Lopez-Baca v. Geren
| Decision Date | 03 November 2008 |
| Docket Number | No. EP-07-CV-395-KC.,EP-07-CV-395-KC. |
| Citation | 599 F.Supp.2d 744 |
| Parties | Jesus A. LOPEZ-BACA, Plaintiff, v. Pete GEREN, Secretary of the Army, Defendant. |
| Court | U.S. District Court — Western District of Texas |
Enrique Lopez, Law Office of Enrique Lopez, El Paso, TX, for Plaintiff.
Katherine A. Lehmann, U.S. Attorney's Office, Paul L. Lee, U.S. Attorney for the Western District of Texas, El Paso, TX, for Defendant.
On this day, the Court considered "Defendant's Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment as to Plaintiffs EEO Allegations & Motion for Summary Judgment as to Plaintiffs MSPB Allegations" ("Defendant's Motion") (Doc. No. 15); "Plaintiffs Responses [sic] to Defendant's Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment" ("Plaintiff's Response") (Doc. No. 17); and "Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment as to Plaintiffs EEO Allegations & Motion for Summary Judgment as to Plaintiff's MSPB Allegations" ("Defendant's Reply") (Doc. No. 21). For the reasons set forth herein, Defendant's Motion is GRANTED.
The following derives from Defendant's Motion, which includes "Defendant's Proposed Undisputed Facts" ("Proposed Undisputed Facts"); Plaintiff's Response, which includes "Declaration of Jesus A. Lopez-Baca Given Under Penalty of Perjury" ("Plaintiff's Declaration"); and Plaintiffs Complaint (Doc. No. 1).
The Court notes that the procedural history of this case is far from straightforward. Plaintiff pursued two parallel administrative avenues of relief and the administrative procedures overlapped both factually and temporally. However, these procedures are treated separately for jurisdictional purposes, as further explained in the section of this Order discussing Defendant's Motion to Dismiss. Because the timing of the administrative procedures is significant to Plaintiff's case, this section will set forth the procedural history chronologically.
Plaintiff Jesus A. Lopez-Baca was employed by the Department of the Army as a Nursing Assistant from September 2000 through October 2006. Proposed Undisputed Facts ¶ 5. In December 2004, Plaintiff was assigned to work at the Soldier Family Medical Clinic (SFMC) on Fort Bliss. Id. ¶ 6.
Plaintiff suffers from post-traumatic stress disorder, coronary artery disease, and a knee impairment which he incurred in the course of his employment. Proposed Undisputed Facts ¶¶ 9, 16-17; Pl.'s Decl. ¶ 10. Plaintiff states that as a result of these conditions, he is unable to lift twenty pounds or more, he is required to "relax (lay down) [and] get fresh air" when he begins to feel strained, he must go to a hospital if he does not improve within ten minutes of experiencing these symptoms, he suffers shortness of breath, and he has problems "walking bending, [and] kneeling." Pl.'s Decl. ¶ 10.
From November 2004 through June 2006, Lieutenant Colonel (LTC) Nancy Sanchez served as Plaintiffs immediate supervisor. Proposed Undisputed Facts ¶ 10. On April 24, 2006, LTC Sanchez proposed that Plaintiff be suspended without pay for ten work days. Def.'s Mot. Ex. 5, Tab 6, Subtab 4g at 1. In the proposal, LTC Sanchez charged Plaintiff with failure to follow established procedures for requesting leave, as well as multiple instances of absence without approved leave (AWOL) and leaving the work site without permission. See id. Plaintiff argues that this was in retaliation for Plaintiff contacting an Equal Employment Opportunity (EEO) counselor. Pl.'s Decl. ¶ 28.1
On May 9, 2006, Plaintiff filed an EEO employment discrimination complaint, alleging discrimination on the basis of national origin, age, and disability, as well as reprisal and harassment. Def.'s Mot. Ex. 9 at 1-2. In his complaint, Plaintiff alleged that LTC Sanchez harassed Plaintiff, refused to accept Plaintiffs physician's statements concerning Plaintiffs medical restrictions, denied Plaintiff the ability to leave work for medical appointments, unfairly accused Plaintiff of abusing sick leave, and placed Plaintiff on AWOL status without justification. See id. at 4-5.
In May 2006, Plaintiff began a leave of absence from his position in order to undergo knee surgery; this leave was approved by the Texas Workers' Compensation Commission. Proposed Undisputed Facts ¶ 39; Pl.'s Decl. ¶ 36.2 Plaintiff was excused until June 6, 2006. Proposed Undisputed Facts ¶ 39. During Plaintiffs absence, on May 25, 2006, Col. Kathleen N. Dunemn, then-Chief of the Department of Nursing at SFMC, sustained Plaintiffs previously-proposed suspension. Def.'s Mot. Ex. 5, Tab 6, Subtab 4f at 1. Plaintiff served his suspension from June 7, 2006, until June 20, 2006. Proposed Undisputed Facts ¶ 39. Shortly after Plaintiff returned to work, LTC Cathleen Burgess replaced LTC Sanchez as chief nurse and Plaintiffs supervisor. Id. ¶ 40.
