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Sanders v. Rodriguez

United States District Court, S.D. Texas, McAllen Division

February 2, 2018

HAVIDAN RODRIGUEZ, et al, Defendants.


          Micaela Alvarez United States District Judge

         The Court now considers Havidán Rodríguez (“Rodríguez”), The University of Texas-Pan American (“UTPA”), and The University of Texas Rio Grande Valley's (“UTRGV”) (collectively “Defendants”) motion for summary judgment, [1] as well as Karen Sanders' (“Plaintiff”) response.[2] After duly considering the record and relevant authorities, the Court GRANTS Defendants' motion for summary judgment.

         I. Background

         A. Factual History

         Plaintiff began working for UTPA as a Professor of Art in 2005 and eventually received tenure.[3] On December 11, 2012, Plaintiff requested leave under the Family Medical Leave Act (“FMLA”) during spring 2013 to tend to her ailing father in Detroit, Michigan.[4] Plaintiff's request was granted for a total of (and the maximum available) twelve weeks of FMLA-based leave, from January 14, 2013 to April 9, 2013.[5] Moreover, Plaintiff “was approved sick leave for the entire [s]pring 2013 academic semester, ”[6] such that she was not required to perform any job duties during spring 2013, but was nevertheless paid for that period of time.[7]

         In May 2013, Plaintiff notified UTPA that her father passed away in April 2013, and also that she was undergoing treatment for breast cancer in Detroit.[8] In her letter, Plaintiff specially requested “permission to teach online classes full time for the [f]all 2013 semester, ”[9] noting that she had “successfully completed the BBL07-SP13 Teaching Online Program: Blackboard Learn with Ram DeLaRosa this past semester.”[10] Ultimately, Plaintiff “returned to work, in September 2013, for the [f]all 2013 academic semester to the same position she was in when she took FMLA leave. She retained the same title, pay, and work responsibilities-with the only difference being she taught that semester online as per her request.”[11]

         In fall 2013, UTPA received complaints from Plaintiff's online students. Dahlia Guerra (“Guerra”), the Dean of UTPA's College of Arts and Humanities, explained the situation thus:

Throughout the [f]all 2013 semester, we had numerous complaints, by email and in person, from many students who expressed their dissatisfaction with [Plaintiff's] online courses. I met with a large group of students, in November, who expressed dismay that at one point they had not heard from her for over [three] to [four] weeks. They complained that they would send her emails and that she did not respond. They also stated that she posted assignments with little instruction about how to complete them, what learning outcomes were expected, or how the students' assignments were to be graded. I saw first-hand that students were frustrated and confused about how to successfully complete [Plaintiff's] courses.
The [technology staff] expressed concern on several occasions that the course modules were not properly entered in Blackboard format; the assignments posted lacked direction as to where to submit files; and that it was hard to say how the instructor was communicating with the students because they could not see instructor presence in the course. The Chair of Art was also very concerned and spent many hours meeting with the students and providing solutions for extra instruction by other faculty.[12]

         When confronted about the complaints, Plaintiff explained in an email that “admittedly, I have not met my own teaching standards for both courses . . . . If this means that I will have to issue incompletes and follow up with students next semester, I would be more than happy to do so.”[13]

         Plaintiff thereafter physically returned to UTPA in spring 2014 to teach in-person.[14]UTPA's Handbook of Operating Procedure (“HOP”) 4.13.1 provided: “[A]ny employee who engages in outside employment . . . shall file a report, the Outside Employment Application, with the appropriate Vice President annually by September 30.”[15] Furthermore: “No full-time employee of the University . . . shall be employed in any outside work or activity . . . until a description of the nature and extent of the employment has been filed with and approved at the Vice President level.”[16]

         Nevertheless, in February 2014, Plaintiff disclosed that she had been employed in 2013 as a “visiting artist” at Marygrove College in Detroit.[17] She did not file an Outside Employment Application[18] or otherwise receive formal approval for employment outside of UTPA.[19]Specifically, Plaintiff taught “Art 276” at Marygrove College during both the spring and fall semesters of 2013, requiring approximately 5.5 hours per week of dedication, and Plaintiff was paid a total of $5, 179.20.[20] Thus, Plaintiff ostensibly violated UTPA policy by working for Marygrove College without obtaining permission in advance from UTPA.

