United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
BRIONES, SENIOR UNITED STATES DISTRICT JUDGE
day, the Court considered Plaintiff Efraim Flores's
("Flores") "Second Motion for Partial Summary
Judgment" ("Flores's Motion") filed in the
above-captioned case on June 14, 2019. ECF No. 105. Defendant
AT&T Corp. ("AT&T") filed a
Response("AT&T's Response") on
July 3, 2019. ECF No. 126. On July 10, 2019, Flores filed his
Reply ("Flores's Reply"). ECF No. 130-1.
Court also considered AT&T's "Amended Motion for
Summary Judgment" ("AT&T's Motion")
filed in the above-captioned case on June 17, 2019. ECF No.
108. Flores filed a Response ("Flores's
Response") on June 25, 2019. ECF No. 114-1. On June 28,
2019, AT&T filed its Reply ("AT&T's
Reply"). ECF No. 116.
due consideration, the Court is of the opinion that
AT&T's Motion and Flores's Motion shall both be
denied for the reasons that follow.
case stems from Flores's invocation of rights under the
Family and Medical Leave Act ("the FMLA"), 29
U.S.C. § 2601 et seq. Flores was employed as an
Account Representative by AT&T at a call center in El
Paso, Texas. AT&T's Mot. 2, ECF No. 108; Pl's
Original Pet. and Req. for Disclosure 2, ECF No. 1 -2
("Flores's Original Pet."). Flores reported to
Sales Coach Juan "Tony" Alvarez
("Alvarez") and Center Sales Manager Fernando
Jacquez ("Jacquez"). AT&T's Mot. 2-3, ECF
No. 108. While employed with AT&T, Flores was granted
leave by AT&T under the FMLA for hypertension in 2015 and
2016. AT&T's Mot. 3, ECF No. 108. Between September
15, 2015, and October 2, 2015, Flores was also granted leave
by AT&T under the FMLA for back abscesses. AT&T's
Mot. 3, ECF No. 108; Flores's Original Pet. 2, ECF No.
was terminated by AT&T on April 21, 2016. AT&T's
Mot. 15, ECF No. 108; Flores's Original Pet. 3, ECF No. 1
-2. Flores alleges that AT&T "[chose] not to modify
its performance policies to account for FMLA protected
absences" and then "terminat[ed] his employment
based on these unadjusted performance
standards." Flores's Mot. 10-11, 14, ECF No. 105
(emphasis added). Flores asserts that evaluating him with
unadjusted performance targets is an FMLA violation.
Id. at 3-7. AT&T alleges that Flores was
terminated after two warnings for missing performance targets
and then "fail[ing] to meet 100% of his
adjusted performance objectives/targets in March
2016." AT&T's Mot. 14-15, ECF No. 108 (emphasis
August 9, 2017, Flores filed his Original Petition in the
120th Judicial Court of El Paso County, Texas. Flores's
Original Pet., ECF No. 1-2. Therein, Flores claims that
AT&T violated the FMLA. Id. On October 19, 2017,
AT&T filed a Notice of Removal, as Flores's cause of
action presents a federal question. Def.'s Notice of
Removal 2, ECF No. 1. The instant Motions followed.
Flores's Factual Allegations
alleges that AT&T terminated him after he failed to meet
performance targets that were not adjusted to account for the
FMLA leave he took. Flores's Mot. 10-11, 14, ECF No. 105.
Flores alleges that "[t]he only documents showing the
targets [ ] AT&T sets for [ ] Flores are the daily,
weekly, and monthly reports,  and they do not reflect any
adjustments [to account for FMLA protected leave]."
Pl's Resp. to Def. AT&T Corp.'s Obj. to Pl's
Summ. J. Evid. 5, ECF No. 131 (footnote added). In support of
this claim, Flores points to the deposition of Lisa Robinson
("Robinson"), an AT&T Employee Relations
Manager, who oversaw the human resources managers at
Flores's call center. Flores's Resp. 12-13, ECF No.
