Cerda v. Olin Corp.

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ELIZABETH CERDA, Plaintiff. v. OLIN CORPORATION, et al., Defendants.

Civil Action No. 3:21-cv-00214

United States District Court, S.D. Texas, Galveston Division

June 9, 2023

OPINION AND ORDER

ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE.

Pending before me are two competing motions: (1) a Motion for Summary Judgment (Dkt. 28) filed by Defendant Blue Cube Operations LLC (“Blue Cube”); and (2) a Motion for Partial Summary Judgment (Dkt. 29) filed by Plaintiff Elizabeth Cerda (“Cerda”). Having reviewed the parties' briefing, the record, and the applicable law, I GRANT Blue Cube's Motion for Summary Judgment (Dkt. 28) and DENY Cerda's Motion for Partial Summary Judgment (Dkt. 29).

BACKGROUND

Cerda originally instituted this employment action against Olin Corporation (“Olin”) in Texas state court on July 14, 2021, alleging claims of sex discrimination, sexual harassment, and retaliation. On August 13, 2021, Olin removed the case to federal court on the basis of diversity jurisdiction. In doing so, Olin observed that its subsidiary Blue Cube, was Cerda's employer, not Olin. On December 15, 2021, Cerda filed an Amended Complaint against only Blue Cube, asserting her original claims of sex discrimination sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), and adding claims of Family Medical Leave Act (“FMLA”) interference or, in the alternative FMLA discrimination and retaliation. Discovery has concluded. Blue Cube seeks summary judgment on all of Cerda's claims, while Cerda seeks summary judgment only on her FMLA-related claims.

Before analyzing the parties' competing motions, I will review the few undisputed facts in this case. Cerda worked as a Cell Services Operator at Blue Cube/Olin's facility in Freeport, Texas (the “Freeport Facility”) from September 2006 until her employment was terminated on April 21, 2020.^[1] In December 2016, Cerda took workers' compensation leave after sustaining an on-the-job injury to her foot. In August 2017, Cerda took FMLA leave while recovering from rotator cuff surgery. Cerda exhausted all 12 weeks of FMLA-protected leave on February 6, 2018. Ultimately, Cerda was out on leave for approximately 18 months, though Blue Cube allowed her to return to her employment in December 2018. In October 2018, while Cerda was still on leave, her team changed leadership and she began reporting to Steven Gibbons (“Gibbons”). The parties do not dispute that Cerda informed Gibbons about her father's health issues at some point in 2018, with Cerda telling Gibbons that she “was going to make more of an effort to go on [her] lunch break to see [her father] to make sure he had his medicines and something to eat . . . to hold him down until [she] got off work.” Dkt. 30-1 at 8. It is also undisputed that at whatever time Cerda informed Gibbons about her father's health issues in 2018, Cerda was not yet eligible for FMLA leave-because she had exhausted her entitlement in February 2018-and did not become FMLA-eligible again until August 2019.

In January 2019, Cerda's mother died. Cerda's mother had been the primary caregiver for Cerda's father, who suffers from a variety of conditions that affect his ability to care for himself, including dementia. In early 2020, Gibbons told HR Manager Michelle Mulligan (“Mulligan”) that other workers had complained about Cerda missing shifts. All operators receive a 30-minute unpaid lunch break every day. “Blue Cube automatically deducts the 30 minutes for lunch from the operators' time and therefore operators are not expected to clock out/in for lunch unless they know they will exceed their 30 minutes.” Dkt. 28 at 10. “On April 1, 2020, Mulligan pulled Cerda's gate logs and time punch records for the previous three months” and found “a pattern of Cerda missing from the facility for approximately one hour or more each day around lunchtime, during at least part of which time she was being paid.” Id. at 11. Specifically, Cerda “was paid for 99 hours and 10 minutes that she did not work.” Dkt. 28-17 at 5.

