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October 21, 2005.

DAVID G. OCAMPO Plaintiff,

The opinion of the court was delivered by: PAMELA MATHY, Magistrate Judge


To: Honorable Fred Biery United States District Judge

Pursuant to the Order of referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge*fn1 and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(1) and rule 1 of the Local Rules for the Assignment of Duties to United States Magistrate Judges in the Western District of Texas, District of Texas, the following report submitted for your review and consideration.


  The Court has jurisdiction pursuant to 28 U.S.C. § 1332.


  On May 17, 2004, plaintiff David Ocampo commenced the present action in the 131st Judicial District Court, Bexar County, Texas.*fn2 Ocampo is suing defendant Laboratory Corporation of America dba Lab Corp ("LabCorp") for age discrimination, age-based harassment, and retaliation in violation of the Texas Labor Code, §§ 21.001 et seq. ("TCHRA").*fn3 Ocampo is seeking reinstatement to his position and pay grade, back pay, front pay, lost benefits, actual damages, exemplary damages, costs, attorney's fees, and pre and post judgment interest.*fn4 LabCorp filed an answer on June 15, 2004*fn5 and, because the parties are diverse, removed the action to the Federal District Court on June 23, 2005.*fn6 LabCorp filed its first amended answer on October 28, 2004.*fn7 The case was referred to the undersigned on March 21, 2005.*fn8 LabCorp filed a motion for summary judgment on June 15, 2005,*fn9 Ocampo filed a response on August 3, 2005,*fn10 and LabCorp filed a combined reply and motion to strike evidence on August 19, 2005.*fn11


  The following statement of facts is derived from LabCorp's factual background and supporting exhibits*fn12 which Ocampo does not dispute, unless otherwise noted.*fn13

  LabCorp provides clinical laboratory services, including routine testing of blood and tissue samples.*fn14 Thirty-five to forty-five service representatives, or drivers, are employed at LabCorp's San Antonio, Texas distribution department.*fn15 The service representatives drive company cars to make daily deliveries to clients along assigned routes and to retrieve specimens from lock boxes for transport to the laboratory for processing.*fn16 The majority of the service representatives are over the age of forty and, at the relevant time, almost half were older than Ocampo who was forty-eight in 2003.*fn17 At the relevant time, the oldest service representative was seventy-four years old.*fn18 Service representatives were supervised by Chuck Lalli, now age sixty-three, Claudio White, now fifty-seven, and, occasionally, Richard Poirier, now age fifty-six.*fn19 Supervisors reported to Laboratory Manager Sheilah Castillo, now age fifty-eight.*fn20

  Ocampo was employed as a service representative by LabCorp from November 1981 until his separation from the company in May 2004.*fn21 In February 2003, plaintiff was involved in a preventable motor vehicle accident.*fn22 Pursuant to LabCorp policy, when a preventable accident occurs, the employee is required to receive a written warning which effects the performance rating on the employee's annual evaluation.*fn23 Based on his performance evaluation, in March 2003, plaintiff received a 2.25% pay raise, the maximum he could earn under LabCorp's compensation policy.*fn24

  LabCorp requires overtime hours to be kept to a minimum, and routes persistently accruing overtime are reviewed and restructured.*fn25 In October 2003, Ocampo's route was restructured to remove one regular evening stop based on Lalli's observation that the route could not be accomplished in an eight-hour day.*fn26 Lalli estimated the stop added twenty to thirty minutes each night to Ocampo's route.*fn27 Approximately fifteen service representatives had their routes restructured in 2003.*fn28 After the route change, Ocampo continued to accrue overtime on a regular basis, and he was among the top overtime earners in 2003 and 2004.*fn29 White was responsible for scheduling vacation time.*fn30 To provide fair access to the most coveted vacation times, LabCorp guaranteed that the first three persons, regardless of seniority, who requested a specific time period would be allowed to take vacation at that time.*fn31 Ocampo submitted timely requests for, and received, time off at Thanksgiving and Christmas 2002 and New Year 2003.*fn32 Ocampo was not one of the first three employees requesting time off at Thanksgiving and Christmas 2003.*fn33 But, because of a cancellation at Thanksgiving 2003, Ocampo did receive the time off as requested.*fn34 Even though Ocampo was not able to take vacation on all dates of first choice, he received the full amount of vacation time in 2003.*fn35