114-1. In the deposition, Robinson affirmed that "all of
those employees under [ ] Jacquez, who are under the same
contract [as Flores], were held to the same performance
standards, ... whether or not they had taken FMLA
leave." Robinson Dep. 18:23-19:5, ECF No. 114-3.
also claims that AT&T "penalizes employees for
taking medical leave when it refuses to adjust employees'
performance targets and goals to take into account
employees' absences which are protected under the
FMLA." Flores's Mot. 10-11, 14, ECF No. 105 (citing
Aff. of Graciela Varela, ECF No. 105-3; Aff. of Luis Velez,
ECF No. 105-5). In support of this claim, Flores provides the
sworn affidavit of Luis Velez ("Velez"), a former
Retention Manager at AT&T. Aff. of Velez 2, ECF No.
105-5. According to Velez's sworn statement, "if the
employee was on medical and/or disability leave[, ] the
performance metric percentages and targets were not adjusted
and the employee was expected to meet the performance metrics
and targets ..." Id. at 3. By not adjusting
performance targets, "AT&T penalized these employees
for taking medical leave and/or disability leave because the
employee[s'] [MTD] performance/percentage targets were
negatively affected, which negatively affected their monthly
and yearly performance metric targets..." Id.
at 3. The unadjusted performance metrics were then used to
"progress [employees] through the steps of discipline
for termination as quickly as possible." Id. at
also provided a sworn affidavit from Graciela Varela
("Varela"), formerly a Senior Office Clerk at
AT&T, who created EOD and MTD reports for various
supervisors at AT&T. Aff. of Varela 2-3, ECF No. 105-3.
According to Varela's affidavit, "never
did... anyone at AT&T tell me to adjust the targets for
an employee who was on FMLA leave." Id. at 2
(emphasis in original). Varela added that "AT&T
would [not] adjust the employee's targets or
goals to reflect FMLA or disability protected absences yet
still require[d] these employees to perform as if they had [
] 100% attendance." Id. (emphasis in original).
Instead, the employee performance targets contained in the
reports she prepared were only adjusted when an employee was
on long-term disability leave which would only start after an
employee had been out for eight consecutive days.
Flores alleges that AT&T Manager Cecilia Lezama
("Lezama") intimidated and pressured him whenever
he called to take FMLA leave. Flores's Mot. 10, 14, ECF
No. 105. Flores claims Lezama's treatment toward him
prevented him from taking FMLA leave. Id.
Flores argues that even if AT&T does adjust performance
targets to account for FMLA leave, his February 22, 2016,
absence was misclassified as absence for "iliness"
rather than FMLA-protected leave. Flores's Resp. 4, ECF
No. 114-1. As a result, AT&T did not adjust Flores's
performance targets for that absence, thus, penalizing him
for taking leave under the FMLA. Id. at 5-6.
AT&T's Factual Allegations
distinguishes between two types of data, "Issued"
and "Posted Data," maintained about each Account
Representative's performance. AT&T's Resp. 3, ECF
No. 126. Only "Posted Data" was used in the
decision to terminate Flores. Id. at 5. "Issued
Data" provides a temporary "snapshot" of the
initial sales data of an Account Representative. Id.
at 3. (citing Johnny Soliz Decl. ¶ 4, ECF No. 31-1;
Jennifer Morales Decl. ¶ 4, ECF No. 31-2). The Issued
Data is incorporated into EOD and MTD reports. Id.
The EOD and MTD reports and the underlying Issued Data were
not used to discipline or terminate Flores because they
"did not reflect the final sales data or [P]osted
[D]ata." Id. at 4. According to Johnny Soliz
("Soliz"), the General Manager for AT&T at
Flores's call center, "[t]he purpose of the
temporary EOD reports was to give [him], the Center Sales
Managers[, ] and the Sales Coaches an idea of how the sales
were trending on any given day in order to provide daily
feedback to Account Representatives and roughly [give] daily
sales trends." Soliz Decl. ¶ 1, 5, ECF No. 31 -1.
contrast, "Posted Data" reflects "final sales
amounts... which reflected sales that actually closed."
AT&T's Resp. 3, ECF No. 126. According to Soliz,
Issued Data could differ from Posted Data because
"initial sales order[s] were often reduced or cancelled
before they became final for many reasons (e.g., order was
cancelled, a chargeback occurred, installation problems
delayed the sale, etc.) and the temporary EOD reports did not
reflect this information." Soliz Decl. ¶ 5, ECF No.
Posted Data was reflected in an employee's
"Scorecard." AT&T's Resp. 4, ECF No. 126.