         In June 2014, Guerra expressed her concerns to UTPA leadership about Plaintiff's unauthorized outside employment throughout 2013 and Plaintiff's poor teaching in fall 2013.[21]

         Guerra concluded: “[S]tudents at UTPA did not receive adequate/proper instruction in [Plaintiff's] classes. [Plaintiff's] responsibilities to UTPA and our students were neglected and were compromised by her commitment to another institution.”[22] Plaintiff took advantage of subsequent opportunities to explain herself to UTPA leadership, [23] but ultimately Rodríguez- UTPA's Provost and Vice President of Academic Affairs-issued a disciplinary letter to Plaintiff on July 21, 2014, stating:

In violation of HOP 4.13.1, you did not request nor were you authorized to engage in this outside employment [at Marygrove College].
* * *
Furthermore, both the Department Chair and the Dean had to resolve significant issues and concerns with students in your online courses during the [f]all of 2013, including the apparent lack of communication and proper online instruction for your students while you were teaching at Marygrove College and serving as a Visiting Artist.
Based on your June 30 letter and on the extenuating circumstances you presented, the following disciplinary actions will be imposed:
1) Your faculty salary will be reduced by $508.54 per month for 12 months. This sum will be deducted from your monthly paycheck, beginning September 1, 2014, resulting in a monetary sanction equal to roughly 10% of your current annual salary, or $6, 102.50.
2) You will not be allowed to teach online courses for a period of three (3) years.
3) After this three year period, you will not be allowed to teach online courses until you are certified by COLLT. Also, any proposed online teaching must be approved by the Department Chair, Dean, and Provost.[24]

         UTPA thereafter dissolved by legislative decree on August 31, 2015, thus Plaintiff's employment at UTPA ended.[25] Plaintiff applied to the newly-created UTRGV during its “Phase I” hiring cycle, but was rejected on October 6, 2014 due to UTRGV's hiring criteria 4.1c-“no disciplinary action for the past seven years.”[26] Plaintiff then applied to UTRGV during its “Phase II” hiring cycle, but the job posting she applied for “was withdrawn and no one was hired for the position.”[27]

         B. Procedural History

         Plaintiff sued Rodríguez, Guy Bailey (“Bailey”), UTPA, and UTRGV in state court on October 6, 2016, [28] alleging violations of her substantive and procedural due process rights[29] as well as her FMLA rights, [30] and requesting declaratory and equitable relief.[31] Defendants subsequently removed the case, [32] and Judge Randy Crane ultimately recused himself.[33]Defendants thereafter filed a motion to dismiss, [34] which this Court granted in most respects.[35]Plaintiff was granted leave to amend her FMLA claim except insofar as it was aimed at UTPA and UTRGV and arose from self-care leave-this theory was clearly barred by UTPA and UTRGV's Eleventh Amendment immunity.[36]

         Plaintiff filed her first amended complaint-this time not naming Bailey as a defendant- containing only her FMLA claim.[37] Plaintiff specifically claimed violations of § 2615(a)(1)-(2), citing supporting regulations.[38] In the amended complaint, Plaintiff alleges that “[w]hen she returned from FMLA leave for the Fall 2013 semester, [Plaintiff] was not placed in the same or an equivalent position and her pay was eventually reduced. This is a violation of Section 2614(a) of the FMLA.”[39] Plaintiff also alleged that a “disciplinary letter was issued in retaliation for [Plaintiff] taking FMLA leave, ”[40] that this was a pretext for her use of FMLA leave, [41] and that the discipline was the sole basis for denial of employment at UTRGV.

