Ortega v. Chertoff

600 F.Supp.2d 828

Arturo ORTEGA, Plaintiff, v. Michael CHERTOFF, Secretary, Department of Homeland Security, Defendant.

No. EP-07-CV-285-KC.

United States District Court, W.D. Texas, El Paso Division.

October 20, 2008.

COPYRIGHT MATERIAL OMITTED

Enrique Lopez, Law Office of Enrique Lopez, El Paso, TX, for Plaintiff.

Eduardo R. Castillo, Assistant United States Attorney, El Paso, TX, for Defendant.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered "Defendant's Motion for Summary Judgment" ("Defendant's Motion") (Doc. No. 24), "Plaintiffs Responses [sic] to Defendant's Motion for Summary Judgment" ("Plaintiffs Response") (Doc. No. 29), and "Defendant's Reply to Plaintiffs Response to Defendant's Motion for Summary Judgment" ("Defendant's Reply") (Doc. No. 34). For the reasons set forth herein, Defendant's Motion is GRANTED.

I. BACKGROUND

The following derives from Defendant's Motion, which includes Defendant's Proposed Undisputed Facts ("Proposed Undisputed Facts") and Oral Deposition of Arturo Ortega ("Ortega Deposition"); Plaintiffs Response, which includes Declaration of Arturo Ortega Given Under Penalty of Perjury ("Plaintiffs Declaration"); Plaintiffs Amended Complaint (Doc. No. 15); and Defendant's Answer to Plaintiffs Amended Complaint ("Defendant's Answer") (Doc. No. 17).

Plaintiff Arturo Ortega is currently employed by the United States Department of Homeland Security as an Officer at the Bureau of U.S. Customs and Border Protection ("CBP"), El Paso, Texas. Pl.'s Decl. ¶ 4. The CBP's primary mission is to "detect and prevent terrorists and instruments of terror from entering the United States, enforce applicable laws, and facilitate the orderly and efficient flow of legitimate trade and lawful travelers." Proposed Undisputed Facts ¶ 2. Plaintiff has been a CBP Officer since 1998. Ortega Dep. 7:22-23 (July 7, 2008).

Plaintiff suffers from a sleep disorder as a result of two on-the-job automobile accidents, which occurred on June 15, 2000, and on March 19, 2003. See Pl.'s Decl. ¶ 5; see also Def.'s Mot. Ex. 13 at 2. Although Plaintiff sustained numerous injuries as a result of the accidents,¹ Plaintiff's doctor has stated that the sleep disorder is the only "actual physical limitation from the standpoint of his work description." Def.'s Mot. Ex. 13 at 2. Based on Plaintiff's doctor's recommendation, Defendant modified Plaintiffs work schedule to exclude Plaintiff from working any late night or early morning duty shifts. Pl.'s Decl. ¶ 12. This modified schedule began on November 2002 and continued until August 28, 2005. Id. David Longoria, Defendant's Port Director, states that the modified schedule was intended to be temporary, "in order to get [Plaintiff] to full working capacity." See Def.'s Mot. Ex. 16 at 3.

The job description for the CBP Officer position includes the requirement that all Officers "work on a shift and rotational basis and perform substantial amounts of overtime." Def.'s Mot. Ex. 10 at 5. According to Mr. Longoria, no CBP Officer can be permanently excused from working any particular shift because each Officer must be available at all hours of the day and night. See Def.'s Mot. Ex. 16 at 1. This allows the agency to "utilize all [O]fficers in any capacity" if the need arises, such as during an elevated alert level. Id. Before Plaintiff's first accident, Plaintiff was available to work all shifts, but claims that he "had only worked the midnight shift, [sic] two to four times, on a rare occasion during [his] two-year [pre-accident] tenure with the Defendant." Pl.'s Decl. ¶ 26. Plaintiff also claims that "some day and evening shift CBP Officers have never worked the midnight shift." Id.

