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Pena v. First State Bank of Odem

United States District Court, S.D. Texas, Corpus Christi Division

September 3, 2019

CYNTHIA PENA, Plaintiff,



         Plaintiff 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.

         Before 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.


         A. Summary Judgment

         Summary 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).

         The 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 depositions).

         The 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.

         B. Discrimination/Retaliation

         When a 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).


         A. Facts

         The 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.

         While 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.

         Throughout 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.

         On May 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.

         With 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.

         On 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.

         By 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.

         With 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 holidays.

         In 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.

         While 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.

         B. Evidentiary Objections

         Spruce Affidavit.

         Pena 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.

         The 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.

         Cavitt Affidavit.

         Pena 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 ...

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