United States District Court, S.D. Texas, Corpus Christi Division
GONZALES RAMOS, UNITED STATES DISTRICT JUDGE.
Cynthia Pena (Pena) filed this action against her former
employer, First State Bank of Odem (the Bank). Contrary to
the Bank's assertion that she resigned or abandoned her
job, Pena complains that she was terminated and that the
termination was discriminatory and retaliatory on the basis
of religion and disability. D.E. 1. She also claims that the
Bank failed to accommodate her disability. Id.
the Court is Defendant Bank's motion for summary
judgment. D.E. 18. The Bank seeks dismissal of all claims for
failure to demonstrate a prima facie case and failure to
raise a disputed issue of material fact on pretext. D.E. 18.
The Bank also asserts that the religious discrimination
claims are barred by limitations. Pena filed her response
objecting to the Bank's evidence and disagreeing with its
factual analysis. D.E. 21. The Bank filed a reply and a
subsequent motion for leave to file that reply in excess of
the page limits. D.E. 22, 23. The Court GRANTS the motion for
leave (D.E. 23) and considers the reply in its entirety. For
the reasons set out below, the Court GRANTS the motion for
summary judgment (D.E. 18) and DISMISSES this action.
judgment is proper if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
court must examine “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251-52. In making this
determination, the court must consider the record as a whole
by reviewing all pleadings, depositions, affidavits, and
admissions on file, and drawing all justifiable inferences in
favor of the party opposing the motion. Caboni v. Gen.
Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002).
court may not weigh the evidence or evaluate the credibility
of witnesses. Id. Furthermore, “affidavits
shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein.” Fed.R.Civ.P. 56(e); see
also Cormier v. Pennzoil Exploration & Prod. Co.,
969 F.2d 1559, 1561 (5th Cir. 1992) (per curiam) (refusing to
consider affidavits that relied on hearsay statements);
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d
547, 549 (5th Cir. 1987) (per curiam) (stating that courts
cannot consider hearsay evidence in affidavits and
moving party bears the initial burden of showing the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party
demonstrates an absence of evidence supporting the nonmoving
party's case, then the burden shifts to the nonmoving
party to come forward with specific facts showing that a
genuine issue for trial does exist. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). To sustain this burden, the nonmoving party cannot
rest on the mere allegations of the pleadings. Fed.R.Civ.P.
56(e); Anderson, 477 U.S. at 248. “[T]he
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248.
“After the nonmovant has been given an opportunity to
raise a genuine factual issue, if no reasonable juror could
find for the nonmovant, summary judgment will be
granted.” Caboni, 278 F.3d at 451.
plaintiff relies on circumstantial evidence to prove
discrimination or retaliation, the courts use the
burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-804 (1973). Under that
framework, the plaintiff must first establish a prima facie
case. If successful, the burden of production shifts to the
defendant to articulate a non-discriminatory or
non-retaliatory reason for the adverse employment action.
Id.; St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 510 (1993) (this is a burden of production, not
persuasion). If defendant articulates such a reason, then the
burden of proof returns to the plaintiff to raise a disputed
issue of material fact that the defendant's stated reason
is mere pretext for discrimination or retaliation.
E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d
606, 615 (5th Cir. 2009) (disability discrimination case);
LeMaire v. La. Dep't of Transp. & Dev., 480
F.3d 383, 388-89 (5th Cir. 2007) (retaliation case).
Bank initially hired Pena in the 1990s. She voluntarily left
the Bank's employ to work elsewhere and was re-hired in
2000. At that time, she started as a teller and, through
multiple promotions, became Branch Manager at the Bank's
Robstown branch. On April 14, 2017, Pena was not feeling
well. Her husband came to the bank, took her pulse, and
declared that she was having heart palpitations and needed
medical attention. Pena left with her husband and never
returned to work.
there are no medical records in evidence, Pena testified to a
nearly four-month medical odyssey, including the initial
emergency room visit on April 14, 2017, through a number of
doctors and alternative medicine practitioners concerned with
her heart, liver, colon, and anxiety. She claims to have been
tested at M.D. Anderson's cancer center and diagnosed
with a small tumor in her colon. Her doctor told her he was
“more than sure it was malignant.” Nonetheless,
further testing was “inconclusive.” D.E. 21, p.
29. She represents this inconsistent hearsay as a diagnosis
of unspecified cancer.
this time, she generally did not communicate with the Bank
unless its employees contacted her first. Her silence was
despite her knowledge that Bank policy required doctor's
notes for employees who were out sick for more than a day or
two. D.E. 18-1, pp. 8-9. After Pena had been absent three
weeks, James Spruce, the Bank's Vice President of
Operations, requested a doctor's excuse. D.E. 18-1, p. 9.
On May 11, 2017, Pena provided one that said only that Pena
was under the doctor's care and, “Allow her to be
absent from work for 2 weeks until medically cleared.”
D.E. 18-1, pp. 12, 66. Pena did not return to work in two
weeks and did not provide any additional doctor excuses or
proof of medical restrictions on work. Id.
Previously, Pena's family doctor had issued an excuse
dated May 2, 2017, stating that Pena could return to work
without restrictions on May 16. D.E. 18-1, p. 12. Pena did
not provide that excuse to the Bank or produce it with her
discovery responses. Id., p. 13; D.E. 21, p. 37.