On August 2, 2006, the Department of Defense Office of Complaint Investigation conducted a fact-finding conference regarding Plaintiffs EEO complaint. Def.'s Ex. 8 at 1. Plaintiff participated in this conference. Id.
On September 5, 2006, LTC Burgess proposed Plaintiffs removal from federal service. Def.'s Mot. Ex. 5, Tab 6, Subtab 4d. In the proposal, LTC Burgess charged Plaintiff with thirty-four instances of misconduct, including creating a disturbance in the presence of patients, AWOL, refusal to carry out instructions, and leaving the work site without permission. See generally id. The specifications describing each charge pertained only to events which occurred between July 12, 2006, and August 23, 2006, or the period when LTC Burgess supervised Plaintiff. See id. On October 4, 2006, Col. Donna M. Diamond, Chief of the Department of Nursing at SFMC, sustained Plaintiffs removal, effective October 5, 2006. See id. Subtab 4b at 1.
On October 31, 2006, Plaintiff appealed his removal from federal service to the Merit Systems Protection Board (MSPB). Proposed Undisputed Facts ¶ 56. In his appeal, Plaintiff alleged as affirmative defenses that his removal was due to disability discrimination and retaliation for his prior EEO activity. Id. ¶ 57. On February 5, 2007, Plaintiff requested that his appeal be dismissed without prejudice so that Plaintiff could seek worker's compensation and disability retirement benefits; this request was granted. Id. ¶ 58.
On February 22, 2007, the Department of Defense Office of Complaint Investigation issued a decision concerning Plaintiffs EEO complaint, holding that Plaintiff failed to prove that Defendant engaged in illegal discrimination or reprisal. Def.'s Mot. Ex. 1 at 2.
On March 12, 2007, Plaintiff filed a petition with the MSPB for review of its February 5, 2007, decision. Proposed Undisputed Facts ¶ 59. This petition was treated as a request to refile, and was granted on March 20, 2007, for a hearing on the merits. Id.
On March 31, 2007, Plaintiff appealed the February 22, 2007, Department of Defense Office of Complaint Investigation decision concerning Plaintiff EEO complaint to the U.S. Equal Employment Opportunity Commission Office of Federal Operations (EEOC OFO). Id. ¶ 1.
On May 30, 2007, the MSPB held a videoconference hearing on Plaintiffs appeal of his removal. Def.'s Mot. Ex. 6 at 1. On July 18, 2007, MSPB Administrative Judge Marie A. Malouf sustained Defendant's decision to remove Plaintiff, finding that Plaintiffs removal was reasonable and that Plaintiff failed to prove his affirmative defenses of disability discrimination and retaliation. Proposed Undisputed Facts ¶ 60; see also Def.'s Mot. Ex. 4, Tab 4.
On July 31, 2007, the EEOC OFO mailed its final decision to Plaintiff and Plaintiffs counsel at the time. Proposed Undisputed Facts ¶ 2. The EEOC OFO decision affirmed the Department of Defense Office of Complaint Investigation decision and found that Plaintiff failed to prove that he was the victim of discrimination, reprisal, or harassment. Id.; see also Def.'s Mot. Ex. 1 at 3-4.
On August 22, 2007, Plaintiff petitioned the MSPB for review of Judge Malouf's July 18, 2007, decision. Proposed Undisputed Facts ¶ 61. On October 9, 2007, the MSPB denied Plaintiffs petition. Id.
On November 13, 2007, Plaintiff filed a Complaint with this Court. See Pl.'s Compl. In his Complaint, Plaintiff claims Defendant discriminated against Plaintiff on the basis of his disability, in violation of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. § 791 et seq. Id. at 4-5. Plaintiff also claims that Defendant retaliated against Plaintiff because of Plaintiffs participation in the EEO process, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. Id. at 5-6. Plaintiff further claims that Defendant's actions towards Plaintiff constituted a hostile work environment in violation of Title VII. Id. at 6. Finally, Plaintiff petitions this Court for review of the MSPB decision, alleging that the decision was "arbitrary and capricious, unsupported by substantial evidence or otherwise not in accordance with law." Id. at 6-7. Plaintiff seeks a declaratory judgment declaring Defendant's actions to be in violation of Title VII and the Rehabilitation Act, damages in the amount of $300,000, as well as attorney's fees, court costs, and prejudgment and postjudgment interest. Id. at 7.
The Court notes that Plaintiffs hostile work environment and retaliation claims allege violations of Title VII. See Pl.'s Compl. 5-6. However, all factual allegations in Plaintiffs Complaint sound exclusively in disability discrimination. See generally Pl.'s Compl. To state a hostile work environment claim under Title VII, a plaintiff must establish that he belongs to a protected group. See, e.g., EEOC v. WC & M Enters., Inc., 496 F.3d 393, 399 (5th Cir.2007). Disability is not protected under Title VII. See ...
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