Murillo v. City of Granbury
| Docket Number | 4:21-CV-744-P |
| Decision Date | 24 October 2022 |
| Citation | 636 F.Supp.3d 739 |
| Parties | Jessica MURILLO, Plaintiff, v. CITY OF GRANBURY, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Kevin C. Smith, North Richland Hills, TX, Shawn Alexander Johnson, Saj Law PLLC, Houston, TX, for Plaintiff.
Ashley D. Dierker, Alicia Kreh, Wayne K. Olson, Benjamin Jonson Gibbs, Taylor, Olson, Adkins, Srala, & Elam, LLP, Fort Worth, TX, for Defendant.
Before the Court is Defendant City of Granbury's motion for summary judgment (ECF No. 24), and Plaintiff Jessica Murillo's motion to strike summary judgment evidence (ECF No. 40). Having reviewed the motions, related docket entries, counsel's arguments, and applicable law, the Court GRANTS Granbury's motion for summary judgment and DENIES Murillo's motion to strike.
Murillo was employed by Granbury when Congress enacted the Families First Coronavirus Response Act. See 29 C.F.R. § 826 et seq. The Act provides that an employee may take up to 12 weeks of leave under the Family and Medical Leave Act ("FMLA") due to the unavailability of childcare caused by the Covid-19 pandemic. ECF Nos. 16 at 7-9; 25 at 9; 38 at 3; see 29 U.S.C. § 2612. Because Murillo could not find adequate childcare for her daughter, she elected to take 12 weeks of FMLA leave starting on April 1, 2020. ECF Nos. 16 at 7-8; 38 at 3-4. A Granbury human resources coordinator twice notified Murillo that her FMLA leave would expire on June 23, 2020, and thus she was required to return to work the next day. ECF Nos. 16 at 12; 26 at 381-82. Murillo acknowledged that she was required to return to work on June 24, 2020. ECF No. 26 at 382. But Murillo did not show up to work that day. ECF Nos. 16 at 15-16; 25 at 11. Granbury accordingly fired her the same day. ECF Nos. 16 at 15-16; 26 at 383.
Murillo now sues Granbury and various Granbury employees. See ECF No. 16. The defendants moved for summary judgment on all claims. ECF No. 24. Murillo then filed a stipulation dismissing the Granbury employees from the suit, and thus only her claims against Granbury are now before the Court. See ECF No. 33. Murillo alleges that (1) Granbury retaliated against her in violation of the FMLA by firing her for using her FMLA-protected leave (ECF No. 16 at 25-27); (2) Granbury discriminated against Murillo based on her sex in violation of 42 U.S.C. § 1983 (ECF No. 16 at 33-35, 40-41); and (3) Granbury conspired to "depriv[e] [Murillo] of her constitutional right to personal choice in matters of marriage and family life" (ECF No. 16 at 42).
Summary judgment is appropriate "if the movant shows 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). "Only disputes over facts that might affect the outcome of the suit under the governing law" are material and "will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
When evaluating a motion for summary judgment, the Court construes all facts in the light most favorable to the nonmovant and draws reasonable inferences in the nonmovant's favor. In re Deepwater Horizon, 48 F.4th 378, 382 (5th Cir. 2022). The Court "may not evaluate the credibility of the witnesses, weigh the evidence, or resolve factual disputes." Guzman v. Allstate Assurance Co., 18 F.4th 157, 160 (5th Cir. 2021) (internal quotation omitted).
It is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" by the FMLA. 29 U.S.C. § 2615(a)(1). A FMLA retaliation claim that is based on circumstantial evidence, like Murillo's, is analyzed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), burden-shifting framework. Wheat v. Fl. Par. Juv. Just. Comm'n, 811 F.3d 702, 705 (5th Cir. 2016). Under the framework, the plaintiff must first state a prima facie retaliation claim. Id. If the plaintiff succeeds, "the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016) (internal quotation omitted). "If the employer satisfies this burden, the presumption of discrimination drops out of the picture, and the employee must offer some evidence that" the employer's reason was pretextual. Id. (citations and internal quotations omitted).