As part of the Scorecard's preparation, the total number
of call minutes for an Account Representative was adjusted to
reflect the protected FMLA leave taken thereby producing the
"Total Adjusted Minutes." AT&T's Mot. 9,
ECF No. 108. The Total Adjusted Minutes were then used and
applied to performance objectives in the Scorecard "to
ensure that the objectives were appropriately reduced to
account for the Account Representative's protected leave
time." Id. "Once those objectives were
adjusted, the Account Representative's performance was
then measured on his or her ability to meet the adjusted
objective for the month." Id. at 10. The
Scorecards were electronically generated by a computer
program. Id. at 6. Flores's managers at
AT&T-Alvarez, Jacquez, and Soliz-did not play a role in
preparing Flores's Scorecard, and they could not change
the data. Id.
to AT&T, "[t]he Scorecards alone served as a basis
for disciplining and dismissing employees. No other reports
served as a basis for disciplining or dismissing employees.
Neither EOD nor MTD data was considered for purposes of
generating Scorecard results. Scorecards were only generated
based on '[P]osted' [D]ata after the close of the
month." AT&T's Resp. 5, ECF No. 126. AT&T
claims that Flores's monthly Scorecards were adjusted
according to the process described above. AT&T's Mot.
10-13, ECF No. 108. After Alvarez and Jacquez issued two
warnings for failing to meet adjusted performance objectives,
Flores again missed his adjusted performance objectives in
March 2016. Id. at 14-15. Jacquez then recommended
to Soliz that Flores be dismissed, and Soliz approved the
request, dismissing Flores on April 21, 2016. Id.
AT&T asserts that Lezama "played no role in
approving or denying Flores's FMLA leave request."
AT&T's Resp. 2-3, ECF No. 126. She merely coded the
stated reason for the absence and notified another department
of the request. Id.
AT&T alleges that Flores did not provide medical
certification for his February 22, 2016, absence and is,
thus, not entitled to FMLA leave for that absence.
Id. at 17-19.
and AT&T have each filed a motion for summary judgment.
"The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). "A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion by ... citing to particular parts of materials in
the record ..." Fed.R.Civ.P. 56(c)(1). "[T]he plain
language of Rule 56[ ] mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
the moving party bears the burden of demonstrating the
absence of a genuine issue of material fact."
Cannata v. Catholic Diocese of Austin, 700 F.3d 169,
172 (5th Cir. 2012) (citing Celotex, 477 U.S. at
323). Where the burden of proof lies with the nonmoving
party, the moving party may satisfy its initial burden by
"'showing'-that is, pointing out to the district
court-that there is an absence of evidence to support the
nonmoving parry's case." Celotex, 477 U.S.
at 325. While the moving party "must demonstrate the
absence of a genuine issue of material fact, it does not need
to negate the elements of the nonmovant's case."
Duffie v. United States, 600 F.3d 362, 371 (5th Cir.
is "material" only if it would permit "a
reasonable jury ... [to] return a verdict for the nonmoving
party" and "might affect the outcome of the
suit." Douglass v. United Servs. Auto.
Ass'n, 65 F.3d 452, 458-59 (5th Cir. 1995),
aff'd en banc, 79 F.3d 1415 (5th Cir. 1996)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 250 (1986)). "If the moving party fails to
meet its initial burden, the motion for summary judgment must
be denied, regardless of the nonmovant's response."
Duffie, 600 F.3d at 371 (internal quotation marks
the moving party has met its Rule 56[ ] burden, the nonmoving
party cannot survive a summary judgment motion by resting on
the mere allegations of its pleadings." Id. The
nonmovant "must identify specific evidence in the record
and articulate [how] that evidence supports that party's
claim." Id. "This burden is not satisfied
with 'some metaphysical doubt as to the material
facts,' by 'conclusory allegations,' by
'unsubstantiated assertions,' or by 'only a
"scintilla" of evidence.'" Id.
(quoting Little v. Liquid Air Corp.,37 F.3d 1069,
1075 (5th Cir. 1994) (en banc)). "In deciding a summary
judgment motion, the court draws all reasonable inferences in
the light most favorable to the nonmoving party."
Id. (citing Liberty Lobby, 477 U.S. at
255). However, "[credibility ...