  During his employment, plaintiff received a copy of LabCorp's employment policy.*fn36 The employment policy reflects that LabCorp does not tolerate discrimination or harassment and that employees were expected to report such conduct to their managers, the local Human Resources representative, or corporate Human Resources.*fn37 Ocampo was aware of the terms of the employment policy.*fn38 LabCorp records do not reflect that Ocampo complained of unlawful harassment or discrimination to a manager or Human Resources representative.*fn39 Nevertheless, on November 24, 2003, Ocampo filed a charge of age and national origin discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Texas Commission on Human Rights.*fn40 Ocampo specifically complained LabCorp denied him a full merit pay raise and requested vacation days and eliminated his overtime by restructuring his route.*fn41 Ocampo did not discuss his charge of discrimination with anyone at work.*fn42 After his termination, Ocampo told coworkers that he felt he had been the victim of discrimination, but he did not complain to LabCorp management.*fn43 The EEOC issued a right to sue letter on March 9, 2004, and TWC issued a notice of right to file a civil action on March 18, 2004.*fn44

  On April 15, 2004, LabCorp received a call from Allied Institute of Medicine ("Allied"), a new client on Ocampo's route, complaining that specimens in the lock box had not been retrieved.*fn45 Allied was a "blue bag" account, meaning specimen processing required extra care.*fn46 When questioned, Ocampo claimed he had been waved off by an Allied employee and thought meant there were no specimens for pick up.*fn47 Ocampo was counseled for failing to comply with proper procedure, but he was not disciplined.*fn48 The next day, Ocampo went inside Allied's office and approached Medical Assistant Michelle Ramirez about the missed pick up.*fn49 Ramirez complained to LabCorp's account manager, Rachele Heedum, that Ocampo was confrontational and accused her of getting him in trouble with LabCorp.*fn50 Heedum reported the incident to Ocampo's supervisors.*fn51 Ocampo admitted the conversation but denied the confrontation.*fn52 The next day, Ramirez complained that Ocampo had again loudly confronted her in front of patients and staff, including Leticia Barrones who commented on Ocampo's behavior.*fn53 Ramirez asked that Ocampo be barred from entering Allied's office.*fn54 Heedum provided Lalli and White with a memorandum regarding Allied's complaint about Ocampo's behavior.*fn55

  White discussed the matter with Castillo, who regarded Ocampo's conduct as a breach of LabCorp's Standards of Business Conduct.*fn56 LabCorp's standards prohibit employees from discussing with clients internal grievances or concerns or confronting clients about complaints.*fn57 Castillo concluded Ocampo's conduct warranted written discipline, and she directed White to draft a written warning.*fn58 White also arranged a meeting with Castillo and Ocampo at the end of his shift on May 6, 2004, for the purpose of administering the warning.*fn59 Ocampo refused to attend the meeting, said the matter had already been discussed, stated he did not have to speak to White, and left the premises, ignoring White's directives to stay.*fn60 Ocampo understood he would be disciplined for refusing to follow White's directives.*fn61 White informed Castillo of Ocampo's actions and, because White would be off the next morning, Castillo asked Lalli to bring Ocampo to her office.*fn62 On May 7, 2004, when Lalli instructed Ocampo to accompany him to Castillo's office, Ocampo refused.*fn63 Lalli instructed Ocampo not to leave on his scheduled route and went to consult Castillo.*fn64 Ocampo alleges Lalli told him to go home.*fn65

  Castillo and Lalli met with Michele Warneke, LabCorp's Divisional Director of Human Resources, and Carol Franz, LabCorp's San Antonio Senior Human Resources Consultant.*fn66 Warneke and Castillo concluded that Ocampo's repeated insubordination justified his immediate termination.*fn67 Lalli was sent to advise Ocampo one more time that he needed to meet with Castillo or, if necessary, to secure the return of LabCorp's property, including keys and badge.*fn68 When Lalli returned to the distribution area, he discovered Ocampo had left the premises.*fn69 Lalli called Ocampo's home and left a message for him to return the car, keys, and badge.*fn70 Ocampo complied and commented alternatively that he had been fired or that he had quit.*fn71 Ocampo did not file charge of discrimination with the EEOC or the TWC subsequent to his termination.*fn72


