Sandel-Garza v. BBVA Compass Bancshares, Inc.

• Decision Date: 07 May 2020
• Docket Number: CIVIL ACTION NO. 5:18-CV-128
• Parties: MARTHA SUSANA SANDEL-GARZA, Plaintiff, v. BBVA COMPASS BANCSHARES, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

MARTHA SUSANA SANDEL-GARZA, Plaintiff, v. BBVA COMPASS BANCSHARES, INC., Defendant.

CIVIL ACTION NO. 5:18-CV-128

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION

May 7, 2020

MEMORANDUM AND ORDER

Plaintiff Martha Susana Sandel-Garza, a former employee of Defendant BBVA Compass Bank, brought this action against her former employer after her termination, alleging age and disability discrimination in violation of federal and state law. BBVA now moves for summary judgment (Dkt. No. 37). Having carefully considered the parties' arguments, the record, and the applicable law, the motion is GRANTED in part and DENIED in part. Because Plaintiff has not provided evidence of age discrimination, summary judgment on that claim is GRANTED. Plaintiff has, however, demonstrated genuine issues of material fact as to whether BBVA failed to reasonably accommodate her disability and terminated her because of it. Summary judgment on Plaintiff's disability discrimination claims is DENIED.

I. BACKGROUND

A. Plaintiff's request for medical leave is approved.

BBVA is an Alabama-headquartered bank with over 600 branches (Dkt. No. 37-3 at 2). In 2003, Plaintiff began work at BBVA's University Branch in Laredo, Texas, as a bank teller (Dkt. No. 41-1).¹ A few years later, she was promoted to Financial Service Advisor, which involved marketing "retail banking products and services to consumers" (Dkt. Nos. 37-3 at 4; 37-4 at 41). Plaintiff reported to Mario Cantu, the University Branch Manager, and maintained a good performance record throughout her employment (Dkt. Nos. 37-3 at 19; 37-7 at 33; 41-31 at 15).

In early 2017, Plaintiff was diagnosed with breast cancer. She requested medical leave, and her doctor submitted a Certification of Health Care Provider, which outlined her diagnosis and anticipated treatment (Dkt. No. 37-4 at 67-70, 73). Plaintiff would need several surgeries followed by radiation treatment and endocrine therapy (id. at 73). Her "estimate[d] ... period of incapacity" was from May 23, 2017 to November 23, 2017 (id. at 74).

BBVA contracts with ADP, a third-party vendor commonly known as 'BBVA Leave Administration,' to administer the bank's leave-of-absence process (Dkt. No. 37-3 at 3). If a leave request is approved by ADP, it is also approved by BBVA, and employees may rely on a decision made by ADP "just the same as if it came directly from the bank" (Dkt. No. 37-2 at 7; see also id. at 42). ADP approved Plaintiff's request for three months of FMLA leave followed by three months of non-FMLA leave (Dkt. No. 37-5 at 2).²

Unable to return when her leave was set to expire, Plaintiff requested about a six-week extension from November 24, 2017 to January 3, 2018 (Dkt. No. 37-5 at 18). Plaintiff's doctor submitted another certification to that effect (id. at 43-46). Because the doctor's paperwork was missing information, ADP "pended" Plaintiff's request and later denied it (Dkt. Nos. 37-5 at 48-50; 37-6 at 2-3).

On January 3, 2018, Plaintiff's doctor submitted a revised certification listing the following day, January 4, as the end of Plaintiff's period of incapacity (Dkt. No. 41-8 at 1-4). On January 8, 2018, the doctor submitted a Return to Work Certification, which "released [Plaintiff] to regular duty with NO restrictions" (Dkt. No. 37-6 at 26-28; see also Dkt. No. 41-23). On January 15, 2018, ADP retroactively approved Plaintiff's leave request through January 8 (Dkt. Nos. 37-6 at 36-37; 37-8 at 64, 70-71).³ The approval notice stated, "If you have received a previous leave status notification ..., this notice will supersede the previously communicated information" (Dkt. No. 37-8 at 64).

B. While Plaintiff is on leave, BBVA fills her position.

Meanwhile, in August 2017, Cantu emailed Tasha Hardy, the H.R. Partner⁴ assigned to the University Branch, for an update on Plaintiff's return date (Dkt. No. 37-5 at 10).⁵ Hardy responded that Plaintiff was on leave until November 23, 2017 but had "exhausted her FMLA (job protection)" (Dkt. No. 37-5 at 9). Cantu'ssupervisor, District Manager Frank Gallegos, wrote back, "The fact that ... job protection is exhausted, what do we need to do to replace her?" (id.).

Hardy asked Cantu for an "email detailing how [Plaintiff's] absence is causing a business hardship to the branch," explaining that if BBVA was "unable to accommodate [Plaintiff's] additional leave, [Cantu] will need to explain how this would cause a business hardship." Hardy cautioned, "[W]e have to consider [the] ADA, which could also offer job protection" (Dkt. No. 37-5 at 8).

