencorp, Inc., 367 F. App’x 545, 547–48 (5th
Cir. 2010) (“When the plaintiff does not assert that she received her notice on a
specific date, we may presume that she received it between three and seven days
after it was mailed.”). Applying the most generous presumption of seven days after
mailing on January 24, 2013, Plaintiff received the letter on January 31, 2013. She
was required to file her complaint ninety days later, i.e., May 1, 2013. Because
Plaintiff’s complaint was not filed until May 29, 2013, her complaint is therefore
untimely.
Plaintiff contends that the typical five-day presumption should not apply
because there is a genuine issue of material fact concerning when she received the
Mr. Lopez testified that he was previously a federal investigator with the EEOC from
January 2009 until August 2011, at which time he became an equal opportunity specialist with the
United States Department of Housing and Urban Development. Lopez. Dep. 10:1–20.
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notice.
Dkt. No. 46 at 18–19.5
The Fifth Circuit has observed “that the
presumption is only that: a presumption. If a particular plaintiff can offer some
evidence to demonstrate that he or she did not receive the letter within the allotted
time, the presumption can certainly be overcome.” Morgan v. Potter, 489 F.3d 195,
197 n.1 (5th Cir. 2007).6 In particular, Plaintiff points to her deposition testimony
in which she suggests that she received materials “much later” later than the
January 23, 2013 date reflected on the right-to-sue letter, and she argues that this
testimony refers to the date she received the right-to-sue letters. Id. at 19 (quoting
Pl. Dep. 197:5).
However, as the following colloquy reflects, Plaintiff’s reference to documents
arriving “much later” relates to correspondence requested from the EEOC while the
investigation was still ongoing, not to a right-to-sue letter issued after the EEOC’s
investigation had concluded:
Q.
But you recall your brother calling you and telling you, Hey, Yvette, I
received these dismissals?
A.
And, actually, he didn’t call me. Somebody from the EEOC had called.
He was out of town because he travels a lot. So, he I think didn’t
receive them either until much later, too. So, I never received mine.
[. . .]
Although Plaintiff references a five-day presumption, the Court has applied the more
generous seven-day presumption and finds the filing to be nonetheless untimely. Indeed, “[i]n the
Fifth Circuit, there is a presumption that a party receives the right-to-sue notice three days after it
is mailed.” Crabtree v. Cyberonics, Inc., No. 05-CV-4221, 2006 WL 1581971, at *2 (S.D. Tex. June 7,
2006) (quoting Aportela v. Barnhart, No. 03-CV-0360-DB, 2005 WL 1958963, at *11 (W.D. Tex. Aug.
15, 2005)).
6 As one court has recognized, however, “[n]either the Fifth Circuit nor district courts within
the circuit have elaborated upon the amount or type of evidence required to rebut the presumption of
receipt.” Keel v. Wal-Mart Stores, Inc., No. 1:11-CV-248, 2012 WL 3263575, at *5 (E.D. Tex. July 17,
2012) adopted by, No. 1:11-CV-248, 2012 WL 3262882 (E.D. Tex. Aug. 9, 2012).
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Q.
. . . And so this gentleman called you on the phone to advise you -what did he tell you, the EEOC guy, when he called you?7
A.
That they were -- they were going to send me a package . . . .
Q.
Was this when the investigation was still ongoing or was this --
A.
Yes, when the investigation was still ongoing.
Q.
Okay. What this is is this is the end of the investigation. This is the
dismissal.
A.
Oh, I wasn’t aware of the dismissal until after it was already
dismissed.
Q.
And who -- how did you become aware that your EEOC charges, one
against Penske, one against Delphi, had been dismissed?
A.
My brother called me.
Id. 196:24–25; 197:1–6; 198:1–15.
Plaintiff’s argument rests upon a misreading of her own testimony quoted
above, which makes clear that she was “not familiar with dates or times.”
Id.
198:23–24; see also 199:17–22 (“Q. And this letter is dated January 23rd, 2013. I
assume it was sometime in January that you received notice from your brother that
the EEOC had done something? A. I don’t -- I don’t recall right now. I don’t know
the time, to be honest.”).
Plaintiff testified that she first became aware that her EEOC charges were
dismissed when Mr. Lopez called her on a date she could not remember. Id. 198:15–
Even if this statement does refer to receipt of the right-to-sue letter, the Court could find
that the call from the EEOC concerning the dismissal is sufficient notice. See Hunter-Reed v. City of
Houston, 244 F. Supp. 2d 733, 741–42 (S.D. Tex. 2003) (noting that “when the plaintiff receives
actual notice by other means, such as being told by an EEOC representative that a right-to-sue letter
has been issued, the ninety-day limitations period commences without regard to whether the letter is
actually received at that time”).