         Independently, Plaintiff filed another case (“Sanders II”) in state court against UTPA and UTRGV in 2017, alleging Title VII violations built upon the same facts alleged in the instant case.[42] Thereafter, Sanders II was removed[43] and assigned to Judge Ricardo Hinojosa, who recused himself.[44] The Sanders II Defendants filed a dismissal motion, which this Court granted on the basis that Plaintiff's Title VII claims were time-barred.[45]

         Defendants in the present case filed the instant motion for summary judgment on December 15, 2017, [46] and Plaintiff responded twenty-one days later with a request for extra time to respond.[47] The Court granted the extension, [48] and Plaintiff timely responded within the extended deadline, [49] rendering the instant motion ripe for review. The Court now turns to its analysis.

         II. Legal Standard

         Under Federal Rule of Civil Procedure (“Rule”) 56, summary judgment is proper when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[50] “A fact is ‘material' if its resolution could affect the outcome of the action, ”[51]while a “genuine” dispute is present “only if a reasonable jury could return a verdict for the non-movant.”[52] As a result, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”[53]

         The movant bears the initial burden of showing the absence of a genuine issue of material fact, [54] but is freed from this initial burden on matters for which the non-movant would bear the burden of proof at trial; in that event, the movant's burden is reduced to merely pointing to the absence of evidence.[55] The non-movant must then demonstrate the existence of a genuine issue of material fact.[56] This demonstration must specifically indicate facts and their significance, [57]and cannot consist solely of “[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation[.]”[58]

         In conducting its analysis, the Court may consider evidence from the entire record, viewing that evidence in the light most favorable to the non-movant.[59] Rather than combing through the record on its own, however, the Court looks to the motion for summary judgment and response to present the evidence for consideration.[60] Parties may cite to any part of the record, or bring evidence in the motion and response.[61] By either method, parties need not proffer evidence in a form admissible at trial, [62] but must proffer evidence substantively admissible at trial.[63]

         III. Discussion

         Defendants contend that summary judgment in their favor is warranted for three reasons.First, they argue Plaintiff's FMLA claims are barred by the applicable statute of limitations.[64]Second, Defendants contend that Plaintiff's FMLA claims fail on the merits.[65] And third, Rodríguez in particular argues that he is entitled to qualified immunity in his personal capacity.[66] The Court addresses each argument in turn, and ultimately agrees that summary judgment in Defendants' favor is warranted.

         A. Plaintiff's claims are largely barred by the applicable statute of limitations

         The FMLA has a two-year statute of limitations, unless the alleged violation was willful, in which case, it is three years.[67] To establish a willful violation of the FMLA, “a plaintiff must show that his employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute.”[68] A negligent violation of the FMLA is not a willful violation.[69]

         Here, Plaintiff has supplied no meaningful facts that Defendants engaged in a willful violation of the FMLA, or that they acted with reckless disregard for the same. Plaintiff simply asserts that Rodríguez approved her FMLA leave, and that after Plaintiff took leave, Rodríguez disciplined her.[70] Plaintiff proceeds under two assumptions: (1) temporal proximity is sufficient as a matter of law; and (2) the FMLA protects employees from discipline even if they committed misconduct while on FMLA leave. Neither is correct.

         While temporal proximity may in some cases be sufficient to establish a prima facie case, such cases “uniformly hold that the temporal proximity must be very close.”[71] Here, Plaintiff completed her FMLA leave on April 1, 2013 yet she was not disciplined until July 21, 2014, over a year later. As to the second assumption, the FMLA does not offer blanket protection from adverse employment actions; it protects for use of, or in retaliation for use of FMLA. Courts have specifically recognized that the FMLA “does not shield an employee from dismissal merely because the alleged misconduct occurred while on leave.”[72] Thus, the fact that Rodríguez knew Plaintiff had used FMLA and that the discipline pertained to Plaintiff's conduct while on FMLA is not evidence of willfulness. Accordingly, the applicable limitations period is two years, and because the present case was filed on October 6, 2016, Plaintiff's FMLA claims can only be supported by events taking place on or after October 6, 2014.