Cantu sent Gallegos a rough draft of the email he planned to send Hardy (Dkt. Nos. 37-5 at 4; 37-7 at 19). After receiving Gallegos's edits, Cantu sent a longer email to Hardy that described the personnel shortage at the University Branch (Dkt. Nos. 37-5 at 7-8; 37-7 at 19). On September 28, 2017, Hardy approved Gallegos and Cantu's request to post Plaintiff's position. Hardy also wrote:

Please note that [Plaintiff] will remain as an employee of the bank and will remain in her PCN [employee number]. If she should be released to return to work after the position has been filled, then we will need to work with her about finding a new position

(Dkt. No. 41-5 at 7). After posting Plaintiff's position on its website, BBVA promoted Alexandro Carbajal, a current University Branch employee. Carbajal began his new job as a Financial Service Adviser on December 3, 2017 (Dkt. Nos. 37-2 at 46; 37-5 at 32).⁶

C. On January 5, 2018, H.R. Partner Jennifer Polnett removes Plaintiff's name from BBVA's computer system, effectively terminating her.

After Carbajal's promotion, confusion arose because Plaintiff and Carbajal were assigned the same employee number or "PCN." For instance, Gallegos asked H.R. Partner Ronnie Moore to assign a different PCN to Carbajal, who was "an add to staff, because of [Plaintiff's] FMLA situation" (Dkt. No. 37-6 at 15). Moore relayed Gallegos's request to Gery Hackney in Corporate Finance (id. at 12), who responded that both the position and its associated PCN were assigned to Plaintiff (id. at 13). Hackney wrote, "If Staff Management will consent to the replacement of [Plaintiff] by [Carbajal] I'll be glad to reassign the officer number" (id.). Michael Glidewell in Staff Management wrote to Sales Productivity Executive Guillermo Martinez, "You have a double filled PCN here. Who is leaving and when?" (id.). Martinez circled back to Gallegos, asking for "updates regarding [Plaintiff's] status" (Dkt. No. 41-14 at 7).

On January 3, 2018, as noted, Plaintiff's doctor submitted a revised certification (Dkt. No. 41-8 at 1-4). On January 4, Plaintiff advised Cantu that she was ready to come back to work; Cantu told her to "contact H.R. to get clearance" (Dkt. No. 41-14 at 7). On January 5, around 8:00 a.m., Cantu emailed Gallegos about his conversation with Plaintiff (id.). Around 1:45 p.m., H.R. Partner Christy Velez emailed H.R. Partner Melissa Edwards, "Can we find out if [Plaintiff] is coming back and is her job protected? We are now having issues with getting [Carbajal] his officer number since they are both sitting in the same PCN" (Dkt. No. 37-6 at 11). Around 2:30 p.m., H.R. Partner Jennifer Polnett emailed Edwards, "[Plaintiff] reached 180days and went to [short-term disability] without pay. Please process her out of the system in Netprofile" (Dkt. No. 41-15).⁷

In her deposition and subsequently drafted declaration, Polnett averred that BBVA has a general policy of terminating employees on leave for 180 days (Dkt. Nos. 37-2 at 11-12, 15-20; 37-3 at 3). Polnett could not identify how the policy was communicated to employees (Dkt. No. 37-2 at 21) or where the policy was written down (Dkt. No. 37-2 at 15-16).⁸ Plaintiff was terminated about two months after she reached 180 days. Polnett speculated that the delay might have been due to the holiday season, but she could not remember why she chose January 5 to terminate Plaintiff (id. at 19-20).

D. Plaintiff tries to return to work, which leads to more confusion about whether she still has a job.

Polnett did not apparently tell anyone that she had terminated Plaintiff's employment, and emails continued to circulate regarding the PCN issue. For instance, Gery Hackney wrote that he had "held out until now" on reassigning Plaintiff's PCN to Carbajal, and sought clarification from someone in authority (Dkt. No. 41-14 at 10-11).⁹

In a follow-up email, Guillermo Martinez recalled that Plaintiff had already told her branch manager that she was ready to return. He noted that Gallegos planned to discuss Plaintiff's situation with H.R. by the following Monday and advised everyone not to act until H.R. "confirms the next steps" (id. at 10). Hackney agreed to "await further instructions from the proper authority" and, in the meantime, "restored" the disputed PCN to Plaintiff (id. at 9).¹⁰ On January 7, Gallegos emailed H.R. Partner Melanie Sparks that he was thinking about transferring Carbajal to another branch because Plaintiff was "in full remission and ready to come back" (Dkt. No. 41-17 at 1).

Yet on January 8, the same day Plaintiff's doctor submitted a medical release, H.R. finished processing her Netprofile termination (Dkt. No. 37-6 at 19). Unaware that she had been terminated, Plaintiff continued to contact Cantu about her return date (Dkt. No. 41-18 at 3). Cantu emailed Melanie Sparks that, according to Plaintiff, ADP had told her she could return to work (id.). Sparks forwarded Cantu's email to Polnett and wrote, "HELP! Can you tell me if this is correct or not" (Dkt. No. 37-6 at 31). Polnett responded, "She has been released from the doctor. But her FMLA expired and she would need to apply for another position, correct?... [S]he would need to speak with her [H.R.] Partner to see if she still has her position" (id. at 30).

On January 15, after ADP retroactively approved her leave request, Plaintiff emailed Cantu to express concern over the delay.

When I called ADP ..., the

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