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24. Mr. Lopez also testified that he called her to let her know that he received the
dismissal and right-to-sue letter and told her “she has a window in which to file;
and if she doesn’t file within that window, she’ll, you know, lose her right to file.”
Lopez. Dep. 37:1–10. On that call, Mr. Lopez informed her that he had received the
dismissal letter and instructed her to call the EEOC to determine why the EEOC
decided to dismiss her claims. Pl. Dep. 199:1–4. Plaintiff then contacted the EEOC
on an unknown date and requested a packet of information pursuant to the
Freedom of Information Act. Id. 199:5–7. The EEOC then sent her the packet of
information. Id. 199:5–7.8
Plaintiff’s reliance on Smith v. Local Union 28 Sheet Metal Workers, 877 F.
Supp. 165 (S.D.N.Y. 1995) is misplaced. In that case, unlike here, the plaintiff
testified that he received the right-to-sue letters on one of two specific dates. Id. at
172. The court applied the later date, and finding that plaintiff’s Title VII claims
were still untimely even under the date proposed by plaintiff, dismissed the Title
VII claims. Id. In contrast, Plaintiff does not – and indeed, repeatedly indicates
that she cannot – approximate when she received the notice of right to sue, nor does
she indicate that she received the letter “much later” than the seven-day
presumption afforded to her by the Court. The Court finds it appropriate, therefore,
to apply the presumption of receipt, which makes Plaintiff’s suit under Title VII, the
ADEA, and ADA untimely.
Indeed, the “much later” reference, even if it could be read to concern the time that she
received the letter, only reaffirms that the date of receipt is unknown, which is the precise scenario
envisioned by the Fifth Circuit’s presumption of receipt. Taylor, 296 at 379 (presuming receipt
because plaintiff “failed to allege the specific date for which he actually received the right-to-sue
letter and the date the letter was received is unknown”).
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ii. Equitable Tolling Does Not Apply
Furthermore, Plaintiff does not argue that equitable tolling is warranted, nor
does she demonstrate that it should be applied here. Because the Fifth Circuit
treats the ninety-day period akin to a statute of limitations, “the ninety-day filing
requirement is subject to equitable tolling.” Harris, 628 F.3d at 239. The Fifth
Circuit has cautioned that “[e]quitable tolling is to be applied sparingly,” Granger v.
Aaron’s Inc., 636 F.3d 708, 712 (5th Cir. 2011) (citation omitted), and even then, it
“applies only in rare and exceptional circumstances,” Harris, 628 F. App’x at 239
(citation omitted). Plaintiff has the burden to provide justification for equitable
tolling. Wilson v. Sec'y, Dep't of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995).
The Fifth Circuit has described three non-exhaustive circumstances to justify
equitable tolling:
(1) the pendency of a suit between the same parties in the wrong
forum; (2) plaintiff's unawareness of the facts giving rise to the
claim because of the defendant’s intentional concealment of
them; and (3) the EEOC’s misleading the plaintiff about the
nature of [his] rights.
Granger, 636 F.3d at 712; see also Hood v. Sears Roebuck & Co., 168 F.3d 231, 234
(5th Cir. 1999)).
Plaintiff does not argue that any of the three situations apply. To the extent
Plaintiff contends that equitable tolling is warranted because Mr. Lopez, who
represented her during the processing of her case with the EEOC, moved at some
point during the processing and caused her notice-of-claim to be delayed, see Dkt.
No. 46 at 18–19, such argument is without merit.
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The Fifth Circuit has noted that the ninety-day period commences when
“notice is received at the address supplied to the EEOC by the claimant.” Bowers,
113 F. App’x. at 612; see also Ringgold v. Nat’l Maint. Corp., 796 F.2d 769, 770 (5th
Cir. 1986) (holding that ninety-day period runs from date of delivery to offices of
“designated counsel or to the claimant”). Plaintiff informed the EEOC that Mr.
Lopez would be acting as her representative, and she provided Mr. Lopez’s address
to the EEOC.
