Harville v. Tex. A&M Univ.

• Decision Date: 08 June 2011
• Docket Number: Civil Action No. H–10–1656.
• Citation: 280 Ed. Law Rep. 204,43 NDLR P 122,833 F.Supp.2d 645
• Court: U.S. District Court — Southern District of Texas
• Parties: Melissa HARVILLE, Plaintiff, v. TEXAS A & M UNIVERSITY, et al., Defendants.

833 F.Supp.2d 645

280 Ed. Law Rep. 204

43 NDLR P 122

Melissa HARVILLE, Plaintiff,

v.TEXAS A & M UNIVERSITY, et al., Defendants.

Civil Action No. H–10–1656.

United States District Court,

S.D. Texas,

Houston Division.

June 8, 2011.

Michael Todd Slobin, Shellist Lazarz LLP, Houston, TX, for Plaintiff.

Erika M. Laremont, Office of the Attorney General, Austin, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

KENNETH M. HOYT, District Judge.

I. Introduction

Pending before the Court is the defendants', Texas A & M University (“TAMU”), Guy Mortensen, Dr. Kathryn Ryan and Jillaine Maes, motion for summary judgment (Docket Entry No. 35). The plaintiff, Melissa Harville, filed a response (Docket Entry No. 38), to which the defendants replied (Docket Entry No. 39).¹ After having carefully reviewed the motion, the responses, the record and the applicable law, the Court grants the defendants' motion in its entirety.

II. Factual Background

The plaintiff was terminated from her research assistant position at a TAMU laboratory, and she now asserts various employment discrimination and retaliation claims against TAMU and three of its employees. From May 2008, until her termination on December 21, 2009, the plaintiff worked in a TAMU Biology Department lab run by Ryan. The plaintiff's essential onsite job duties included executing experiments, attending lab meetings, teaching lab techniques to students and maintaining necessary lab supplies. TAMU is a public institution of higher education, Mortensen was TAMU's Director of Policy and Practice Review during all relevant times, Ryan is a TAMU Assistant Professor and Maes is a TAMU Assistant Department Head.

During her first year of employment, the plaintiff accumulated numerous unexcused absences for various reasons, including illness, her children's illnesses and running errands. In May 2009, Ryan gave the plaintiff her first annual performance evaluation, in which she indicated that the plaintiff did not meet expectations regarding her quantity of work and initiative. Ryan noted that the plaintiff's number of unscheduled absences directly impacted the amount and timeliness of work completed, as well as the types of experiments that Ryan could assign to her. Ryan also noted that some of the plaintiff's absences were foreseeable and should have been planned.

In July 2009, the plaintiff was given FMLA leave and was told to remain in contact with her work area as required by her department and TAMU's policies. On July 14, Dr. Joseph Martin diagnosed the plaintiff with a thyroid nodular goiter and hypothyroidism. Martin released her to work on July 20, but he certified her as possibly needing frequent breaks and permitted her to miss work episodically for up to three days per month until November 2009. The plaintiff did not return to work on July 20.

On July 21, the plaintiff notified her lab that she would be absent, mentioned another appointment, and said she might be out for the rest of the week. By July 28, the plaintiff had still not returned to work, so Maes wrote her requesting an updated medical form within fifteen days. The plaintiff timely provided this updated form, which released her to work on August 24, with episodic leave of up to three hours per month. The plaintiff alleged car trouble on August 24, and returned to work on August 25. At that time, Ryan and Maes met with her, and Ryan instructed her to keep a regular work schedule and to contact Ryan if she was going to be absent. The plaintiff only worked a regular schedule four of the eight following work days. Ryan emailed the plaintiff to remind her of her attendance and notification requirements. In addition to medical reasons and errands, the plaintiff missed work because of meeting with her child's teacher and depositing her paycheck.

On September 14, Ryan gave the plaintiff a memorandum concerning her attendance and performance. Also in September, the plaintiff submitted another updated medical certification regarding her thyroid issues and migraine headaches, which cleared her for work with up to two days of episodic leave per month. By September 28, the plaintiff had missed almost four days of work. She obtained an updated medical certification in October that cleared her for work, but permitted her up to eight days of episodic leave per month through January.