         In her response to the instant motion, Plaintiff notes ten events which took place on or after October 6, 2014 that supposedly form the basis of her FMLA claims: ten paychecks she received from November 2014 to August 2015 which were each reduced by $508.54 as a result of the $6, 102.50 salary reduction penalty earlier imposed by Rodríguez on July 21, 2014.[73]However, Plaintiff's pay was not reduced progressively from November 2014 to August 2015. It was reduced all at once on July 21, 2014. It is simply because of the July 21, 2014 twelve-month salary reduction that Plaintiff's November 2014 to August 2015 paychecks were smaller.[74]

         Even putting this factual distinction aside, limitations periods in discrimination cases- closely related to the nature of the present case-focus “upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become most painful.”[75] Here, the supposedly discriminatory/retaliatory act was Rodríguez's decision-on July 21, 2014-to reduce Plaintiff's salary by $6, 102.50 assessed over the court of one year. The fact this allegedly retaliatory decision became most painful from November 2014 to August 2015 is irrelevant. Thus, because Rodríguez's July 21, 2014 decision took place about three months outside the applicable two-years limitations period, neither it nor the subsequently-reduced paychecks can properly form the basis of Plaintiff's FMLA claims.

         The only remaining potential basis for Plaintiff's FMLA claims that occurred within the two-year limitation period is UTRGV's October 6, 2014 rejection of Plaintiff's Phase I application.[76] Plaintiff contends (in conclusory fashion) that this was a form of retaliation by UTRGV for Plaintiff taking FMLA leave in spring 2013.[77] Insofar as this is Plaintiff's FMLA theory, it is not barred by the applicable statute of limitations.

         In sum, with the exception of UTRGV's rejection of Plaintiff's Phase I application, Defendants did not commit any acts supporting Plaintiff's FMLA claims within the applicable two-year statute of limitations-i.e., after October 6, 2014. Thus, all of Plaintiff's FLMA claims must be dismissed except insofar as they rests upon UTRGV's rejection of Plaintiff's Phase I application.

         B. Plaintiff's FMLA claims fail on the merits

         Even if Plaintiff's FMLA claims were not largely barred by the applicable statute of limitations, they fail on the merits, thus forming an independent basis for granting summary judgment in Defendants' favor. Rather than only addressing UTRGV's rejection of Plaintiff's Phase I application-the only fact within the limitations period that could support Plaintiff's FMLA retaliation claim-the Court proceeds to analyze the parties' FMLA contentions in their entirety.

         The FMLA “was enacted to permit employees to take reasonable leave for medical reasons, ”[78] either for themselves, or to care for close family members. To this end, the FMLA contains two distinct sets of provisions. The first “are prescriptive: they create a series of substantive rights, namely, the right to take up to twelve weeks of unpaid leave under certain circumstances.”[79] Moreover, “[a]fter a qualifying absence, the employer must restore the employee to the same position previously held by the employee before taking leave under the FMLA or a comparable position, with equivalent pay, benefits, and working conditions.”[80] These rights “comprise the prescriptive or substantive FMLA rights; claims for violations of these rights invoke entitlement or interference theories and are brought under § 2615(a)(1).”[81]

         The second set of provisions are proscriptive in nature, and “include an employee's right not to be discriminated or retaliated against for having exercised the right to take FMLA leave. Claims for violations of these rights are brought under § 2615(a)(2), ”[82] and “create a cause of action analogous to the actions for discrimination and for retaliation that are found in Title VII and the other discrimination statutes.”[83] Plaintiff specifically alleges violations of §§ 2615(a)(1) & (a)(2).[84] Both fail.