See Lopez Dep. 17:10–15 (“I told the EEOC I would be her
representative/adviser through the process. [. . .] I can see why she put my name
down.”). That Mr. Lopez moved during the proceedings without notifying the EEOC
does not mandate equitable tolling. See Espinoza v. Missouri Pac. R. Co., 754 F.2d
1247, 1251 (5th Cir. 1985) (“Espinoza’s position is that, simply because he was out
of town when notice arrived at his home, the equities demand tolling. We heartily
disagree.”); Crittendon v. Am. Nat’l Ins. Co., 967 F. Supp. 933, 942 (S.D. Tex. 1997)
(“Failing to provide the EEOC with a current mailing address, thus jeopardizing the
claimant’s ability to receive the EEOC’s notice of right-to-sue, represents one such
circumstance that does not justify equitable tolling.”); Griffin v. Prince William
Hosp. Corp., 716 F. Supp. 919, 921 (E.D. Va. 1989) (“[S]ensibly settled authority
confirms that the EEOC is entitled to rely on the address plaintiff furnished and to
start the running of the 90 day period by sending the right-to-sue letter to that
address.”). Moreover, the time-period is triggered when the notice is delivered, “not
when the letter is actually picked up.” Hunter-Reed, 244 F. Supp. 2d at 741 (noting
that “requiring actual pickup would allow some plaintiffs open-ended time
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extension, subject to manipulation at will”) (citations omitted).
In addition, the Fifth Circuit is “reluctant to apply equitable tolling to
situations of attorney error or neglect, because parties are bound by the acts of their
lawyer.” Granger, 636 F.3d at 712; see also Irwin, 498 U.S. at 96 (holding lawyer’s
absence from the office was “at best a garden variety claim of excusable neglect,”
and thus did not warrant equitable tolling). Although the Court recognizes that Mr.
Lopez is not a lawyer, Plaintiff has not articulated any reason why a similar
standard for garden variety neglect should not apply to someone whom she
designated to represent her in an EEOC proceeding and someone who is familiar
with the EEOC’s guidelines and procedures based on his work as an EEOC
investigator and equal opportunity specialist with HUD. See Lopez. Dep. 10; see
also Lopez. Dep. 23:14 (stating in reference to EEOC proceedings that, “I know how
the process works”); 26:22–24 (“But being a former investigator, I was hoping just
to, you know, give him some insight of why I thought this would be a good case and
try to explain to him”).
Nor has Plaintiff shown that she pursued her rights diligently. The Fifth
Circuit is “more forgiving” when a claimant and/or his attorney have “exercised due
diligence in pursuing” the claimant's rights, and the Fifth Circuit “consider[s] it
relevant whether the plaintiff took some step recognized as important by the
statute before the end of the limitations period.” Granger, 636 F.3d at 712. Here,
Mr. Lopez forwarded Plaintiff an email on August 30, 2012, in which the EEOC
warned that a notice of right-to-sue would be forthcoming and that Plaintiff will
17
then have “90 days to pursue in court if she chooses.” Pl. Dep. Ex. 68. No evidence
indicates that Plaintiff called the EEOC or Mr. Lopez to inquire about the right-tosue letter between the time that she received the August 30 email and the unknown
date that she learned that the EEOC dismissed her claims. Also, Plaintiff was
again warned about the time limit when Mr. Lopez called to inform her that he
received the right-to-sue letter and told Plaintiff, “You have a time limit with this”
and urged her to act “quickly.” Lopez. Dep. 37:23; see also id. 41:18–19 (“So when
she got the notice of right to sue, I was like, You need to jump on it.”). “One who
fails to act diligently cannot invoke equitable principles to excuse that lack of
diligence.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984).
Plaintiff has thus not met her burden to demonstrate that equitable tolling applies,
and her Title VII, ADEA, and ADA claims are hereby DISMISSED as time-barred.
B. FMLA Retaliation Claim
Penske next argues that summary judgment is appropriate for Plaintiff’s
retaliation claim under the FMLA because Plaintiff was dismissed for lawful
reasons after she took leave pursuant to the FMLA, and because Penske did not
discriminate or retaliate against her for requesting or taking such leave. Dkt. No.
43 at 12.
The FMLA prohibits employer interference with the exercise of rights
provided under the act, or employer discrimination against any individuals for
opposing a practice made unlawful under the act.
See 29 U.S.C. § 2615. This
prohibition extends to employer retaliation for the exercise of FMLA rights. See 29
18
C.F.R. § 825.220(c).
Among the rights provided by the FMLA, employees are
entitled to “reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(2); see id. §
2612(a)(1).
Plaintiff asserts that Penske’s actions were motivated by retaliatory animus
for her taking medical leave under the FMLA. The Fifth Circuit has instructed that
the approach to such claims is twofold. Ray v. United Parcel Serv., No. 13-60771, –
F. App’x –, 2014 WL 6480423, at *3 (5th Cir. Nov. 20, 2014). First, a court asks
whether the plaintiff has presented direct evidence of relation and, if not, then it
applies the McDonnell-Douglas burden-shifting framework. Id. (citing Richardson v.
