Gonzales v. Yes! Cmtys., Inc.

• Decision Date: 25 June 2013
• Docket Number: CIVIL NO. SA-12-CA-450-PM
• Parties: ROSEMARY GONZALES PERALES a/k/a ROSEMARY GONZALES, Plaintiff, v. YES! COMMUNITIES, INC., Defendant.
• Court: U.S. District Court — Western District of Texas

ROSEMARY GONZALES PERALES a/k/a ROSEMARY GONZALES, Plaintiff,

v.YES! COMMUNITIES, INC., Defendant.

CIVIL NO. SA-12-CA-450-PM

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

ORDERED: June 25, 2013

MEMORANDUM OPINION AND ORDER

Pursuant to the consent of the parties in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge¹ and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(c)(1), Federal Rule of Civil Procedure 73, and Rule 1(i) of the Local Rules for the Assignment of Duties to United States Magistrate Judges in the Western District of Texas, the following memorandum opinion and order is entered.

TABLE OF CONTENTS

I. Jurisdiction

II. Procedural History

III. Statement of Undisputed Facts

IV. Issues

V. Summary Judgment Standard

VI. Discussion

A. Defendant's Motion for Leave to File First Amended Answer

1. summary of arguments

2. analysis

B. Defendant's Motion to Strike Portions of Plaintiff's Summary Judgment Evidence or, in the Alternative, to Reopen Plaintiff's Deposition

C. Defendant's Motion for Summary Judgment

1. sex discrimination

a. summary of arguments

i. defendant's motion

ii. plaintiff's response

iii. defendant's reply

b. standards

c. analysis

i. introduction

ii. hostile work environment claim

A. harassment that affects a term, condition, or privilege of employment

B. vicarious liability

1. Johnson

2. Lopez

iii. quid pro quo claim

2. retaliation

a. summary of arguments

b. analysis

3. intentional infliction of emotional distress

a. summary of arguments

b. analysis

D. Defendant's Request for Oral Argument

VII. Conclusion

I. JURISDICTION

The Court has jurisdiction pursuant to 28 U.S.C. § 1331, Title VII of the Civil Rights Act of 1968, 42 U.S.C. § 2000e, et seq. ("Title VII"), and 28 U.S.C. § 1367(a).

II. PROCEDURAL HISTORY

Plaintiff Rosemary Gonzales Perales ("plaintiff") initiated this case when she filed her original complaint on May 9, 2012, naming defendant Yes! Communities, Inc. ("defendant").² Plaintiff alleges, without specification, she "was subjected to sexual harassment by the upper management at her place of employment;" defendant "failed to take an[y] action" after she brought complaints to it; she was relocated but "the sexual harassment continued, with the management making demands to see her underwear, and to kissing her frontally;" "[a]s a result of the continued harassment" of defendant and its employees, plaintiff became depressed and suffered from anxiety; and "[d]ue to her complaints to management of sexual harassment, [plaintiff's employment] was terminated on August 26, 2011."³ Plaintiff appears to assert four claims against defendant: (1) under the heading "sexual harassment," that defendant (a) "intentionally discriminated against Plaintiff in connection with the compensation, terms, conditions and privileges of employment or limited, segregated or classified Plaintiff in a manner that would deprive or tend to deprive her of any employment opportunity or adversely affect her status because of Plaintiff's sex," (b) "intentionally classified Plaintiff in a manner that deprived her of an equal employment opportunity that was provided to male employees similarly situated," and (c) "sexually harassed Plaintiff" and "knew or should have known of the harassment, yetfailed to take prompt remedial action;" (2) under the heading "constructive discharge," that defendant "made the working conditions so intolerable that Plaintiff felt compelled to resign her position," "[a] reasonable person in the same position would have also felt compelled to resign," and plaintiff suffered damages for which she sues; (3) under the heading "intentional infliction of emotional distress," that defendant "intentionally or recklessly created and or conscious[]ly failed to take the appropriate[] action to not create a hostile work enviro[n]ment for the Plaintiff," "Defendant's conduct was extreme and outrageous and proximately caused Plaintiff severe emotional distress," and plaintiff suffered damages for which she sues; and (4) under the heading "retaliation," that defendant "instituted a campaign of retaliation which included treating her differently th[a]n other co-workers and eventually terminatin[g] her employment," the retaliation was "due to Plaintiff exercising her rights by opposing a discriminatory practice," and plaintiff suffered damages for which she sues.⁴ Plaintiff seeks recovery of damages for "[d]epression and anxiety;" attorney's fees; back pay and interest; costs; "emotional pain;" past and future "[m]ental anguish;" past and future medical care and expenses; past and future "loss of earnings;" and "loss of benefits."⁵ Plaintiff also seeks reinstatement "to the position and pay grade [she] held but for the unlawful employment actions of Defendant," and "such other and further relief to which the Plaintiff may be entitled at law or in equity."⁶ Plaintiff's complaint includes a jury demand.⁷

