MALDONADO v. FRIO COUNTY, TEXAS (W.D.Tex. 2004)

XAVIER RODRIGUEZ, District Judge

On this date, the Court considered (1) Plaintiff's Motion to Reconsider the Court's Order of May 7, 2004 (docket no. 60) and Defendants' Response, (2) the Court's sua sponte Motion for Summary Judgment, as described in that Order, and Defendants' Brief in Support of the Court's Sua Sponte Motion for Summary Judgment, and (3) whether Plaintiff should have to pay Defendants' reasonable expenses incurred in making their motion to compel. After careful consideration, the Court will deny Plaintiff's Motion to Reconsider and will grant summary judgment on Plaintiff's remaining claim under the FMLA. Thus, no claims remain for trial and the June 7 trial setting is VACATED. Further, the Court concludes that Plaintiff should pay the reasonable expenses associated with the motion to compel.

On May 7, 2004, the Court granted Defendants' Motions for Summary Judgment. Defendants filed their motions on April 7, 2004, and although Plaintiff's Response was due by April 21 and trial was set for June 7, Plaintiff had not filed a response to the motions at the time the Court ruled. Despite Plaintiffs failure to respond, however, the Court did not treat the motions as unopposed and considered them on the merits.

On May 10, Plaintiff filed a Motion to Reconsider the Court's Order. Plaintiff states that she filed a response on May 4, but that it was returned because Plaintiffs attorney had failed to sign it. Although that response was untimely, Plaintiff argued therein that it was timely because she did not "receive official service" of the motion until April 28, 2004, when her attorney picked the envelope up from the post office. Thus, Plaintiff contends, her Response was not due until May 10. Plaintiff is mistaken. Local Rule CV-7(d) provides that "[if] any party opposes a motion, the respondent shall file a response and supporting documents as are then available within eleven (11) days of service of the motion." Under the Federal Rules of Civil Procedure, service by mail is complete on mailing, not upon receipt. FED. R. CIV. P. 5(b)(2)(B). Thus, under Rule 6, adding three days because Defendant served the motion by mail, Plaintiff's response was due April 21. Thus, Plaintiff's response was untimely.

Nevertheless, because the Court prefers to avoid punishing the client for the attorney's mistakes, the Court will consider Plaintiff's Responses to Defendants' Motions for Summary Judgment, filed with the motion to reconsider, to see if they warrant a departure from the Court's May 7 conclusion that summary judgment should be granted.

With regard to Plaintiff's claims for intentional infliction of emotional distress, Plaintiff states that she does not object to the summary judgment on the claim for IIED against Cantu. Thus, the Court will not reconsider the issue. With regard to the IIED claim against Frio County, Plaintiff raises no discussion or evidence, and thus the Court will not reconsider its conclusion on that claim either.

With regard to the claim of a violation of the FMLA's proscriptive provisions against Frio County, Defendants moved for summary judgment on Plaintiff's claim on the basis that she failed to establish a prima facie case and that there is no evidence of pretext. See Frio County's Motion for Summary Judgment at 5-6. The Court previously concluded that, "[e]ven assuming Plaintiff has established a prima facie case, she cannot survive summary judgment because she has failed to offer any evidence rebutting Frio County's legitimate, nondiscriminatory reason for her termination." With regard to the prima facie case, Plaintiff states that she offered evidence that she was replaced by a male. Although this fact is disputed, it is immaterial at this point, given the Court's assumption that Plaintiff established her prima facie case. Thus, this fact does not warrant denying summary judgment.

Plaintiff also states that she proffered evidence of disparate treatment, which could raise a fact issue regarding pretext. See Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003). However, to establish disparate treatment, a plaintiff must show that the employer gave preferential treatment to another employee under nearly identical circumstances; that is, the misconduct for which the plaintiff was discharged must have been nearly identical to that engaged in by other employees who received favorable treatment. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001). Plaintiffs evidence is her EEOC affidavit, in which she states that a male, Eric Cortez, had four customer complaints made against him since November 2001 but was not discharged. She provides no evidence regarding the nature of the customer complaints or whether Cortez received any written warnings for other behavior; she even states that she is unaware whether Cortez received counseling for the complaints. In contrast to Cortez, as Plaintiff recognizes, Plaintiff received three written warnings for various infractions, only one of which was customer complaints. Plaintiff had written warnings for poor performance, failing to show for work, and for customer complaints, plus three additional customer complaints on one day that resulted in verbal counseling, Thus, Plaintiff has not established that Cortez received preferential treatment under "nearly identical circumstances."