Monitronics, Int'l, Inc., 434 F.3d 327, 332 (5th Cir. 2005)).
i. There is No Direct Evidence of Retaliation
In order to “constitute direct evidence at this stage of the analysis,” the
evidence “must be such that, if believed, would prove the existence of a fact (i.e.,
unlawful discrimination) without any inferences or presumptions.” Ray, 2014 WL
6480423, at *3 (quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir.
1993)).
Plaintiff acknowledges that no one at Penske told her that she was
terminated because she took FMLA leave. Pl. Dep. 174:15–19. Instead, she argues
that the comments made by her supervisor, Javier Garcia, constitute direct
evidence of retaliation under the FMLA. Plaintiff stated in her deposition that Mr.
Garcia told her more than once that she was “always sick,” Pl. Dep. 36:2–10, and
that he also told Delphi personnel that Plaintiff was “sickly and unreliable.” Id.
26:12–17; 27:5–7.
19
Comments constitute direct evidence only if the comments meet four
requirements: (1) they are related to the protected class of persons of which the
plaintiff is a member; (2) they are proximate in time to the complained-of adverse
employment decision; (3) they are made by an individual with authority over the
employment decision at issue; and (4) they relate to the employment decision at
issue. Ray, 2014 WL 6480423, at *11 (citing Rubinstein v. Adm’rs of Tulane Educ.
Fund, 218 F.3d 392, 401 (5th Cir. 2000)).
Comments failing to satisfy these
requirements are merely “stray remarks” that are independently insufficient to
prevent summary judgment. Id. (citing Jackson v. Cal–W. Packaging Corp., 602
F.3d 374, 380 (5th Cir. 2010)).
Mr. Garcia’s remarks to Plaintiff do not constitute direct evidence of
discrimination because Plaintiff has not directed the Court to when Mr. Garcia
made the remarks. See Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 380 (5th
Cir. 2010) (finding statement was not direct evidence where plaintiff “provided no
evidence that the comment was proximate in time to his firing”); Admire v. Strain,
566 F. Supp. 2d 492, 500 (E.D. La. 2008) (finding comment did not amount to direct
evidence of discrimination where “Plaintiff has not offered any evidence addressing
when [plaintiff] made the statement”). The Court also notes that “Rule 56 does not
impose upon the district court a duty to sift through the record in search of evidence
to support a party’s opposition to summary judgment.” Jackson, 602 F.3d at 379–
80.
20
Likewise, the statements that Plaintiff argues Mr. Garcia made to others are
not proximate in time.
At her deposition, Plaintiff stated that Mr. Heacox
recounted to her a conversation he had with Mr. Garcia in which Mr. Garcia stated
that Plaintiff “had an absence and a sickly condition.” Pl. Dep. 40:20–41:2. Mr.
Heacox testified that this conversation with Mr. Garcia took place in August 2008,
more than three years before Plaintiff’s termination in July 2011. Heacox Dep.
80:18–81:2; see also Pl. Dep. 49:8–16 (stating that Mr. Heacox “was given
information that I was a sickly person prior to coming on board the [Delphi] division
by Javier Garcia”).
Plaintiff also points to comments that Mr. Garcia made to
Delphi employee Carmen Dominguez prior to a promotion that Plaintiff received in
February 2007, which was nearly four-and-a-half years before Plaintiff’s
termination. Pl. Dep. 71:3–20.9
Such comments, made years before her discharge, are not proximate in time
to her complained-of adverse employment decision. See Jackson, 602 F.3d at 377
(finding comment nearly one year prior to termination was not proximate in time);
Berquist v. Wash. Mut. Bank, 500 F.3d 344, 352 (5th Cir. 2007) (determining
comment six months prior to termination was not probative of discriminatory intent
because it was “remote in time from [plaintiff's] firing”). Accordingly, the comments
are not direct evidence of retaliation because they are not proximate in time to
Plaintiff also stated at her deposition that Mr. Garcia made similar remarks to Delphi
employees Ajay Bhargava and John Kalusniak, although she could not recall when those statements
were made. Pl. Dep. 43:4–14. The Court further notes that Plaintiff makes no attempt to rebut
Penske’s argument that statements by Mr. Garcia to several Delphi employees, who then reported
the statements to Plaintiff, constitute inadmissible hearsay. Dkt. No. 43 at 17–18.
