Nadeau v. Echostar
| Decision Date | 30 October 2013 |
| Docket Number | EP-12-CV-433-KC |
| Parties | LEAH A. NADEAU, Plaintiff, v. ECHOSTAR; ECHOSPHERE L.L.C.; and DISH NETWORK L.L.C., Defendants. |
| Court | U.S. District Court — Western District of Texas |
On this day, the Court considered (1) Defendants' Motion for Summary Judgment (the "Summary Judgment Motion"), ECF No. 20; (2) Defendants' Motion to Strike Portions of the Affidavit of Leah Nadeau (the "Motion to Strike"), ECF No. 30; and (3) Plaintiff's First Amended Motion for Sanctions for Violation of Local Rule CV-88(b) and (d) With Regard to Mediation (the "Motion for Sanctions"), ECF No. 34, in the above-captioned case (the "Case"). For the reasons set forth below, the Summary Judgment Motion is GRANTED. The Motion to Strike is DENIED as moot; the Court, even considering Plaintiff's Affidavit in its entirety, grants summary judgment to Defendants on all claims, so the Court need not assess whether certain portions of the affidavit are not properly part of the summary judgment record. See Hernandez v. Napolitano, No. EP-10-CV-480-KC, 2012 WL 641033, at *1 (W.D. Tex. Feb. 27, 2012) (Cardone, J.). The Motion for Sanctions is DENIED.
On or about September 24, 2012, Plaintiff filed suit against Defendants in the 168thJudicial District Court of El Paso County, Texas. Notice of Removal, ECF No. 1, 1 (the "Notice of Removal"). Defendants removed the Case to this Court on October 29, 2012. Id. at 1. Plaintiff had previously filed a petition against Defendants in state court on January 28, 2011, and an amended petition in August 2011, but Plaintiff never served or attempted to serve either of these petitions on Defendants. Pl.'s Resp. to Proposed Undisputed Facts ¶¶ 21-23; Defs.' Proposed Undisputed Facts ¶¶ 21-23; Pl.'s Counsel's Aff. ¶4.
Plaintiff, with the Court's leave, filed her Third Amended Complaint (the "Amended Complaint") on January 2, 2013. ECF No. 11. The Amended Complaint alleges claims under the Americans With Disabilities Act of 1990 (the "ADA") and the Age Discrimination in Employment Act (the "ADEA"), as well as common-law causes of action for negligent supervision and intentional infliction of emotional distress. Pl.'s Am. Compl. ¶¶ 1-2.
On January 23, 2013, Defendants filed their Answer, ECF No. 15, as well as Defendants' Partial Motion to Dismiss for Failure to State a Claim (the "Partial Motion to Dismiss"), ECF No. 16. The Court granted the Partial Motion to Dismiss on April 19, 2013, thereby dismissing Plaintiff's claims for negligent supervision and intentional infliction of emotional distress. Order, ECF No. 17. As a result, the claims currently remaining in the Case are Plaintiff's statutory claims for employment discrimination, retaliation, wrongful termination, and hostile work environment1 under the ADA and ADEA. See Pl.'s Am. Compl. ¶ 1.
Defendants filed the Summary Judgment Motion, which requests summary judgment in Defendants' favor on each of these remaining claims, on July 22, 2013. Summ. J. Mot. 1. Attached to the Summary Judgment Motion are Defendants' Proposed Undisputed Facts, ECFNo. 20-1, a declaration by Defendants' human resources manager Yvette Delgado (the "Delgado Declaration"), ECF No. 20-2, various exhibits ("Defendants' Exhibits"), ECF No. 20-2, and excerpts of Plaintiff's deposition testimony ("Plaintiff's Deposition"), ECF No. 20-2.
Plaintiff filed a response to the Summary Judgment Motion ("Plaintiff's Response") on August 20, 2013.2 ECF No. 28. Attached to the Response is an affidavit from Plaintiff ("Plaintiff's Affidavit"), ECF No. 28-1, and Plaintiff's Response to Proposed Undisputed Facts, ECF No. 28. On August 22, 2013, Defendants filed a reply to the Response ("Defendants' Reply"). ECF No. 29. On the same day, Defendants also filed the Motion to Strike, which seeks to strike portions of the Affidavit from the summary judgment record. Mot. to Strike 1-9.
On September 25, 2013, Plaintiff filed the Motion for Sanctions, alleging that Defendants and their counsel violated Federal Rule of Civil Procedure 16(f) and Local Rule CV-88 by arriving at a mandatory mediation without settlement authority or an intention to negotiate in good faith. Mot. for Sanctions 1-5. Defendants applied to file their Response to the Motion for Sanctions under seal on October 2, 2013. ECF No. 35. The Court granted that application on October 3, 2013. Defendants then accordingly filed under seal Defendants' Response to Plaintiff's Motion for Sanctions, ECF No. 36.
The Court here recounts the facts relevant to its disposition of the Summary Judgment Motion. As is appropriate on summary judgment, where the parties have submitted evidence of contradictory facts, the Court resolves factual controversies in favor of the nonmovant. See, e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) ("Liquid Air").
