United States District Court, W.D. Texas, San Antonio Division
ORDER ON MOTION FOR SUMMARY JUDGMENT
RODRIGUEZ UNITED STATES DISTRICT JUDGE
date, the Court considered Defendants' Motion for Summary
Judgment (docket no. 18), Plaintiff's response (docket
no. 22), and Defendants' reply (docket no. 23). After
careful consideration, the Court GRANTS summary judgment.
case relates to Plaintiff Margarita Gomez's leave under
the Family and Medical Leave Act (“FMLA”) and her
termination as Human Resources Manager of Defendant Office
Ally, Inc., of which Defendant Brian O'Neill is owner and
CEO. Gomez, in her Original Petition filed on September 14,
2018, brings claims for disability discrimination and
retaliation under the Texas Commission on Human Rights Act
(“TCHRA”) and for interference and retaliation
under the FMLA. Docket no. 1-1. On October 18, Defendants
removed to this Court. Docket no. 1.
Ally hired Gomez as HR manager of its San Antonio office in
August 2014. Gomez Dep., 42:7-12. O'Neill, who lives in
Nevada, visits the San Antonio office rarely. O'Neill
Dep., 22:19-20. In 2016, Gomez told O'Neill that she
planned to move her mother, who has dementia, from El Paso to
San Antonio, so that Gomez could provide her care.
Id. at 13:7-14:4. O'Neill objected to this plan
because it would be expensive for Gomez and because he
assumed it would affect her work schedule. Id.
Gomez's mother moved in, Gomez sometimes called or
messaged O'Neill to advise him that she needed to take
her mother to appointments or otherwise miss portions of work
days to care for her mother. Id. at 20:16-21:7.
O'Neill states he did not reprimand Gomez because he
understood she was making up her missed time. Id. In
November 2017, O'Neill states he received complaints from
Carolyn Bond, the new San Antonio site manager, and other
employees that Gomez was often absent or tardy. Id.
at 26:19-27:8. O'Neill states that “she needed to
notify me if she's going to be coming in late”
because “that was what our deal was.”
Id. at 88:8-15. O'Neill states he also received
complaints from other employees and managers, including COO
Gloria Chung, that Gomez's work performance was
declining. Id. at 37:8-22.
February 7, 2018, O'Neill gave Gomez a Performance
Improvement Plan (“PIP”). Docket no. 18-3. The
PIP identifies five gaps in performance related to updating
the employee handbook, which had not been updated since 2015;
providing mangers with current interviewing and hiring
guidelines; ensuring all offices have up-to-date posters on
the relevant laws of that state; improving the work
relationship between the Washington and San Antonio offices;
and ensuring all new hires are verified. Id.
O'Neill states he was prompted to issue the PIP because
the complaints about Gomez meant “we had to deal with
this now. Possibly losing a contract, a big contract,
that's a big deal.” O'Neill Dep., 42:5-8. As
O'Neill acknowledges, he did not memorialize the alleged
complaints against Gomez in the PIP, mention that a contract
was threatened, and did not note dissatisfaction as to
Gomez's work attendance. Id. at 45.
February 12, Gomez arrived late to work without informing
O'Neill. Gomez Dep. 108:7-12. She told O'Neill she
was late because she was caring for her mother, and
O'Neill suggested she take FMLA leave. Id. at
117:24-118:4. O'Neill states he suggested this because
her performance was going down, bad. And so if your job
performance is going down-the reason for FMLA is to go and
take care of your situation at home, either set up some form
of “we can get this squared away so that we can get mom
cared for, either in a nursing home or move some people
in” or whatever, to care for the situation so it's
no longer a problem, so it doesn't affect your job
performance. Her job performance was going down fast.
O'Neill Dep., 57:10-24.
states that Gomez's job performance began to slip after
Gomez's mother moved in. Id. at 58:14.
O'Neill states that Gomez's attitude changed three
months before he issued the PIP; he did not memorialize these
observations, though he states “I should have written
her up many times over.” Id. at 60, 63.
states she had reservations about taking FMLA leave because,
she states, O'Neill disapproved of those employees who
took FMLA leave. Gomez Dep., 34-37. O'Neill, on the other
hand, states “[t]he only thing I frown upon is when . .
. we have people who know how to work the system. They get
two write-ups, and then they file FMLA, intermittent FMLA, so
that no longer can they be written up for not showing up on
time. And then they're protected. . . . That, I frown on.
But FMLA, absolutely not.” O'Neill Dep., 70. The
employees who “game the system, ” O'Neill
states, are “about to go out, and then they file their
FMLA claim. We heard nothing about their sick child before
that.” Id. at 71. O'Neill states he had a
suspicion that Gomez was similarly gaming the system.