9
21
Plaintiff’s termination in July 2011, and the Court need not consider whether the
stray remarks satisfy the other elements of direct evidence.
ii. McDonnell-Douglas Analysis
As Plaintiff has presented no direct evidence of discrimination, the following
burden-shifting analysis applies. First, Plaintiff must make a prima facie showing
of FMLA retaliation. Richardson, 434 F.3d at 333. Second, if she satisfies the first
requirement, Penske “must articulate a legitimate, non-discriminatory reason for
the adverse employment action.” Id. Third, if Penske makes a sufficient showing,
Plaintiff “must offer sufficient evidence to create a genuine issue of fact” that
Penske’s proffered reason is merely a pretext for retaliation or, “although true, is
but one of the reasons for its conduct, another of which was discrimination.” Id.
Finally, if Plaintiff satisfies the third-step showing, Penske may only prevail by
proving it would have taken the adverse employment action regardless of the
discriminatory motivation; this showing “is effectively that of proving an affirmative
defense.” Id. (quoting Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir.
2005)).
a. Plaintiff Has Made a Prima Facie Showing
In order for Plaintiff to meet her initial burden of establishing an FMLA
prima facie case, she must show the following elements: (1) she was protected
under the FMLA; (2) she suffered an adverse employment action; and (3) the
adverse action was taken because she sought protection under the FMLA. Ray,
2014 WL 6480423, at *4 (citing Ion v. Chevron, 731 F.3d 379, 390 (5th Cir. 2013)).
The first two elements are undisputed, since both parties acknowledge that Plaintiff
22
took leave under the FMLA during her employment with Penske and that she
suffered an adverse employment action when she was discharged in 2011. Dkt.
Nos. 43 at 7, 46 at 16. At issue is the third element, namely whether Plaintiff has
established the necessary causal link between her FMLA leave and her discharge.10
To establish the third prong of a prima facie case of retaliation under the
FMLA, “the plaintiff does not have to show that the protected activity is the only
cause of her termination.” Mauder, 446 F.3d at 583. A plaintiff must, however,
“show that the protected activity and the adverse employment action are not
completely unrelated.” Id. (citing Medina v. Ramsey Steel Co., 238 F.3d 674, 684
(5th Cir. 2001)). This prong “is not an ultimate showing of liability, but merely
determines whether there is enough evidence to require an employer to respond.”
Ivy v. Lane Furniture Indus., Inc., No. 1:08-CV-20, 2009 WL 1663439, at *3 (N.D.
Miss. June 15, 2009); see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253-54 (1981) (observing that the burden is “not onerous” and only creates a
“presumption”). All that is required is “a causal connection between the protected
activity and the discharge.” Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th
Cir. 1999).
Although Penske initially argues that the third element is not met because Plaintiff has
failed to identify a similarly situated comparator who was treated more favorably, Dkt. No. 43 at 7,
this argument is foreclosed by Fifth Circuit precedent stating that the third element is satisfied in
the alternative by showing “either (a) she was treated less favorably than an employee who had not
taken FMLA leave, or (b) the adverse decision was made because she took FMLA leave.” Mowbray v.
Am. Gen. Life Cos., 162 F. App’x. 369, 374 (5th Cir. 2006) (emphasis supplied); see also Shryer v.
Univ. of Tex. Sw. Med. Ctr. at Dallas, No. 14-10079, – F. App’x –, 2014 WL 5315358, at *4 (5th Cir.
Oct. 16, 2014) (“To make out a prima facie case of retaliation, she must . . . establish that she was
terminated because she took FMLA leave or that she was treated less favorably than an employee
who had not requested leave”) (emphasis supplied).
10
23
As instructed by the Fifth Circuit, the Court first considers the temporal
proximity between the FMLA leave and the discharge. See Mauder, 446 F.3d at 583
(“When evaluating whether the adverse employment action was causally related to
the FMLA protection, the court shall consider the ‘temporal proximity’ between the
FMLA leave, and the termination.”).
“Close timing between an employee's
protected activity and an adverse action against him may provide the ‘causal
connection’ required to make out a prima facie case of retaliation.” Swanson v. Gen.
Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (citation omitted); see also
Evans, 246 F.3d at 354 (noting that a time lapse of four months has been held
sufficient to establish a plaintiff's prima facie case).
Here, Plaintiff took leave under the FMLA numerous times while employed
at Penske, most recently on June 24, 2011. Dkt. No. 43 at 18. She was discharged
seventeen days later on July 11, 2011.
Garcia Decl. ¶ 28.
Courts have found
similar periods of time sufficient to satisfy the causation standard.
See Miles-
Hickman v. David Powers Homes, Inc., 589 F. Supp. 2d 849, 870 (S.D. Tex. 2008)
(finding causal connection where plaintiff presented evidence that alleged
termination occurred fifteen days after request for accommodation).
