Gardea v. Dialamerica Mktg., Inc., EP-12-CV-158-KC

CHRISTOPHER A. GARDEA, Plaintiff,

v.DIALAMERICA MARKETING, INC., Defendant.

EP-12-CV-158-KC

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

SIGNED: April 30, 2013

ORDER

On this day, the Court considered Defendant DialAmerica Marketing, Inc.'s ("Defendant") Motion for Summary Judgment and Brief in Support ("Motion"), ECF No. 14. For the reasons set forth herein, the Motion is GRANTED in part and DENIED in part.

I. BACKGROUND

Christopher A. Gardea ("Plaintiff") began working for Defendant on August 30, 2010. Mot. Ex. 1 ("Defendant's Proposed Undisputed Facts") ¶ 2; Pl.'s Resp. to Def.'s Proposed Facts ¶ 2, ECF No. 21. Plaintiff worked in Defendant's El Paso, Texas, call center as a customer service and sales representative. Def.'s Proposed Undisputed Facts ¶ 2; Pl.'s Resp. to Def.'s Proposed Facts ¶ 2. Soon after being hired, Plaintiff received, read, and affirmed his understanding of Defendant's employee information booklet. Def.'s Proposed Undisputed Facts ¶ 2; Pl.'s Resp. to Def.'s Proposed Facts ¶ 2. This booklet contains Defendant's employee policies. Def.'s Proposed Undisputed Facts ¶ 2; Pl.'s Resp. to Def.'s Proposed Facts ¶ 2.

As a new employee, Plaintiff attended training sessions on how to effectively market products. See Def.'s Proposed Undisputed Facts ¶ 5; Pl.'s Resp. to Def.'s Proposed Facts ¶ 5. During one such training session, Plaintiff loudly stated that "[t]his is really stupid." Def.'s Proposed Undisputed Facts ¶ 5; Pl.'s Resp. to Def.'s Proposed Facts ¶ 5. Because of this comment, a supervisor, Linda Rivera ("Rivera"), immediately met with Plaintiff and spoke to him about professionalism. Def.'s Proposed Undisputed Facts ¶ 5; Pl.'s Resp. to Def.'s Proposed Facts ¶ 5. Rivera warned Plaintiff that further unprofessional conduct could lead to him being "replaced." Def.'s Proposed Undisputed Facts ¶ 5; Pl.'s Resp. to Def.'s Proposed Facts ¶ 5. Plaintiff then admitted that his comment was inappropriate. Def.'s Proposed Undisputed Facts ¶ 5; Pl.'s Resp. to Def.'s Proposed Facts ¶ 5. The meeting ended shortly thereafter. Def.'s Proposed Undisputed Facts ¶ 5; Pl.'s Resp. to Def.'s Proposed Facts ¶ 5. However, approximately ten minutes later, Plaintiff once again spoke to Rivera. Def.'s Proposed Undisputed Facts ¶ 5; Pl.'s Resp. to Def.'s Proposed Facts ¶ 5. Plaintiff then disclosed to Rivera that he was taking medications for HIV and that his medications caused psychological side effects and outbursts, such as his earlier comment. See Def.'s Proposed Undisputed Facts ¶ 5; Pl.'s Resp. to Def.'s Proposed Facts ¶ 5.

Two months later, in November 2010, Plaintiff filed an internal complaint alleging that Rivera had disclosed his HIV status to co-workers. See Def.'s Proposed Undisputed Facts ¶ 6; Pl.'s Resp. to Def.'s Proposed Facts ¶ 6. An internal investigation into Plaintiff's complaint was led by another manager, Arelys Roberts ("Roberts"). See Def.'s Proposed Undisputed Facts ¶ 6; Pl.'s Resp. to Def.'s Proposed Facts ¶ 6. The parties dispute whether the internal investigation corroborated Plaintiff's complaint. See Def.'s Proposed Undisputed Facts ¶ 6; Pl.'s Resp. toDef.'s Proposed Facts ¶ 6. However, the parties appear to agree that in December 2010, Plaintiff requested that the internal investigation be terminated. See Def.'s Proposed Undisputed Facts ¶ 6; Pl.'s Resp. to Def.'s Proposed Facts ¶ 6; App. in Support of Def.'s Mot. for Summ. J., ECF No. 14-2 ("Defendant's Appendix"), Ex. 7, at 20:18-21.

In March 2011, Plaintiff requested an extended medical leave of absence for surgery related to his HIV condition. Def.'s Proposed Undisputed Facts ¶ 11; Pl.'s Resp. to Def.'s Proposed Facts ¶ 11. At this time, Plaintiff notes that he told manager Estrada "that she was discriminating against [him] because of [his] HIV status." Pl.'s Aff. 2. Even though Plaintiff was not eligible for a leave of absence under the Family and Medical Leave Act ("FMLA"), Defendant granted Plaintiff a leave of absence from March 17, 2011, until April 15, 2011. Def.'s Proposed Undisputed Facts ¶ 11; Pl.'s Resp. to Def.'s Proposed Facts ¶ 11. Plaintiff did not return to work on April 15, 2011. See Def.'s Proposed Undisputed Facts ¶ 11; Pl.'s Resp. to Def.'s Proposed Facts ¶ 11. Rather, on April 20, 2011, Plaintiff presented Defendant with a doctor's note stating that he would not be able to return to work until May 4, 2011. Def.'s Proposed Undisputed Facts ¶ 11; Pl.'s Resp. to Def.'s Proposed Facts ¶ 11. Defendant granted this additional leave and Plaintiff returned to work on May 5, 2011. Def.'s Proposed Undisputed Facts ¶ 11; Pl.'s Resp. to Def.'s Proposed Facts ¶ 11. When he did return to work, Plaintiff would occasionally need to go home early for medical reasons. Pl.'s Resp. to Def.'s Mot. for Summ. J. and Brief in Support ("Response") 3, ECF No. 15 (citing App. in Support of Pl.'s Resp. to Def.'s Mot. for Summ. J., ("Plaintiff's Appendix"), Ex. 1 ("Plaintiff's Affidavit" or "Affidavit"), ECF No. 15-1). When he made such requests, Plaintiff states that a manager,Suzette Estrada ("Estrada"), would give him "grief" and "ask [him] if [he] was 'seriously doing this again.'" Pl.'s Aff. 2

