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Gomez v. Office Ally, Inc.

United States District Court, W.D. Texas, San Antonio Division

July 1, 2019




         On this 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.


         This 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.

         Office 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.

         After 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.

         On 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.

         On 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.

         O'Neill 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.

         Gomez 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.

         Also on 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 no. 22-4.

         On 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.

         On February 18, Gomez requested FMLA paperwork. She was on approved FMLA leave from February 19 until May 16, when she returned to work.

         On 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., 111.

         During 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 108.

         Also on 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.

         O'Neill 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.

         Also on 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.

         On May 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 ...

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