In addition, Plaintiff contends that Mr. Garcia “entertained complaints about
Plaintiff’s absences from work” that were related to her illnesses and her use of
FMLA leave. Dkt. No. 46 at 17. Mr. Garcia confirmed this in his Declaration,
stating that “[w]hen Ms. Garcia took medical leave, her co-workers frequently would
complain to me about her calling out sick at the last minute and her lack of
24
accessibility during absences, and the fact that they had to fill in for her . . . .”
Garcia Decl. ¶ 9. At the very least, this demonstrates that Plaintiff’s supervisor
was aware of Plaintiff’s protected activity of taking FMLA leave.
See Smith v.
Potter, No. 10-CV-121, 2012 WL 2785893, at *6 (W.D. La. July 3, 2012) (“The Fifth
Circuit has also noted that an ‘employer’s awareness of an employee’s protected
activity might be sufficient to establish the causal link element.’”) (quoting Shannon
v. Henderson, 275 F.3d 42, 2001 WL 1223633, at *4 (5th Cir. Sept. 25, 2001)).
Accordingly, given the relatively close proximity between her discharge and
her protected activity, as well as her supervisor’s knowledge of the protected
activity, the Court finds evidence that minimally establishes the “not onerous”
causation element of Plaintiff’s prima facie case of FMLA retaliation.
b. Penske Offers Legitimate Non-Retaliatory Reasons
Because Plaintiff satisfies the first requirement, Penske “must articulate a
legitimate, non-discriminatory reason for the adverse employment action.”
Richardson, 434 F.3d at 333. In this case, Plaintiff’s position was created to service
Penske’s customer, Delphi. Pl. Dep. 72:4–73:21; Garcia Decl. ¶ 10. In the spring of
2010, Plaintiff began a romantic relationship with Mark Heacox, Delphi’s Director
of Manufacturing for the Americas. Pl. Dep. 41:23–42:2; Heacox Dep. 23:19–21. On
March 2, 2011, Delphi’s Global Investigations Manager Jarriel Kopling received a
complaint from a Delphi employee that Plaintiff was using her relationship with
Mr. Heacox to threaten and intimidate Delphi employees. Koplin Decl. 5–6. As
25
Plaintiff herself testified, “the ramifications of the investigation” were “that I was
going to be removed from that particular account.” Pl. Dep. 118:18–20.
On June 13, 2011, Mark Cashdollar, Delphi’s Director of Americas Human
Resources, wrote to Mr. Garcia and stated that Delphi “will no longer be requiring
[Plaintiff’s] services” and asked Mr. Garcia to “[p]lease coordinate an exit date for”
her. Dkt. No. 43, Garcia Decl., Ex. 6 (PEN00319). Mr. Garcia then worked with
Penske’s human resources team to identify open positions at Penske for Plaintiff.
Garcia Decl. ¶ 22. They found two open positions and decided to offer Plaintiff the
positions.
Id.
When Delphi was informed of Penske’s intent to offer the two
positions to Plaintiff, Delphi explained that neither of the two positions were
acceptable because they required interaction with Delphi. Garcia Decl. ¶¶ 24–27;
id., Ex. 7 (containing email chain from Delphi stating that “[m]aybe it is best just to
let you know [Plaintiff’s] services are no longer required as of July 1” and that
“neither of the two positions in Laredo works for us”). On June 28, 2011, Delphi
sent Penske a letter confirming “Delphi’s request that Yvette Garcia no longer be
assigned to work on the Delphi account, effective immediately.” Garcia Decl., Ex. 8
(PEN00335)).
Neither party disputes that Delphi’s instruction to Penske that Plaintiff be
removed from Delphi’s account constitutes a legitimate, non-retaliatory reason for
her termination. See Jumbo v. Rodrigues, No. 4:12-CV-2906, 2013 WL 5703628, at
*7 n.5 (S.D. Tex. Oct. 18, 2013) (finding customer complaints to be a legitimate, non-
26
retaliatory reason for termination). Thus, Penske has met its burden of providing a
legitimate, non-discriminatory reason for discharging Plaintiff.
c. Plaintiff Has Not Established Pretext
Proceeding, then, to the third stage of the analysis, the burden again shifts to
Plaintiff to present evidence creating a fact issue that Penske’s proffered reason is
either a mere pretext for retaliation and “false or unworthy of credence,” or
although true, is but one of the motivations for the adverse action, another of which
was retaliation. Ray, 2014 WL 6480423, at *6 (citing Autry v. Fort Bend Indep. Sch.
Dist., 704 F.3d 344, 347–48 (5th Cir. 2013)).
exposing Penske’s reason as pretext.
Plaintiff’s arguments center on
See Dkt. No. 46 at 17–18.