Next month, on June 10, 2011, Plaintiff was suspended for violating Defendant's "clean desk policy." Def.'s Proposed Undisputed Facts ¶¶ 12-13; Pl.'s Resp. to Def.'s Proposed Facts ¶¶ 12-13. The clean desk policy, as explained in the employee information booklet, states that cellular telephones and other electronic equipment are not allowed at desks in the call center. Def.'s Proposed Undisputed Facts ¶ 12; Pl.'s Resp. to Def.'s Proposed Facts ¶ 12; Def.'s App. Ex. 4, at 59 (the clean desk policy). The rationale for this policy is that such devices could be used to record the confidential personal and business information—such as a home address or a credit card number—of Defendant's customers. See Def.'s Proposed Undisputed Facts ¶ 12; Pl.'s Resp. to Def.'s Proposed Facts ¶ 12. Plaintiff admits that there are no exceptions to this clean desk policy. Def.'s Proposed Undisputed Facts ¶ 12; Pl.'s Resp. to Def.'s Proposed Facts ¶ 12. Still, Plaintiff indicates that he often saw other employees using their cellular telephones during work to send text messages. Pl.'s Aff. 3. Regardless, Plaintiff was suspended for five days for having a cellular telephone at his desk. See Def.'s Proposed Undisputed Facts ¶ 13; Pl.'s Resp. to Def.'s Proposed Facts ¶ 13. Although he does not dispute that he violated the clean desk policy, Plaintiff notes that he had a cellular telephone at his desk as a timer to remind him to take his HIV medications. See Pl.'s Resp. to Def.'s Proposed Facts ¶ 13. After he was suspended for violating the clean desk policy, Plaintiff states that he "called the corporate hotline to complain about [this] disparate treatment." Pl.'s Aff. 3.

That same month, June 2011, Plaintiff was terminated for violating Defendant's "no call / no show" attendance policy. See Def.'s Proposed Undisputed Facts ¶¶ 14-15; Pl.'s Resp. toDef.'s Proposed Facts ¶¶ 14-15. Although seemingly not recorded in the employee information booklet, Defendant's attendance policy required Plaintiff to notify Defendant of his absence from work before the beginning of a shift. See Def.'s Proposed Undisputed Facts ¶ 14; Pl.'s Resp. to Def.'s Proposed Facts ¶ 14. On June 23, 2011, Plaintiff violated this attendance policy for a second time. Def.'s Proposed Undisputed Facts ¶ 15; Pl.'s Resp. to Def.'s Proposed Facts ¶ 15. On this occasion, Plaintiff failed to notify Defendant, prior to the beginning of his shift, that he would not be able to make his shift.¹ Def.'s Proposed Undisputed Facts ¶ 14; Pl.'s Resp. to Def.'s Proposed Facts ¶ 14. Both parties agree that this failure to abide by the attendance policy was the official reason for Plaintiff's termination. Def.'s Proposed Undisputed Facts ¶ 15; Pl.'s Resp. to Def.'s Proposed Facts ¶ 15.

On July 7, 2011, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") against Defendant for discrimination and retaliation. Def.'s Proposed Undisputed Facts ¶ 16; Pl.'s Resp. to Def.'s Proposed Facts ¶ 16. As a result of this charge, Plaintiff, on August 17, 2011, received a letter from the EEOC notifying him of his right to sue under the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964 ("Title VII"). See Def.'s App. Ex. 17, at 1 (EEOC right to sue letter). Plaintiff also filed a charge for discrimination and retaliation with the Texas Workforce Commission ("TWC") for "retaliation for requesting reasonable accommodation(s) for [his] disability" in violation of the ADA. See Def.'s App. Ex. 16, at 1 (TWC charge).

On February 24, 2012, Plaintiff brought suit in County Court at Law Number 3 of El Paso County, Texas. See Def.'s App. Ex. 18 ("Plaintiff's Petition" or "Petition"), at 1. In his state court Petition, in a section titled "Causes of Actions," Plaintiff numbers two causes of actions: (1) "Disability Discrimination, Hostile Work Environment, and Retaliation" and (2) "Family Medical Leave Act Violations - Wrongful Termination, Retaliation, and Interference." Id. at 4. The first claim is brought under the Texas Commission on Human Rights Act ("TCHRA") while the second claim is brought under the federal FMLA. Id. In a different section of his Petition, Plaintiff also indicates that "each time he was absent from work due to his disability and when accommodations were required[,] employees of the Defendant were unwilling to adhere to the requests." Id. at 3.

On April 30, 2012, Defendant removed the lawsuit to this Court, based on both federal question and diversity jurisdiction grounds. Def.'s Notice of Removal 1-4, ECF No. 1.

Then, on January 22, 2013, Defendant moved for summary judgment. See Mot. 14. Plaintiff timely submitted his Response in opposition to summary judgment on February 5, 2013. Resp. 18. As part of an appendix filed with the...