Lopez v. Kempthorne, Civil Action No. H-07-1534.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Citation684 F. Supp.2d 827
Docket NumberCivil Action No. H-07-1534.
PartiesFelicia LOPEZ, Plaintiff, v. Kirk KEMPTHORNE, Secretary of the Department of the Interior, Defendant.
Decision Date14 January 2010
684 F.Supp.2d 827

Felicia LOPEZ, Plaintiff,
Kirk KEMPTHORNE, Secretary of the Department of the Interior, Defendant.

Civil Action No. H-07-1534.

United States District Court, S.D. Texas, Houston Division.

January 14, 2010.

684 F. Supp.2d 844

Felicia Lopez, Houston, TX, pro se.

Jose Cesar Molina, The Law Office of Jose Molina PLLC, Houston, TX, for Plaintiff.

Nancy Cross Leonard, Office of U.S. Attorney, Houston, TX, for Defendant.


MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, brought by Plaintiff Felicia Lopez against her employer, the Department of the Interior ("DOI"), alleging discrimination based on race (Hispanic), gender (female), national origin (Puerto Rican Hispanic), and disability (Myofascial Pain Syndrome),1 as well as claims of a hostile work environment and retaliation,

684 F. Supp.2d 845

is Plaintiff Federal Defendant'2 motion for summary judgment (instrument #34) pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56(c).

Federal Defendant argues that this case should be dismissed with prejudice because Plaintiff failed to exhaust administrative remedies timely and/or cannot establish a prima facie case of discrimination or pretext for any of her claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ? 2000e et seq., or the Americans with Disabilities Act ("ADA"), 42 U.S.C. ?? 12101-12213.

After reviewing the motion and related briefs, as well as the summary judgment evidence, the Court finds that the motion should be denied in part and granted in part.

Standard of Review

Summary judgment is proper when "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). The movant has the burden to demonstrate that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the movant succeeds, the non-movant must come forward with evidence such that a reasonable party could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-movant "must come forward with `specific facts showing there is a genuine issue for trial.'" Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "A factual dispute is deemed `genuine' if a reasonable juror could return a verdict for the nonmovant, and a fact is considered `material' if it might affect the outcome of the litigation under the governing substantive law." Cross v. Cummins Engine Co., 993 F.2d 112, 114 (5th Cir.1993). Summary judgment is proper if the non-movant "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Piazza's Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir.2006). A district court may not make credibility determinations or weigh evidence when deciding a summary judgment motion. Chevron Phillips, 570 F.3d 606, 612 n. 3 (5th Cir.2009), citing EEOC v. R.J. Gallagher Co., 181 F.3d 645, 652 (5th Cir.1999).

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. Center, 476 F.3d 337, 343 (5th Cir.2007). Conjecture, conclusory allegations, unsubstantiated assertions and speculation are not adequate to satisfy the nonmovant's burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5th Cir.1994); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002). "`A subjective belief of discrimination, however genuine, may not be the basis of judicial relief.'" Lawrence v. Univ. of Texas Medical Branch, 163 F.3d 309, 313 (5th Cir.1999), quoting Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567 (5th Cir.1983).

Plaintiff's Complaint

Plaintiff's Third Amended Complaint (# 31), the controlling pleading, makes the

684 F. Supp.2d 846

following factual allegations. Because the complaint is not very detailed and somewhat disorganized, the Court fills in some gaps and dates of events with undisputed facts from the briefing and summary judgment evidence.

Plaintiff began working for the United States Department of the Interior ("DOI"), Mineral Management Services ("MMS"), Offshore CAM, Houston, Texas, as a GSA-9 auditor in 1990. #34 at Exs. 4:5-6; 6:632,3 640. She became a GS-13 in 1999. # 34, Ex. 6:261. She is currently a Supervisor Auditor, GS-0511013, one of two Hispanic female supervisors4 in that office. Up until 2000, she states that she received numerous pay increases, promotions, and increased employment responsibilities, as well as awards and recognition from her peers and superiors, and that she was never disciplined.