This inquiry
“focuses on whether [Penske’]s explanation was the true basis of its action, the real
reason, rather than on the accuracy of the explanation.” Id. (quoting Vaughn v.
Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011)). Accordingly, in the summaryjudgment context, Plaintiff’s burden requires production of evidence that raises a
genuine issue of material fact that retaliation, not Delphi’s instruction that she be
removed from its account, was the real reason for her termination.
To meet this burden, Plaintiff argues that she has established pretext by
pointing solely to comments made by Mr. Garcia:
Garcia’s comments about Plaintiff and her “serious” medical condition,
and Garcia’s comments to Delphi officials concerning Plaintiff and her
“serious” medical condition and her unreliability based on her absences
are all indications of an animus towards Plaintiff and her serious
medical condition, and by extension her use of FMLA and her
absences. Therefore, the Court may infer discriminatory intent and
that the reasons given are pretext for discriminatory conduct.
27
Dkt. No. 46 at 17–18.
The Fifth Circuit, however, has repeatedly stated that remarks alone cannot
provide sufficient evidence of pretext to meet a plaintiff’s burden under the third
step. See Cervantez v. KMGP Servs. Co. Inc., 349 F. App’x 4, 11 (5th Cir. 2009)
(granting summary judgment and noting that “a comment is not evidence of
discrimination if it is the sole proof of pretext, or if it is not made in temporal
proximity to the adverse employment decision”); Palasota v. Haggar Clothing Co.,
342 F.3d 569, 578 (5th Cir. 2003) (noting that remarks can be probative of
discriminatory intent, provided they “are not the only evidence of pretext”);
Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 403 n.7 (5th Cir. 2001)
(refusing to consider stray remarks as circumstantial evidence of age discrimination
where there was no other evidence of pretext). Since Plaintiff’s pretext argument
rests solely on the comments made by Mr. Garcia – which as the Court has
addressed above, do not rise to direct evidence of discrimination – the Court
concludes that Plaintiff has failed to meet her burden at summary judgment on this
claim.
Even if the Court considers at the pretext stage the evidence Plaintiff put
forth to establish her prima facie case, her claim still fails.11
First, as to the
temporal proximity between Plaintiff’s most recent FMLA leave and the decision to
terminate her, the Court is unpersuaded that it is sufficient to establish pretext,
The Supreme Court has recognized that “although the presumption of discrimination
‘drops out of the picture’ once the defendant meets its burden of production,” the Court “may still
consider the evidence establishing the plaintiff's prima facie case . . . on the issue of whether the
defendant's explanation is pretextual.” Reeves, 530 U.S. at 143.
11
28
particularly in light of Penske’s history of approving Plaintiff’s FMLA leave. From
2005 to 2011, Plaintiff requested FMLA leave twenty-five times. Dkt. No. 43 at 17–
18.
Penske approved each request, and by Plaintiff’s own admission, never
disciplined her for taking leave, but instead reinstated her each time. Pl. Dep.
89:8–17. Courts have reasoned that prior approval of numerous FMLA requests
counters against attempts to establish pretext through proximity in time.
See
Yashenko v. Harrah’s NC Casino Co., LLC, 352 F. Supp. 2d 653, 662 (W.D.N.C.
2005) (finding it was appropriate to consider employer’s history of granting FMLA
leave in evaluating whether employee has satisfied his burden of proving pretext,
and “fact that the Defendant had historically and regularly granted Plaintiff
medical leave followed by the full restoration of his employment is evidence that
Defendant acted without discriminatory intent” in discharging employee); see also
Distefano v. Essentia Health, No. 12-CV-2868, 2014 WL 3101324, at *8 (D. Minn.
July 8, 2014) (refusing to find pretext where employee was fired on the very day
that she exhausted her FMLA leave, reasoning that because plaintiff had taken
FMLA leave on eleven different occasions “without a hint of retaliation from” her
employer, “[i]t simply beggars belief” that she would be fired for exhausting her
remaining medical leave); Pruitt v. Peninsula Reg'l Med. Ctr., No. 14-CV-344, 2014
WL 2916863, at *5 (D. Md. June 25, 2014) (finding employer’s “approval of
[plaintiff]’s prior FMLA requests further strengthens its argument that [plaintiff]
was discharged for a legitimate reason”).
29
Next, Plaintiff argued in her prima facie case that Mr. Garcia entertained
complaints about Plaintiff’s absences that were related to her FMLA leaves. It is
undisputed that Mr. Garcia received such complaints concerning Plaintiff from
others. See Garcia Decl. ¶ 9. It is equally undisputed, however, that “[w]henever
Ms. Garcia’s co-workers complained to [Mr. Garcia] about her medical leaves, [he]
told them that it was the law and that she was entitled to take those leaves of
absence under the FMLA.”