1. Whether LabCorp's motion to strike evidence should be granted.
2. Whether Ocampo used due diligence in serving LabCorp. 3. Whether Ocampo exhausted administrative remedies for events occurring after November 24, 2003.
4. Whether claims arising before May 28, 2003, are barred by limitations.
5. Whether LabCorp is entitled to summary judgment on Ocampo's age discrimination claims.
6. Whether LabCorp is entitled to summary judgment on Ocampo's harassment claim.
7. Whether LabCorp is entitled to summary judgment on Ocampo's retaliation claim.
8. Whether Ocampo failed to mitigate his damages.
9. Whether LabCorp is entitled to summary judgment on Ocampo's claim for punitive damages.
  The standard to be applied in deciding a motion for summary judgment is set forth in Federal Rule of Civil Procedure 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.*fn73
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact.*fn74 A fact is material if it might affect the outcome of the lawsuit under the governing law.*fn75 A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.*fn76 Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.*fn77

  The movant on a summary judgment motion bears the initial burden of providing the court with a legal basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact.*fn78 The burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.*fn79 All evidence and inferences drawn from that evidence must be viewed in the light favorable to the party resisting the motion for summary judgment.*fn80 Thus, summary judgment motions permit the Court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.*fn81

  The defendant may satisfy the burden to show the "absence of a genuine issue of material fact by pointing out that the record contains no support for the plaintiff's claim."*fn82 If plaintiff cannot provide some evidence to support its claim, summary judgment is appropriate.*fn83


  A. LabCorp's Motion to Strike Evidence

  LabCorp objects and has moved to strike exhibits 5, 6, and 8,*fn84 attached to Ocampo's summary judgment response.*fn85 With respect to exhibit 5, the affidavit of Mario R. Esparza, a Bexar County, Texas process server,*fn86 LabCorp specifically argues the affidavit is not competent summary judgment evidence because it was "purportedly executed and notarized on May 2, 2004, a full 22 days before the events to which it attests."*fn87 Alternatively, LabCorp argues that the sentence "Service by certified mail was signed on 05-25-04" should be stricken from the affidavit because Esparza has not testified he witnessed the signature.*fn88 LabCorp has also moved to strike an attachment to exhibit 5 because the attachment was not referenced in or authenticated by Esparza's affidavit.*fn89 As LabCorp argues, the face of the affidavit reflects it was signed and notarized on May 2, 2004, a date before the occurrence of the events addressed in the affidavit. Accordingly, the affidavit and attachment are not competent evidence and should be stricken.

  LabCorp argues exhibit 6, the purported affidavit of Luis Ramos, the legal secretary for Ocampo's counsel, should be stricken because it is not signed or witnessed and cannot be competent evidence.*fn90 Because Ramos's affidavit is not signed or notarized, LabCorp's motion to strike exhibit 6 should be granted.

  LabCorp argues exhibit 8, responses 2 and 3 from plaintiff's first responses to defendant's first set of interrogatories and requests for production, should be stricken because the exhibit is incomplete and not verified. As exhibit 8 is not complete or verified, LabCorp's motion to strike exhibit 8 should be granted.

  B. Due Diligence in Effectuating Service of Process

  LabCorp has moved for summary judgment, arguing that "Ocampo's TCHRA claims are procedurally barred . . . because Ocampo failed to comply with the statutory requirement to file and serve" his lawsuit within sixty days after receiving TWC's notice of right to file civil action."*fn91 LabCorp argues, in sum, that given the March 18, 2004 date on the TWC notice and the three day "mailbox rule," Ocampo failed to serve LabCorp with service of process on or before May 20, 2004, as required by Texas law.*fn92 LabCorp contends it was served with citation and the petition through its registered agent, CT Corporation System, on May 27, 2004.*fn93 In response, Ocampo argues LabCorp has no evidence of when he received the TWC notice of right to sue and cannot establish when the statute of limitations began to run.*fn94 Assuming the applicability of the "mailbox rule," Ocampo argues he used due diligence in effectuating service on LabCorp.*fn95 Ocampo argues the earliest he could have received TWC's March 18, 2004 notice was March 22, as March 21 was on a Sunday, and sixty days would have expired on Friday May 21, 2004.*fn96 Ocampo contends the evidence shows he filed suit and a request for issuance of citation on May 17, 2004, a date within the statute of limitations.*fn97 Ocampo argues his counsel contacted the Bexar County Clerk's Office during the week following May 17 to determine when the citation would be available.*fn98 According to Ocampo's argument, his counsel was notified on May 24 that the citation was ready, and it was transmitted by certified mail on the same date.*fn99 Ocampo asserts LabCorp's registered agent was served with process on May 25, 2004.*fn100