In 1991 Plaintiff claims that she was diagnosed with myofascial pain syndrome, a permanent disability that causes her constant pain, migraines, and other physical problems.

Plaintiff complains that she was subjected to a hostile work environment from 2000 until the present. In 2000 Plaintiff asserts that she was subjected to "unwelcome remarks by a supervisor," Michael Casias. Plaintiff alleges that Casias "put her down" during a meeting in front of her team members by saying, "Do you understand me, read my lips" and "Oh, are you sleeping, go to sleep." Plaintiff contends that neither Casias nor her current supervisor,5 Gary Grant, did anything to remedy the hostile work environment after she brought it to their attention. Moreover, on November 16, 2006 Grant gave her a rating of "Fully,"6 based on a recommendation

684 F. Supp.2d 847

from Linda Moody, Plaintiff's former supervisor. Plaintiff notes that after the Equal Employment Opportunity Commission ("EEOC") became involved, that rating was changed to "Superior."

When Plaintiff was transferred on April 18, 2004 from MMS-CAM to Royalty in Kind ("RIK"), Plaintiff claims that without her knowledge she was "demoted" from Supervisory Auditor, a management position, to a non-supervisory technical position. She claims she was treated differently from other similarly situated persons outside her protected group, specifically Gary Grant, a Caucasian male, who was also working on RIK, but whose classification as supervisory auditor was not changed. Although she was later transferred back to MMS-CAM and her demotion was reversed, the reversal only became effective as of 10/01/04 instead of 4/18/04, the date she was transferred to RIK. Plaintiff charges that Pratima Subbarao, who told Plaintiff that the personnel action had to be approved by Lonnie Kimball, her new supervisor in MMS-CAM, also stalled or quashed efforts by Plaintiff and her RIK manager Stacy Leyshon to reverse the demotion.

Plaintiff also complains that from October 2004 through October 2005, despite excellent performance evaluations, promotions, and awards, through adverse employment decisions she was denied the opportunity to work on many projects, including supervising the Chevron residency,7 transportation system audits, random audit (to which she was finally assigned after complaining), and a telecommuting agreement even though she lived 78 miles from work and the stress of driving round trip each day aggravated her physical condition; she claims that management also refused to grant her promotions and

684 F. Supp.2d 848

pay awards. In addition, she contends that her "managers Linda Moody and Lonnie Timball were withholding approval and signature of engagement letters, giving her uncertain workloads to create chaos, making numerous management changes, forcing Plaintiff to perform secretarial tasks, and harassing Plaintiff in an effort to prevent her from doing her job effectively." She also asserts very generally and without specific facts that she and her work "have been undermined in front of her peers and auditors, during supervisor meetings, and her decisions on training and telecommuting for direct reports are consistently being overturned."

Plaintiff alleges that Defendant refused to accommodate, indeed discriminated against, her, based on her disability and on her sex, race, and national origin. In particular Defendant refused her requests on October 3, 2004 and March 6, 2006,8 to allow her to telecommute even though similarly situated employees were approved to do so. Although her more recent application was initially approved by her supervisor Carol Green, Plaintiff asserts that Lonnie Kimball then disapproved it without giving a reasonable explanation. Plaintiff maintains that others in similar positions and circumstances were allowed to telecommute.

Plaintiff also complains that around April 2006 Plaintiff was unable to use an entrance door next to her office and server. She further objects that her supervisor and others continued to "closely monitor" her. Until recently she was assigned an office at the end of the building, near the supply room, far away from her team and the other employees. The office was too small to hold meetings with her team. She also was not invited to nor included in supervisory meetings nor in the selection of new employees. On an unspecified dates, she was not given an award at the time of accomplishment, but only at a later time (in one instance, two years) in violation of DOI's award recognition policy, while other managers recognized their employees at the time of accomplishment.9 She further asserts that her attempts to become a supervisory auditor, and to have any real chance for promotions, were "thwarted."

She additionally complains that at some time after October 3, 2004, her supervisors Linda Moody and Lonnie Kimball made changes to an engagement letter that she had drafted....

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