On March 17, 2020, during the timeframe that Mulligan was investigating Cerda's alleged time theft, Cerda called in sick to work, reporting a potential exposure to Covid-19. On March 19, 2020, Cerda returned to work and asked which time code to use for her two-day absence. Upon being told that she needed to use personal sick days, Cerda became upset. The exact language that Cerda used in the heat of the moment is disputed. What is not disputed, however, is that numerous witnesses submitted written statements to Mulligan suggesting that Cerda threatened to infect them if she became ill. Compare Dkt. 28-2 at 22 (Cerda testified during her deposition: “What I did say was like, you know what, next time I'm sick, I'm not even going to tell nobody but my leader.” (emphasis added)), with Dkt. 28-13 at 2 (“She got angry and stated next time she would just come to work and get all these mother fuckers sick.”), Dkt. 28-14 at 2 (“Next time I won't say shit, and hope all you motherf'ers get sick.”), Dkt. 28-15 at 2 (“Next time I hope a [sic] get the coronavirus so I can give it to all you. I don't give a shit!”), id. at 3 (“[N]ext time I hope I really am sick and I'm going to come to work and I hope I get all of y'all sick.”), id. at 4 (“She stated that she hopes that she gets the virus so she could give it to all of us.”), and id. at 6 (“[Cerda] walked in frustrated about being sent home, then proceeded to say that she should've just came to work and didn't care if she got anyone else sick.”).

On April 17, 2020, Mulligan convened an Employee Review Meeting with HR Director Greg Cunningham (“Cunningham”), Texas Operations Site Leader Kyle Shelton (“Shelton”), and the Director of Manufacturing for Cell Services Bert Fleck (“Fleck”). After reviewing Mulligan's investigation into Cerda's time theft and threats, and Mulligan's recommendation that Cerda's employment be terminated, the group (Cunningham, Shelton, and Fleck) collectively decided to terminate Cerda's employment. Blue Cube officially terminated Cerda's employment on April 21, 2020.

Cerda does not dispute that she vented her frustration about missing work due to Covid-19 concerns to her coworkers, or that she was paid for time that she did not work. Rather, Cerda contends that she was terminated solely for time theft. Additionally, Cerda argues that the time she did not work “should have been FMLA protected.” Dkt. 31 at 14. Under Cerda's theory, if her time was FMLA-protected, then it cannot have been time theft, which would make Blue Cube's reason for firing her pretextual. Even if Cerda's leave was not FMLA-protected, Cerda maintains that time theft is nevertheless pretext for sex discrimination because “literally 100% of males received zero punishment for extended lunches and 100% of females were terminated for same.” Dkt. 31 at 24. Unrelated to her FMLA and sex discrimination claims, Cerda also alleges that she suffered sexual harassment and that her termination was retaliation for complaining of said harassment. I will address each of Cerda's claims in turn.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when “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 DISPUTE OF MATERIAL FACT IS “GENUINE” IF THE EVIDENCE WOULD ALLOW A REASONABLE JURY TO FIND IN FAVOR OF THE NONMOVANT. See Rodriguez v. Webb Hosp. Corp., 234 F.Supp.3d 834, 837 (S.D. Tex. 2017). The movant “bears the initial responsibility of informing the district court of the basis for its motion.” Brandon v. Sage Corp., 808 F.3d 266, 269-70 (5th Cir. 2015) (quotation omitted). To defeat a motion for summary judgment, the nonmovant must “present competent summary judgment evidence to support the essential elements of its claim.” Cephus v. Tex. Health & Hum. Servs. Comm'n, 146 F.Supp.3d 818, 826 (S.D. Tex. 2015). The nonmovant's “burden will not be satisfied by some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quotation omitted). Rather, the “nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim.” Brooks v. Houston Indep. Sch. Dist., 86 F.Supp.3d 577, 584 (S.D. Tex. 2015). In ruling on a motion for summary judgment, I must construe “the evidence in the light most favorable to the nonmoving party and draw[] all reasonable inferences in that party's favor.” Darden v. Simplicity Fin. Mktg., Inc., No. 4:18-CV-1737, 2019 WL 6119485, at *1 (S.D. Tex. Nov. 18, 2019). “Cross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004).

ANALYSIS

A. Cerda's FMLA Interference Claim

Cerda alleges that she “was entitled to FMLA leave to care for her father” and that Blue Cube “interfered with Cerda's entitlement to FMLA leave.” Dkt. 16 at 5. The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA. 29 U.S.C. § 2615(a)(1). To establish a prima facie FMLA interference claim, Cerda must show that:

(1) [s]he was an eligible employee; (2) h[er] employer was subject to FMLA requirements; (3) [s]he was entitled to leave; (4) [s]he gave proper notice of h[er] intention to take FMLA leave; and (5) h[er] employer denied h[er] the benefits to which [s]he was entitled under the FMLA.

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