On May 11, 2005, Plaintiff's doctor submitted a report to the United States Department of Labor which stated that Plaintiffs inability to work late night or early morning shifts was permanent. See Def.'s Mot. Ex. 15 at 1. On August 23, 2005, Mr. Longoria informed Plaintiff that the CBP could not permanently accommodate Plaintiff and that if he was unavailable for certain shifts, Plaintiff did not meet the requirements of a CBP Officer. Proposed Undisputed Facts ¶ 37. While Plaintiff does not dispute the substance of this conversation, Plaintiff believes that Mr. Longoria "[used] his weight and position to threaten [Plaintiff]." Pl.'s Decl. ¶ 62. On August 29, 2005, Plaintiff obtained a note from his doctor releasing Plaintiff to work all shifts. Def.'s Mot. Ex. 18. The note stated that the doctor "had no choice" but to write the note because Plaintiff "has to pay his bills." Id. In response to this note, Mr. Longoria sent Plaintiff a letter stating that any release "that appears to have been coerced, forced, inconsistent with your previous documentation and physical restrictions, or against the advice of your physician will be held in abeyance pending the outcome of a fitness for duty exam." Def.'s Mot. Ex. 19.

Defendant alleges that at the August 23, 2005, meeting, Plaintiff requested that he be transferred to a CBP Officer position at the "Command Center" or to a CBP Officer position at "Ysleta Cargo." Proposed Undisputed Facts ¶ 37. Plaintiffs Deposition confirms that he made these requests. See Ortega Dep. 112:6-16.² Plaintiff proceeded to apply for these positions,³ but was not selected for either position. See Pl.'s Decl. ¶¶ 33, 37. As to the Command Center position, Plaintiff contacted Doyle Morris, the El Paso Field Office's Border Security Coordinator, on November 10, 2005, apprised Mr. Morris of his restrictions, and learned that the position requires availability for all shifts. See Def.'s Mot. Ex. 20. Plaintiff formally learned that he was not selected for the position on January 26, 2006. See Pl.'s Decl. ¶ 21. Plaintiff formally learned that he was not selected for the Ysleta Cargo position on January 8, 2006. Id. ¶ 24.

Plaintiff contacted an Equal Employment Opportunity ("EEO") counselor on August 29, 2005, and on February 10, 2006. See Def.'s Mot. Ex. 2 at 2; Def.'s Mot. Ex. 5 at 2.⁴ The August 29, 2005, counseling led to an Equal Employment Opportunity Commission ("EEOC") employment discrimination complaint in which Plaintiff alleged disability discrimination and a hostile work environment based on his August 23, 2005, meeting with Mr. Longoria.⁵ See Def.'s Mot. Ex. 2. The February 10, 2005, counseling led to an EEOC employment discrimination complaint in which Plaintiff alleged disability discrimination and a hostile work environment; in the complaint, Plaintiff specifically mentioned his non-selection for the available Command Center and Ysleta Cargo positions. See Def.'s Mot. Ex. 5.⁶ The EEOC held a hearing on both complaints on January 25, 2007, and found that Plaintiff was not the victim of employment discrimination. See Def.'s Mot. Ex. 8.

Plaintiff filed a Complaint with this Court on August 17, 2007, and filed an Amended Complaint on February 12, 2008. See Pl.'s Compl. (Doc. No. 1); see also Pl.'s Am. Compl. In Plaintiffs Amended Complaint, Plaintiff claimed that Defendant discriminated against him on the basis of his disability in violation of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. § 791 et seq. Pl.'s Am. Compl. 8. Plaintiff also claimed that he suffered retaliation' because of his participation in the EEO process, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act. Id. at 8-9. Finally, Plaintiff claimed that Defendant's actions constituted a hostile work environment in violation of Title VII and the Rehabilitation Act. Id. at 9-10. Plaintiff seeks a declaratory judgment declaring Defendant's actions to be in violation of Title VII and the Rehabilitation Act, compensatory damages in the amount of $300,000, attorney's fees, court costs, and prejudgment and post-judgment interest. Id. at 10.

II. DISCUSSION

A. Standard

Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R.Crv.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Warfield v. Byron, 436 F.3d 551, 557 (5th Cir.2006). The substantive law identifies which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir. 1996). A dispute about a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Ellison, 85 F.3d at 189.

"[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1046-1047 (5th Cir.1996). If the moving party meets its initial burden, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). The nonmovant's burden may not be satisfied by "conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Warfield, 436 F.3d at 557 (quoting Freeman v. Texas Dep't of Crim. Justice, 369 F.3d 854, 860 (5th Cir.2004)). Factual controversies are to be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). Thus, the ultimate inquiry in a summary judgment motion is "whether the evidence presents a...