Defendants are satellite television providers. Pl.'s Am. Compl. ¶¶ 4-6, 8-10, 12-13. Plaintiff began working for Defendants at their call center as a customer service representative around 1999 or 2000. Pl.'s Aff. ¶ 2; Pl.'s Dep. 14; Defs.' Answer ¶ 4; Defs.' Proposed Undisputed Facts ¶ 1; Pl.'s Resp. to Proposed Undisputed Facts ¶ 1. A few years thereafter, Defendants promoted Plaintiff to a coach position with supervisory duties. Defs.' Proposed Undisputed Facts ¶ 1; Pl.'s Resp. to Proposed Undisputed Facts ¶ 1; Defs.' Ex. 1. At the time of the events relevant to the Case, Plaintiff was one of Defendants' oldest employees. Pl.'s Resp. ¶ 2; Pl.'s Aff. ¶ 4. Some years prior to the events at issue in the Case, Plaintiff suffered from chronic anxiety problems, and had previously requested and received medical leave from Defendants pursuant to the Family and Medical Leave Act, 29 U.S.C. §§ 2601-54 ("FMLA"). Defs.' Proposed Undisputed Facts ¶ 2; Pl.'s Resp. to Proposed Undisputed Facts ¶ 2; Defs.' Ex. 2-3.
In July 2009, at the age of 49, Plaintiff was diagnosed with diverticulitis, a digestive disease correlated with advanced age. Pl.'s Resp. ¶ 2; Pl.'s Aff. ¶ 3. Plaintiff was hospitalized and missed work for a week. Pl.'s Aff. ¶ 3. It appears Defendants excused this absence as medical leave under the FMLA. Id. ¶ 13.
One symptom of Plaintiff's diverticulitis was the need to use the restroom more often than other employees, and more often than was permitted under Defendants' company policy. Id. ¶¶ 4-5. As a result, when Plaintiff returned to work in July 2009, she requested an exception to Defendants' restroom use policy (the "First Accommodation Request"). Id. ¶ 5. Defendants granted this exception. Pl.'s Dep. 118, 120.
After Plaintiff left the hospital and made the First Accommodation Request, her relationships with her co-workers and supervisors soured. Other employees began ignoringPlaintiff while greeting other employees in a more welcoming and friendly manner. Pl.'s Aff. ¶¶ 6, 11. On one occasion, one of Plaintiff's managers, Rafael Zamudio3 ("Zamudio"), tauntingly chanted "Leah looking sick" at Plaintiff in front of her fellow employees. Id. ¶¶ 6, 24. Some employees put documents in folders rather than handing directly them to Plaintiff, or directed Plaintiff to set documents for review on her supervisor's desk instead of handing them directly to the supervisor. Id. ¶¶ 6, 9-10. Plaintiff suspects that these employees secretly and erroneously believed that her diverticulitis was contagious and therefore sought to avoid physical contact with her, although Plaintiff presents no evidence that would substantiate this suspicion beyond her own subjective belief. See id.
Plaintiff was hospitalized a second time in October 2009 to undergo a painful and disabling procedure related to her diverticulitis. Id. ¶ 7. Plaintiff does not state how much work she missed during her second hospitalization. See id. Plaintiff alleges that when she returned to work after the second hospitalization, her co-workers treated her even more unpleasantly than before. Id.
In January 2010, Defendants assigned Plaintiff the duty to supervise the worst-performing employees, instead of the high-performing employees she had previously supervised. Id. ¶ 8. Defendants also switched Plaintiff's assignments every two weeks, such that Plaintiff was regularly required to learn a new position. Id. Defendants also gave Plaintiff a less desirable night shift. Id. ¶¶ 8, 10. Various employees of Defendants, including managerial employees, continued to treat Plaintiff rudely during this time period. See id. ¶ 24. These circumstances made it difficult for Plaintiff to maintain her previous level of performance. Id. ¶ 8.
On March 24, 2010, Plaintiff attended a meeting with her co-workers and a manager named Jorge Najera ("Najera"). At this meeting, Najera, in front of Plaintiff and her co-workers, said "the job is not for you if you have a health problem, you will still get demoted and you could still loose [sic] your job." Id. ¶ 24. Najera stared directly at Plaintiff while making this statement. Id. Najera further "stated he did not care because he had a college degree." Id. Najera knew at the time he made this statement that Plaintiff suffered from health problems. Id.
Sometime before April 15, 2010, Plaintiff learned that some employees at the El Paso location would soon be demoted. Pl.'s Dep. 65, 141. Plaintiff admits that Defendants formulated the demotion criteria and made the decision to demote these employees prior to April 15, 2010; it appears Defendants finalized the criteria on April 9, 2010 or shortly thereafter. Id. at 141; Defs.' Ex. 4. An internal e-mail from Zamudio to other managers sent on April 9, 2010, reflects that Defendants planned to assess each employee on the basis of their performance and leadership scores and demote the five lowest-scoring employees. Defs.' Ex. 4. Defendants would then notify each demoted employee individually during a meeting with a manager and a representative from the human resources department. Id...
To continue reading
Request your trial