Id.
Even assuming statements by other unnamed
persons to Mr. Garcia could overcome an obvious hearsay obstacle under Federal
Rule of Evidence 802, the Court finds that such evidence does not support a finding
that Penske’s non-discriminatory motive for discharging Plaintiff was a pretext.
Lastly, Plaintiff contended in her prima facie case that Mr. Garcia directed
her to work from the office rather than home, which she asserts implies some
discriminatory animus. Dkt. No. 46 at 17. As an initial matter, “[t]he FMLA only
provides an entitlement to take leave, not to work from home.” Bennett v. Girl
Scouts of Ne. Texas, No. 4:09-CV-443, 2010 WL 723794, at *3 (E.D. Tex. Feb. 25,
2010) (citing 29 U.S.C. § 2612).
Furthermore, the Fifth Circuit has repeatedly
recognized an employer’s need to have its employee in the office. See Amsel v. Texas
Water Dev. Bd., 464 F. App’x 395, 400 (5th Cir. 2012) (noting “the necessity of inoffice time for purposes of customer service and team work”); Carmona v. Sw.
Airlines Co., 604 F.3d 848, 859 (5th Cir. 2010) (“Regular attendance is a necessary
qualification for most jobs.”); Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th
30
Cir. 1998) (“Team work under supervision generally cannot be performed at home
without a substantial reduction in the quality of the employee’s performance.”).
Penske has put forward significant evidence demonstrating that Plaintiff was
instructed to work from the office due to concerns raised by Penske’s customer,
Delphi. As mentioned before, Delphi’s internal investigations manager received a
complaint from a Delphi employee on March 2, 2011, that Plaintiff was using her
relationship with Mr. Heacox to threaten and intimidate Delphi employees, and
that Mr. Heacox was using his company credit card to pay non-business expenses
for Plaintiff. Koplin Decl., Ex A at 5. On March 24, 2011, Michael Sandoval, who
was senior to Mr. Garcia at Penske, sent an email to Plaintiff questioning the scope
of Plaintiff’s work, in response to her travel request to Mexico. Pl. Dep., Ex. 46 at 2.
Six days later, on March 30, 2011, Delphi’s Audit Manager for Mexico, Greg Ward,
expressed his concern about the need and cost of Plaintiff’s position in an email to
Delphi’s Laredo Plant Manager. See Heacox Dep., Ex. 5 at 12 (Doc. 000457) (stating
that “I wonder why do we need this position??” and “if this position is a ‘sales’
position . . . what type of sales activities are being performed between Delphi and
Penske that would require this cost??”); see also Heacox Dep. 35:10–40:20. On April
8, 2011, Delphi’s Corporate Security then sent Mr. Garcia a confidential request for
information pertaining to Plaintiff’s job role, her expense reports, and cell phone
charges. Garcia Decl. Ex. 4 (PEN00262). The next month, Mr. Garcia sent Plaintiff
an email stating that she should work from the office beginning on June 1, 2011.
Pl. Dep., Ex. 50 at 1. Considering the scrutiny by Penske and Delphi of Plaintiff’s
31
role and conduct immediately preceding this email, even Plaintiff herself admitted
that she was not surprised that she was being asked to work in the office. See id.
141:16–142:13.
In sum, Plaintiff has failed to show that Penske did not discharge her for the
reasons it stated.
While Plaintiff may genuinely believe she was discriminated
against, “‘a subjective belief of discrimination, however genuine, [may not] be the
basis of judicial relief.’” Lawrence v. Univ. of Texas Med. Branch, 163 F.3d 309, 313
(5th Cir. 1999) (quoting Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567
(5th Cir. 1983)). Accordingly, because Plaintiff has not shown the reasons Penske
provided for her discharge were pretextual and were not the basis for its decision to
discharge her, Penske is entitled to summary judgment on her FMLA claim.
IV. CONCLUSION
For the reasons explained above, the Court concludes that Plaintiff’s ADA,
Title VII, and ADEA claims are time-barred, and her FMLA claim cannot withstand
summary judgment because she has failed to rebut Penske’s proffered reason for
her discharge. Accordingly, Defendant Penske’s Motion for Summary Judgment
(Dkt. No. 43) is hereby GRANTED and all claims by Plaintiff against Penske are
DISMISSED WITH PREJUDICE.
It is so ORDERED.
SIGNED this 18th day of December, 2014.
___________________________________
Marina Garcia Marmolejo
United States District Judge
32
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