To state a prima facie retaliation claim, the plaintiff must allege that "(1) she engaged in protected activity; (2) the employer took a materially adverse action against her; and (3) a causal link exists between her protected activity and the adverse action." Wheat, 811 F.3d at 705. Granbury contends that Murillo was not engaged in a protected activity because she was fired after her FMLA leave had expired. The Court agrees.
Murillo's FMLA leave undisputedly began on April 1, 2020. ECF Nos. 26 at 386; 38 at 3. Granbury twice notified Murillo that her FMLA leave would expire on June 23, 2020, and thus she must return to work on June 24. ECF Nos. 16 at 12; 26 at 381-82. Murillo indicated that she understood that she had to return to work on June 24. ECF No. 26 at 382. Murillo's absence on June 24, therefore, was not a leave of absence protected by the FMLA. Murillo counters that Granbury should have considered three citywide holidays that occurred during her 12-week FMLA leave, thus extending FMLA leave until June 29, 2020. ECF No. 16 at 12 n.11. But Murillo offers no authoritative support for her argument, and neither the FMLA nor the Families First Coronavirus Response Act mention anything about holidays being exempt from the FMLA leave calculation. To the contrary, the Department of Labor issued guidance stating that "[f]or purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave." 29 C.F.R. § 825.200(h).
Murillo has therefore failed to establish that she was engaged in a protected activity when she was fired.1 Because she has failed to establish the first element of her prima facie retaliation claim, the Court need not address the remaining elements. Summary judgment for Granbury is granted.
Murillo contends that Granbury violated her equal protection and substantive due process rights guaranteed to her by the Fourteenth Amendment when it fired her in violation of 42 U.S.C. § 1983. ECF Nos. 16 at 33-35, 40-41; 38 at 16-22. "Municipal liability under . . . § 1983 requires proof of 1) a policymaker; 2) an official policy; 3) and a violation of constitutional rights whose 'moving force' is the policy or custom." Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003); see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "Municipal liability cannot be sustained under a theory of respondeat superior." Rivera, 349 F.3d at 247 (citing Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). Instead, "the unconstitutional conduct must be directly attributable to the municipality through some sort of official action or imprimatur; isolated unconstitutional actions by municipal employees will almost never trigger liability." Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001) (footnote omitted).
Murillo cannot establish the first or third elements of her Monell claims. As to the first element, she fails to identify a policymaker who could be held responsible for the allegedly unconstitutional policy because she concedes that Granbury's final policymaker did not know about the allegedly unconstitutional policy. Murillo correctly asserts in her amended complaint that the Granbury City Council is Granbury's final policymaker. ECF No. 16 at 41. In her response to Granbury's motion for summary judgment, however, she contends that two Granbury employees were policymakers by delegated authority who knew about and enforced the allegedly unconstitutional policy. ECF No. 38 at 18. Importantly, Murillo then concedes that there is no evidence that "the City Council, [Granbury's] statutory policymaker, was aware of, approved, or otherwise knew about the [unconstitutional] policy and its implementation." ECF No. 38 at 18. Because Murillo acknowledges that the final policymaker—the City Council—did not know about the allegedly unconstitutional policy, the policy cannot be "directly attributable to the municipality." Rivera, 349 F.3d at 247. Murillo therefore fails to establish the first element of her § 1983 claims. But even if not,2 the Court finds no violation of Murillo's constitutional rights.
Turning to the third element, the Court finds that there was no constitutional violation, which is required to state a prima facie Monell claim. See Hicks-Fields v. Harris Cnty., 860 F.3d 803, 808 (5th Cir. 2017). Murillo asserts that she was discriminated against because of her sex in violation of § 1983, given that she was fired after using FMLA leave to take care of her daughter when the Covid-19 pandemic shut down her daughter's daycare. ECF No. 16 at 33-35, 40-41. But the alleged discrimination that Murillo suffered has nothing to do with her sex. Even assuming that there was a discriminatory policy—a premise the Court is dubious about assuming—the policy would be discriminatory against all parents regardless of sex. Because Murillo has pointed to no evidence that she was discriminated against because she is a woman and does not assert a claim that the Granbury policy unconstitutionally discriminated against parents of...
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