Last, Plaintiff argues that "the record clearly establishes Plaintiff's belief that she was being discriminated against on the basis of her gender." Although the Court has no doubt that Plaintiff genuinely believes that her discharge was the result of discrimination, a plaintiff's own good faith belief that she has been discriminated against cannot be the basis of judicial relief. Little v. Republic Ref. Co., Ltd, 924 F.2d 93, 96 (5th Cir. 1991). Thus, Plaintiff fails to raise a fact issue that would preclude summary judgment on her proscriptive rights FMLA claim against Frio County. For these same reasons, the Court reaffirms its prior conclusion that Hector Cantu is entitled to qualified immunity on Plaintiff's proscriptive rights FMLA claim against him in his individual capacity.

With regard to her pregnancy discrimination claim against Frio County, this Court concluded that, "[f]or the same reasons stated in the Court's analysis of the FMLA retaliation claim," summary judgment was appropriate in favor of Frio County on the pregnancy discrimination claim. A claim brought under the Pregnancy Discrimination Act is analyzed like any other Title VII discrimination claim. Laxton, 333 F.3d at 578. Thus, because Plaintiff's pregnancy discrimination claim also relies on circumstantial evidence, the same analysis applies as was used to evaluate Plaintiff's proscriptive rights FMLA claim. Again, assuming that Plaintiff established a prima facie case, she fails to proffer evidence indicating that the County's legitimate nondiscriminatory reasons for her termination were a pretext for discrimination.

Plaintiff argues that the fact that she was sent to the Dilley office, which was about 17 or 18 miles from Pearsall, after she informed Cantu that she was pregnant and had placenta previa raises an inference of discrimination. She testified that because they had just moved in, there were boxes on the floor, and she "had to be going down and picking up the license plates." She testified, "I feel that a man should have been sent over there" and that she "had never set foot in that office during her employment and at the time that [she] was pregnant [she] was asked to do so." Thus, she asserts that she was treated differently after she requested maternity leave under the FMLA. Even taking these facts as true, however, they do not raise an inference of pregnancy discrimination. Plaintiffs complaint is not with the transfer to the Dilley office, but with her termination. As concluded above, she has failed to establish that the County's asserted reasons for her termination are unworthy of credence. Plaintiff does not contend that any of events that the County cites as a legitimate basis for her termination did not occur. The Court concludes that the evidence that Plaintiff was transferred to Dilley when Cantu knew she was pregnant, standing alone, does not lead to an inference that the asserted reasons for her discharge were not the true reasons. In any event, to the extent that the transfer to Dilley could lead to such an inference, it would be too weak, in light of the evidence that no discrimination occurred, to preclude summaryjudgment.

For these reasons, Plaintiffs Motion to Reconsider (docket no. 60) is DENIED.

In the Court's May 10 Order, the Court indicated its intent to consider summaryjudgment on Plaintiff's prescriptive/substantive rights FMLA claim sua sponte and allowed Plaintiff ten days, or until May 24, to come forward with evidence or argument to oppose summaryjudgment. Plaintiff has failed to respond in any way. Thus, the Court will now consider summary judgment on the claim.

As noted in the Court's prior Order, the analysis in a substantive rights FMLA claim is simply whether the plaintiff has established that she is entitled to the benefit she claims. An employee who meets the tenure and hours requirements of 29 U.S.C. § 2611(2)(A) is entitled to as many as twelve weeks of unpaid leave over the course of twelve months for the birth of a child. An employee must provide notice to an employer that she plans to take FMLA leave. 29 U.S.C. § 2612(e)(2).

The parties do not appear to dispute that Frio County was a covered employer, that Plaintiff was an eligible employee at the time she requested and was granted FMLA leave, and that Plaintiff provided notice. However, Plaintiff has provided no evidence that any time during which she was eligible for leave was her right denied or interfered with in any way. The undisputed evidence is that Plaintiff was given all requested leave associated with her pregnancy. The evidence demonstrates that Cantu granted Plaintiff's request for leave for her childbirth and that Cantu had routinely granted Plaintiff's request for time off for doctor's visits and morning sickness. Even Plaintiff's Complaint confirms that the requested leave was granted. Thus, the only interference or denial claim Plaintiff could state is based on the fact that she was terminated before she was scheduled to begin her leave. This claim more closely resembles an FMLA retaliation claim, on which the Court has already granted summary judgment. The Court concludes that when Plaintiff was fired, she was no longer an eligible employee, and thus Defendant did not unlawfully deny her or interfere with her rights under the FMLA.