Defendant filed its original answer on June 11, 2012, generally admitting and denying the allegations of the original complaint, and asserting the affirmative defenses of: "no acts or statements were discriminatory," "non-retaliatory acts," "discretionary authority," "failure of proof," limitation of damages, "punitive damages barred," "anti-discrimination policy & procedures," "proximate cause," failure to mitigate, and "pecuniary losses."⁸ Defendant's answer pleads that plaintiff "take nothing by way of her claims;" for judgment for defendant; defendant recover its costs, attorney's fees and expert fees; and "such other and further relief, at law or in equity, to which it may be justly entitled."⁹

The parties filed their consents to Magistrate Judge jurisdiction,¹⁰ and on July 25, 2012, the District Judge transferred and reassigned the case to the docket of the undersigned.¹¹ On August 1, 2012, the undersigned entered the parties' agreed, proposed scheduling order,¹² which has been amended.¹³ As amended, the scheduling order required: discovery to be completed by April 30, 2013; mediation to occur on or before June 17, 2013; and dispositive motions to be filed by April 30, 2013.¹⁴ On November 7, 2012, plaintiff filed her expert designations.¹⁵

Defendant filed its motion for summary judgment on April 30, 2013, and plaintiff filed a response on May 14, 2013.¹⁶ Defendant filed an opposed motion for leave to file an amended answer on May 17, 2013;¹⁷ plaintiff filed a response on May 23, 2013;¹⁸ and defendant filed a reply in support on May 30, 2013.¹⁹ On May 21, 2013, defendant filed a reply in support of its motion for summary judgment, and a request for oral argument on its summary judgment motion.²⁰ On May 22, 2013, defendant filed an "opposed motion to strike plaintiff's improper changes to her deposition transcript, or alternatively, to re-open plaintiff's oral deposition,"²¹ and plaintiff filed a response on May 28, 2013.²²

III. STATEMENT OF UNDISPUTED FACTS

The following statement of facts is taken from defendant's motion for summary judgment.²³ Unless otherwise indicated, plaintiff does not dispute the factual statements:

Defendant is "a company that operates manufactured home communities."²⁴ During her employment, plaintiff worked at two different communities: Springfield Meadows first, andCreston Ridge after a transfer. Plaintiff complains of the conduct of two of defendants' employees: Michael Johnson ("Johnson"), the manager of Springfield Meadows,²⁵ and Bert Lopez ("Lopez"), the manager of Creston Ridge.²⁶

Plaintiff began working for defendant on June 16, 2009 "as a salesperson/assistant manager at the Springfield Meadows community."²⁷ The handbook contains an "equal opportunity policy" at the front, expressly states that unlawful harassment is prohibited, and instructs employees on how to report alleged harassment.²⁸ Plaintiff read and understood the handbook, and "understood that she had an obligation to report any conduct that she thought violated company policy as outlined in the Handbook."²⁹ Defendant conducts sexual harassment training at least every two years for employees, and plaintiff attended such training on August 17, 2009 and February 10, 2011.³⁰

Plaintiff captured in mobile telephone audio recordings examples of Johnson's conduct on two days.³¹ Plaintiff complained about Johnson's conduct to co-workers. One of plaintiff's co-workers, Vickie Roberts, reported Johnson's conduct to Randal Brooks ("Brooks"), regionalmanager for defendant and Johnson's supervisor.³² Brooks conducted an investigation, "including interviews of all of the pertinent employees."³³ As a result of the investigation, Brooks separated Johnson and plaintiff by transferring plaintiff to Creston Ridge, "issued a reprimand to Michael Johnson and wrote a performance correction notice."³⁴ At the time, plaintiff lived in the Creston Ridge community, and her position, salary, and commissions did not change with the transfer.³⁵ After her transfer, plaintiff had no more contact with Johnson and reported no more problems with him, but did have some complaints about Lopez, the manager of Creston Ridge.³⁶

Plaintiff began to feel stress and anxiety in October 2010, after she was transferred to Creston Ridge.³⁷ She went on short-term disability leave on April 26, 2011, and then on long-term disability leave.³⁸ Plaintiff was donated paid time off so "she would not immediately lose income. [Defendant] continued paying her commissions while she was on leave."³⁹ Plaintiff did not return to work, and defendant terminated plaintiff's employment on August 25, 2011.⁴⁰

IV. ISSUES

1. Whether defendant's motion for leave to file a first amended answer should be granted or denied.

2. Whether defendant's motion to strike portions of plaintiff's summary judgment evidence or, in the alternative, to reopen plaintiff's deposition should be granted or denied.

3. Whether there is a genuine issue of material fact to preclude entry of judgment as

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