Id. at 72.
February 12, O'Neill went to lunch with Ahmed Mahmoud, an
IT specialist, whose declaration states he heard O'Neill
say: “[Gomez] isn't pulling her weight and just
isn't doing her job;” “These problems all
started when she moved her mother in;” and
“[Gomez] moved her mother into her house so she could
get her money and get paid by the government.” Docket
February 16, Gomez informed O'Neill of a situation with
her mother and that she would look into her “options
under FMLA.” O'Neill Dep., 81. On February 17, at a
charity event, Mahmoud states that O'Neill told him Gomez
quit her job. Docket no. 22-4. Mahmoud states that, when he
tried to verify whether Gomez's computer and
authorizations had changed, he noticed that her access to the
server, email systems, and voicemail had been disabled, which
he states was unusual, as he would normally be contacted to
disable remote electronic access. Id.
February 18, Gomez requested FMLA paperwork. She was on
approved FMLA leave from February 19 until May 16, when she
returned to work.
March 15, while Gomez was on leave, Chung emailed Gomez and
requested that she send her company laptop back to Office
Ally. O'Neill Dep., 113. Gomez replied that she would
“ship it out the earliest I can.” Docket no. 18-1
at 104. Chung then told O'Neill that it
“[d]oesn't look like she plans to return it”
and “my guess is that she wants to keep it so she has a
computer to use for personal reasons.” Id. at
103. Chung stated that “based on her response I think
she's counting on us coming back and asking for it sooner
so that she can say we were overly pressuring/harassing her
or something along those lines.” Id.
O'Neill states he felt he needed to “protect
himself” by getting the laptop back. O'Neill Dep.,
her leave, Office Ally retained Xenium, an external human
resources company, to perform human resources functions in
Gomez's absence. When Gomez returned, Xenium had provided
Office Ally a proposal for permanent services, which Office
Ally was considering. On May 16, the date Gomez returned, she
learned that Xenium would perform many HR functions, Campbell
would be responsible for FMLA functions, and Carla Duran
would be responsible for Xenium relationships. Without her
former responsibilities, Gomez was tasked, upon returning,
with preparing a proposal “for how she envisions her
role going forward with Xenium.” Docket no. 18-1 at
May 16, O'Neill states he was approached by Mary
Pieczkiewicz, who told O'Neill that she had heard Gomez
was returning. O'Neill Dep., 147:10-148:15; Pieczkiewicz
Decl. She told O'Neill of a time when Gomez answered her
office phone on speaker, even with other people in the room.
Id. O'Neill states that the call Gomez received
was about an employee issue, and after hanging up Gomez
called the employee a “stupid little girl.”
O'Neill Dep., 148. Pieczkiewicz notified O'Neill that
other managers also heard these conversations and had similar
complaints. Id. O'Neill reached out to these
managers, and in declarations provided by Defendants,
managers Valerie Allen, Christopher Ruiz, and Carolyn Bond
report hearing comments from Gomez, including: Gomez
referring to the Washington office as “us against them,
” Gomez telling Ruiz he did not want to be one of
“those people who rely on a therapist for everything,
” and Gomez telling Bond that two managers had
“white privilege” and that O'Neill was gay.
Gomez denies most of these accusations and claims the
managers invented these statements to win favor with
O'Neill. Docket no. 18 at 7.
testifies that these managers were prompted to come
forward-despite the fact that their complaints stemmed from
before Gomez's leave-because they learned she was
returning to work. O'Neill Dep., 149. He states that he
“would have terminated her immediately” had he
known of these complaints. Id. “She would have
never made it to FMLA. If I knew these things when these
managers, that-she wouldn't have been here. We
wouldn't be here today.” Id. He testifies
that he did not learn of these complaints because, given
“the relationship [Gomez] and I had, they were
afraid” to report. Id. at 149-150. These
employees' complaints are documented in detail in emails
sent when O'Neill began to investigate Gomez's
conduct. Docket no. 22-2 at 113-18.
May 16, Gomez requested a “flex schedule, ” which
Chung denied, after which Gomez requested a schedule running
from 7:45 a.m. to 4:45 p.m. Docket no. 22-2 at 106. Gomez was
upset that her flex schedule request was denied because other
employees were granted flex schedules. Id. at 110.
23, O'Neill offered a separation agreement, which Gomez
declined. O'Neill them prepared a termination memo in
which he stated that “Office Ally decided to eliminate
[Gomez's] position and to retain Xenium XR for all human
resource needs. Office Ally will refer to the termination ...