24, 2017, Pena texted Craig Cavitt, the Bank's Senior
Vice President and Cashier, with questions about the status
of her job, insurance benefits, and her COBRA rights,
concerned that her job was in jeopardy because of her
absence. D.E. 18-1, pp. 13-15. She advised Cavitt on June 16,
2017, that she had a tumor and said, “thank u for all
the bank has done for me.” Id., pp. 63-64. She
also asked him to advise her of when her paid leave would
expire, which he did. Id. She admitted, “I
knew my position wasn't guaranteed if I was sick.”
D.E. 21, p. 29. On June 17, 2017, Pena texted Spruce the news
that she was diagnosed with colon cancer. D.E. 18-1, pp.
15-17. She thanked him for being a good boss and told him she
had enjoyed working at the bank. Id. She also wrote,
“maybe some day I will return & get the opportunity
to work again.” D.E. 18-1, pp. 61-62.
the Bank's cooperation in providing the necessary forms
and urging her to submit the claim right away, Pena filed a
claim for long term disability insurance on July 3, 2017, not
knowing when she would be well enough to work. D.E. 18-1, pp.
18-19, 29. She also applied for, and received, unemployment.
Id., p. 20; D.E. 21, p. 32. The Bank paid Pena
through July, based on her remaining sick leave and annual
leave benefits. D.E. 18-1, pp. 26-28.
August 3, 2017, the Bank advised Pena that they had to clean
out her office. The next day, a Friday, Pena went to the Bank
to clear out the desk herself, shredding notes about Bank
operations that she had kept for her personal use. At that
point, Pena had not previously presented herself as ready,
willing, and able to return to work. D.E. 21, p. 32. However,
she went to Cavitt's office that day to tell him she was
fine and ready to come back to work. On the following Monday,
she initiated contact with supervisors, claiming that she was
ready to return to work but did not yet have a doctor's
release. D.E. 18-1, pp. 52-53.
August 9, 2017, Pena had spoken with her former supervisor,
Corina Garcia, who had resigned in April 2016. D.E. 21, p.
62. Garcia suggested that the Bank officers discriminated
against Pena because of her Jehovah's Witness faith.
While this was a new idea to Pena, she immediately decided to
hire an attorney to make this claim. D.E. 21, p. 34. She
filed her EEOC Charge of Discrimination on November 10, 2017.
D.E. 18-1, pp. 70-75.
respect to religion, it is undisputed that the Bank re-hired
Pena in 2000, knowing that she was a Jehovah's Witness
and that it employs other adherents to that faith. It is
further undisputed that the Bank permitted Pena to take a
week off every year, with pay, to attend the Jehovah's
Witness annual convention. However, Pena has testified to a
number of instances related to supervisory employees taunting
her because Jehovah's Witnesses do not celebrate
particular, her supervisor, Beverly Moore, questioned whether
Pena, like other employees, could accept a full-size
poinsettia given one time in anticipation of the Christmas
holiday by a bank director. Pena did receive one and accepted
it as a kind gesture, not as a holiday celebration. Moore
deliberately excluded Pena from the count of employees to
receive a customer-supplied personal staff gift of a small
poinsettia. Pena did not receive that gift. Moore also teased
Pena about bonuses given in December, commonly referred to as
a Christmas bonus. Despite the commentary, Pena did receive
annual bonuses like the rest of the employees. All of these
religious complaints are associated with the tenure of
Beverly Moore, who retired in 2012.
Pena did not identify any other particular instance of
religious discrimination after Moore's retirement, Corina
Garcia, the Bank's former Vice President of Operations,
testified that another branch manager told her that Cavitt
and Chairman of the Board Buddy Wood, along with an
administrative assistant, were prejudiced against Pena
because of her religion and that Garcia should anticipate
obstacles to any effort she might make to further promote
Pena. Cavitt specifically objected to Pena getting the Fourth
of July week off every year for the Jehovah's Witness
convention and he wanted to ensure that if any other more
senior employee wanted to take that week off, that no
preference should be given to Pena. D.E. 21, p. 55. According
to Garcia, there was never a conflict between the vacation
schedules and Pena was able to take that week off.
objects to a number of statements in Spruce's affidavit
as “bare allegations of fact, conclusory facts or legal
conclusions” or “opinion offered as a fact in the
form of a conclusion.” D.E. 21, pp. 1-2. The
observation regarding what Pena failed to provide to the Bank
in terms of the duration or reason for her absence or date of
expected return is proper fact testimony. It is further
cumulative of Pena's own testimony regarding the
information she did and did not provide.
objection regarding the content of the doctor's excuse
that Pena provided is cumulative of the note, which is in
evidence and not subject to objection. Spruce's testimony
that he was aware that Pena came to the bank to clean out her
desk is cumulative of Pena's own testimony that, when she
found out the Bank was going to clean out her office, she
went to her office and removed and shredded notes about Bank
business that she had kept for her own personal use. It is
also admitted in Pena's response that she went to the
Bank to clean out her desk. D.E. 21, ¶¶ 36, 52.
Spruce's testimony that he was aware of this development
is within his personal knowledge and is appropriate evidence.
The objections to Spruce's affidavit are OVERRULED.
objects to Cavitt's statement that he contacted Pena
during her absence and let her know she could not remain
absent indefinitely as without time and date context.
Sufficient context is provided by “during her
absence.” Pena has not raised any issue in this case
that requires narrowing the time frame for this statement.
Cavitt's mention of the text message Pena sent to Spruce
is outside the definition of hearsay because it concerns a
statement of a party opponent. Fed.R.Evid. 801(d)(2)(A). It
is further cumulative of the actual printout of the text
message, which is in evidence and ...