  In reply, LabCorp notes Ocampo has failed to rebut the presumption of receipt created by the "mailbox rule," thus shifting to Ocampo the burden to demonstrate due diligence.*fn101 LabCorp argues Ocampo "has failed to present any competent, admissible evidence demonstrating his diligence in effectuating service."*fn102

  Section 21. 254, Texas Labor Code provides that "[w]ithin 60 days after the a notice of the right to file a civil action is received, the complainant may bring a civil action against the respondent."*fn103 Texas courts have held that § 21.254 requires both the filing of the lawsuit and service of process on defendant within the sixty day limitation period.*fn104 "If service of citation occurs outside the sixty-day period, but the date of filing was inside the 60-day limitations period, the date of service can relate back to the date of filing if the plaintiff exercised due diligence in effectuating service upon the defendant."*fn105 Due diligence is generally a fact issue, unless it is clear that a lack of diligence exists as a matter of law.*fn106

  Pursuant to Rule 21a, Texas Rules of Civil Procedure, a party is presumed to have received notice of service by mail three days after the document was deposited with the United States Postal Service.*fn107 The party for whom receipt of notice is presumed may produce evidence to the contrary.*fn108 Rule 21a provides, in part,
Whenever a party has the right or is required to do some act within a prescribed period after the service of notice or other paper upon him and the notice or paper is served by mail . . . three days shall be added to the prescribed period[.]*fn109
No Texas court has expressly ruled that Rule 21a is applicable to TWC notices of right to file civil action when the date received is uncertain.*fn110 Nevertheless, a district court in the Western District of Texas has applied the three-day presumption when determining whether a civil action was timely filed pursuant to § 21.254.*fn111

  Ocampo does not deny receiving the March 18, 2004 TWC notice of right to bring a civil action,*fn112 but he asserts he can not remember the exact date of receipt.*fn113 Assuming, like another court in this District, that Texas courts would find Rule 21a is applicable to determining when a TWC notice was received, Ocampo is presumed to have received the notice on Monday March 22, 2004. To bring a civil action within sixty days from the presumed date of receipt, Ocampo would have had to file his lawsuit and serve LabCorp with process on or before May 21, 2004. Ocampo filed his original petition in state court on May 17, 2004*fn114 and, based on the date stamp, filed his request for process at the same time.*fn115

  Ocampo contends service was accomplished on May 25, 2005,*fn116 but has not proffered competent summary judgment evidence to support his contention.*fn117 LabCorp has presented the affidavit of Beatrice Casarez, a CT Corporation System employee, showing that, as LabCorp's registered agent in the present case, it was served with process on May 27, 2005.*fn118 Regardless of whether service was effectuated on May 25 or May 27, 2004, service on LabCorp was outside the sixty-day limitations period established by § 21.254. In order for service on LabCorp to relate back to the May 17, 2004, when the original petition was filed, Ocampo must demonstrate due diligence in attempting to timely serve LabCorp. Ocampo argues that "counsel's office made contact with the Bexar County District Clerk's Office over the course" of the week after May 17, and "counsel was advised" on May 24, 2004, that the citation was ready.*fn119 Although Ocampo has proffered some evidence showing Esparza was contacted on May 24, 2004, to serve process on LabCorp,*fn120 Ocampo has offered no competent evidence showing his attempts between May 17 and May 24 to obtain the citation from the clerk's office.*fn121 Moreover, the Court notes the citation, attached as exhibit C2 to the notice of removal, reflects it was signed by Deputy Clerk Irma Garza on May 18, 2004.*fn122 Given that Ocampo is claiming service was accomplished on May 25, 2004, one day after Esparza was contacted to make service, it would appear that the May 18, 2004 citation could have been served within the sixty-day limitations period. Ocampo has not explained why the May 18 citation could not be served before May 25 or 27, 2004. Accordingly, Ocampo has failed to raise a genuine issue material fact about whether he exercised due diligence in serving LabCorp, and the date of service cannot relate back to the May 17, 2004 filing date. Because ...

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