The plaintiff stopped coming to work on October 19. She reported her absences for the next eight work days, but not the ninth. The following week, she reported in during her absences for four days, and on the fourth day, she advised that she would return November 10. Meanwhile, sometime in October, Mortensen advised Ryan and Maes to ask the plaintiff what kind of accommodation she sought. They did not ask her because she never returned to work.

On November 10, the plaintiff untimely reported that she would not be coming to work. Ryan again urged the plaintiff to be more conscientious about reporting her absences. The plaintiff missed the next two weeks of work without reporting to Ryan. On November 30, the plaintiff emailed Ryan saying that she was still sick, but that she intended to return when able. Ryan responded, reminding her to report daily or to provide an “out through at least” date.

On December 14, Ryan spoke to Mortensen again, and Mortensen determined that the plaintiff's current number of absences far exceeded the amount of FMLA leave authorized by her current medical certification. Mortensen also determined that the plaintiff had violated TAMU's policies by not following the department and Ryan's notification requirements. Mortensen drafted a termination letter that Ryan approved. Because neither of them had termination authority, Dr. U.J. McMahan and Dean Joseph Newton approved their recommendation to terminate the plaintiff on December 21.² By this point, from the time she first requested FMLA leave time in July 2009 until her termination, she had taken off all of July, August 1–24, seven days in September, fourteen days in October, all of November and December 1–21. The plaintiff filed suit on May 7, 2010.³ The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

III. Contentions of the PartiesA. The Plaintiff's Contentions

The plaintiff claims that Mortensen, Ryan and Maes, in their individual capacities, discriminated and retaliated against her in violation of the Family Medical Leave Act (“FMLA”) ⁴ by terminating her for exercising her FMLA rights. She also claims that those three defendants, in their official capacities, discriminated and retaliated against her in violation of the Americans with Disabilities Act Amendments Act (“ADA”) ⁵ and the Rehabilitation Act of 1973 (“RA”) ⁶ by terminating her because of her real or perceived disability. She asserts her RA claims against TAMU as well.

The plaintiff avers that, prior to termination, Maes continually harassed her about being absent from work. She also maintains that the defendants are still harassing her by causing the Texas Workforce Commission to deny her unemployment benefits on three separate occasions. She seeks damages, injunctive relief, reinstatement and attorney's fees.

B. The Defendants' Contentions

Regarding the plaintiff's FMLA claims, the defendants maintain that, at a minimum, neither Mortensen nor Maes were the plaintiff's employers. They assert that all three of the defendant employees are protected by qualified immunity. They claim that the plaintiff's excessive and unpredictable absences negatively impacted Ryan's lab because, inter alia, certain experiments require Ryan's research assistant to observe and continue experiments over the course of three consecutive days. They maintain that as a result of the plaintiff's absences, Ryan's lab lost materials and had to redo experiments, thus increasing costs while decreasing productivity. They deny discriminating or retaliating against the plaintiff for exercising her FMLA rights. They aver that, even if the plaintiff can establish a prima facie case for FMLA interference or retaliation, the defendants had legitimate, non-retaliatory reasons for each of their employment actions. Regarding the plaintiff's ADA and RA claims, the defendants maintain that she cannot show that she could perform the essential functions of her job, that her requested accommodation was unreasonable and that she cannot establish retaliation.

IV. Standard of Review

Federal Rule of Civil Procedure 56 authorizes summary judgment against a party who fails to make a sufficient showing of the existence of an element essential to that party's case and on which that party bears the burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) ( en banc ). The movant bears the initial burden of “informing the Court of the basis of its motion” and identifying those portions of the record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548;see also, Martinez v. Schlumberger, Ltd., 338 F.3d 407, 411 (5th Cir.2003). Summary judgment is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

If the movant meets its burden, the burden then shifts to the nonmovant to “go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir.1996) (citing Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995); Little, 37 F.3d at 1075). “To meet this burden, the nonmovant must ‘identify specific evidence in the record and articulate the ‘precise manner’ in which that evidence support[s] [its] claim[s].' ” Stults, 76 F.3d at 656 (quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.1994), cert. denied,513...