         i. Section 2615(a)(1)-interference with FMLA leave

         Section 2615(a)(1) provides: “It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”[85] This claim has five essential elements within the Fifth Circuit:

(1) The claimant is an eligible employee,
(2) The employer is subject to the FMLA's requirements,
(3) The claimant is entitled to leave,
(4) The claimant gave proper notice of her intention to take FMLA leave, and
(5) The employer denied the claimant the benefits to which she was entitled under the FMLA.[86]

         Here, there is no evidence supporting the fifth element-that Plaintiff was denied FMLA benefits to which she was entitled. Rather, UTPA worked with Plaintiff to ensure she received all the FMLA leave she was entitled to, cognizant that Plaintiff had important personal and family health issues to attend to.[87] Plaintiff's deposition reveals the following exchange:

Q. They approved your FMLA leave, correct?
A. They did.
Q. They never denied your FMLA life?
A. No, they did not.
Q. They didn't require you to come to work while you were on FMLA leave?
A. No.
Q. They didn't require you to live in Hidalgo County while you were on FMLA leave?
A. No.
Q. You got paid during the entire time you were on FMLA leave?
A. Yes.[88]

         Indeed, Plaintiff's immediate supervisor, Suzan Fitzsimmons, approved Plaintiff's FMLA leave request within one week of when it was made.[89] Plaintiff thereafter received an official letter from UTPA's human resources department recognizing the FMLA approval.[90] This letter not only clarified how Plaintiff could use her FMLA leave (i.e., all at once or intermittently), [91] but also explained how it worked in conjunction with her sick leave, and what Plaintiff could do in the event her FMLA and sick leave ran out.[92] Finally, the evidence suggests UTPA did not contact Plaintiff during her FMLA leave.[93] Thus, UTPA did not actually interfere with Plaintiff's FMLA leave.

         The Fifth Circuit has also held that a § 2615(a)(1) interference-based claim can lie if the employer fails “to restore an employee to the same or equivalent position”[94] upon return from their FMLA leave. According to supporting regulations,

[a]n equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority.[95]

         Here, Plaintiff was restored in fall 2013 to the same position with the same title, pay, and job duties.[96] The only difference is that Plaintiff taught online courses for UTPA, rather than in-person courses. Guerra attests that “the substantive teaching duties, skills, and responsibilities [were] the same . . . .”[97] However, Plaintiff contends that she “was put in an online teaching position without adequate training or equipment.”[98]

         The Court agrees with Defendants that Plaintiff was returned to an equivalent position in fall 2013. Because Plaintiff received the same position, pay, and job duties, the only meaningful difference was that she taught online courses rather than in-person courses. Although Plaintiff worked from Detroit rather than from Edinburg, Texas during fall 2013, this geographical difference was the result of Plaintiff's choice, not UTPA's command. UTPA simply permitted Plaintiff to teach online courses, which by nature can be taught from any place with internet connection. Moreover, the relevant underlying regulations aim to restore FMLA beneficiaries to locations “that [do] not involve a significant increase in commuting time or distance.”[99] Here, Plaintiff was living in Detroit, Michigan during fall 2013. Thus, permitting her to work online (i.e., from Detroit, Michigan rather than Edinburg, Texas) during the fall 2013 semester significantly decreased Plaintiff's commuting time and distance. Thus, Plaintiff's ability to teach online courses in fall 2013 only increased Plaintiff's geographical freedom.