This case is similar to Serio v. Jojo's Bakery Restaurant, 102 F. Supp.2d 1044 (S.D. Ind. 2000), in which Plaintiff was terminated shortly after requesting medical leave and argued essentially that by ending his employment, his employer effectively denied his FMLA request. Id. at 1051. The district court properly recognized the "important caveat" that "[a]n employee who requests or takes protected leave under the FMLA is not entitled to any greater rights or benefits than he would be entitled to had he not requested or taken leave." Id. Therefore, an employer is entitled to dismiss an employee for any lawful reason at anytime, whether before, during, or after an employee requests or takes leave pursuant to the FMLA, as long as the employer does not discriminate or retaliate against the employee for requesting or taking such leave. Id.; see also Gunnell v. Utah Valley State College, 152 F.3d 1253, 1262 (10th Cir. 1998) ("[A]n employee who requests FMLA leave would have no greater protection against his or her employment being terminated for reasons not related to his or her FMLA request than he or she did before submitting the request."). Cf. 29 C.F.R. § 825.216(a) (noting that employee may be laid off or refused return to shift that has been eliminated, as long as the action would have been taken in the absence of FMLA leave). To limit an employer's ability to terminate an employee for performance issues simply because the employee requested medical leave would vest the employee with greater rights and benefits than she would have enjoyed had she continued working without requesting such leave. See Serio, 102 F. Supp.2d at 1052. Thus, simply because Plaintiff's request for medical leave had been granted, she was not entitled to be retained until she completed her leave despite poor performance or other reasons justifying termination.

Because Plaintiff was not entitled to any greater rights by virtue of her request for FMLA leave, because the undisputed evidence demonstrates that all of Plaintiff's requests for leave were granted, and because she was terminated before the time she intended to exercise her leave and was thus no longer eligible for her FMLA leave, the Court grants summary judgment for Defendant Frio County on Plaintiff's prescriptive substantive rights FMLA claim. For these same reasons, the Court grants summary judgment in favor of Hector Cantu on the basis of qualified immunity. Accordingly, no claims remain for trial in this case.

On February 3, 2004, this Court granted Defendants' Motion to Compel and ordered Plaintiff to show cause why reasonable expenses incurred in making the motion, including attorney's fees, should not be awarded to Defendants. After receiving no response, the Court issued a second order on March 22 ordering Plaintiff to show cause no later than April 6 why reasonable expenses and fees should not be awarded to Defendants. Plaintiff responded on April 6, asking the Court to stay any award of expenses because Plaintiff had responded to the discovery; Plaintiff would supplement the discovery as required; Plaintiffs inability to comply with the discovery request "was based primarily on other demands that, unfortunately, precluded her from providing the necessary responses to undersigned counsel in a timely fashion"; and Plaintiff would cooperate in all future discovery. Plaintiff provided an affidavit, in which she states that the reasons for her delays in responding to discovery "are based on the fact that [she is] a mother of three children and a housewife" and in addition, she holds a full-time job. She asserts that these responsibilities keep her busy on a full-time basis and that she is doing her best to meet deadlines. Plaintiff's response to the show cause order also argues that the contemplated sanctions are more severe than necessary to promote full compliance with the rules.

Rule 37(a)(4)(A) provides that "[i]f [a] motion [to compel] is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust."

The Court concluded in its February 3 Order that Defendants' counsel had demonstrated that he had in good faith conferred or attempted to confer with Plaintiff in an effort to secure discovery without court action. Thus, Plaintiff will be excused from Rule 37's requirements only if the failure to respond was substantially justified or if other circumstances make an award of expenses unjust. The Court concludes that the failure to respond was not substantially justified. Although Plaintiff may be busy, she voluntarily chose to file this lawsuit and should have been willing to devote the time necessary to comply with the Federal Rules of Civil Procedure and to develop her lawsuit. The Court further concludes that no other circumstances exist that would make an award of expenses unjust. Accordingly, the Court concludes that Plaintiff should be required to pay Defendants' reasonable expenses incurred in making the motion to compel.

Plaintiff's Motion to Reconsider (docket no. 60) is DENIED. Defendants' Motion for Leave to File Brief in Support of the Court's Sua Sponte Motion for Summary Judgment (docket no. 61) is GRANTED. The Court grants summary judgment in favor of Defendants on Plaintiff's substantive rights FMLA claim. Because no claims remain for trial, the Court VACATES the June 7 trial setting. With regard to the Court's award of discovery sanctions against Plaintiff, Defendants are ORDERED to submit an itemized list of expenses, including attorney's fees, incurred in making Defendants' Motion to Compel no later than June 11, 2004.