         More importantly, Plaintiff was not forced to teach online classes from Detroit, Michigan against her wishes. Rather, Plaintiff affirmatively and specifically requested to teach online classes at UTPA in fall 2013 so she could remain in Detroit to be with her family and receive ongoing medical treatment.[100] This is important because the relevant underlying regulations interpreting the meaning of “equivalent position” with regard to working conditions provide:

[The] FMLA does not prohibit an employer from accommodating an employee's request to be restored to a different shift, schedule, or position which better suits the employee's personal needs on return from leave, or to offer a promotion to a better position. However, an employee cannot be induced by the employer to accept a different position against the employee's wishes.[101]

         Thus, an employer can accommodate an employee's request for different working conditions, but cannot force significantly different working conditions upon a non-consenting employee upon return from their FMLA leave. As noted, Plaintiff not only consented to teach online classes, she specifically requested it, writing the following request to Guerra:

My father passed away this past Sunday, April 28, 2013 as I was here receiving treatment for breast cancer in Detroit. My family and I are this week making arrangements for my father's service and I am grateful that I was here by my parent[']s side.
In accordance with our conversation at the end of last semester regarding my plans for Family and Medical Leave, I am requesting permission to teach online classes full time for the [f]all 2013 semester. I successfully completed the BBL07-SP13 Teaching Online Program: Blackboard Learn with Ram DeLaRosa this past semester.[102]

         There is simply no evidence that Plaintiff was “induced, ” as she alleges, to teach online classes.For these reasons, Plaintiff was returned to an equivalent position teaching online classes at UTPA in fall 2013.

         Plaintiff contends that she was not properly equipped or trained to teach her online classes:

The laptop provided by UTPA could not handle the large digital files submitted by the students. I had to purchase an external drive at my own expense to handle the files. It soon crashed and I had to take the drive to Best Buy to retrieve the information. I was not trained in studio by UTPA which was critical in order for me to do my job.[103]

         However, regardless of whether Plaintiff was properly equipped and trained, she consented to the technological and administrative differences of online teaching by specifically requesting it.Moreover, Plaintiff's request came with the assurance that she was properly trained to teach online classes: “I successfully completed the BBL07-SP13 Teaching Online Program:Blackboard Learn with Ram DeLaRosa this past semester.”[104] Plaintiff does not cite evidence suggesting Guerra had any reason to think otherwise. Thus, Plaintiff's contention that she was not properly equipped and trained is unavailing.

         Plaintiff also attests in a single sentence of her affidavit that “a different set of skills was necessary” to teach online.[105] This statement is conclusory, self-serving, and thus not competent summary judgment evidence.[106] However, even if true, Plaintiff requested to teach online, assuring UTPA that she was qualified.

         Even if Plaintiff was not restored to an equivalent position at UTPA in fall 2013, her § 2615(a)(1) interference claim could not be sustained on that basis. The Fifth Circuit has held that the right to be restored to an equivalent position expires upon completion of the twelve-week FMLA period itself.[107] Here, Plaintiff's twelve-week FMLA leave began on January 14, 2013 and ended on April 9, 2013.[108] Because the spring semester was not over by April 9, 2013, Plaintiff had to use sick leave to cover April 10, 2013 to May 31, 2013.[109] Plaintiff did not return to work for UTPA upon completion of her FMLA leave-April 9, 2013. Instead, she returned at the beginning of the fall 2013 semester.[110] Thus, Plaintiff was not entitled under the FMLA to restoration of an equivalent position at UTPA in the first instance.

         In sum, Defendants did not actually interfere with Plaintiff's FMLA leave, and UTPA was not obligated under the FMLA to restore Plaintiff to an equivalent position, but did so anyway. Thus, Defendants did not violate § 2615(a)(1).

         ii. Section 2615(a)(2)-retaliation for taking FMLA leave

         Plaintiff also specifically pleads that Defendants violated § 2615(a)(2), which provides: “It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.”[111] When, such as here, there is no direct evidence of retaliation, FMLA retaliation claims in the Fifth Circuit are analyzed using the McDonnell Douglas burden-shifting framework.[112] Under this framework, the claimant must first establish a prima facie claim of retaliation, which consists of the following elements:

(1) The claimant was protected under the FMLA,
(2) The claimant suffered an adverse employment decision, and either
(3) The claimant was treated less favorably than a similarly situated employee or the adverse decision was made because the ...

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