Tastan v. L. Alamos Nat'l Sec., LLC.

AUDRIAN TASTAN, Plaintiff, v. LOS ALAMOS NATIONAL SECURITY, LLC. Defendant.

No. 1:17-cv-00664-JCH-SCY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

May 17, 2019

MEMORANDUM OPINION AND ORDER

From 2003 to 2017, Ms. Audrian Tastan worked as an administrative specialist at Los Alamos National Laboratory. She brought this action against Los Alamos National Security LLC. ("LANS"),¹ claiming that it discriminated and retaliated against her based on her disability in violation of the Americans with Disability Act ("ADA"), 42 U.S.C. §§ 12101 et seq., by failing to reasonably accommodate her epilepsy disorder, retaliating against her for seeking reasonable accommodations, and then firing her because of her disability. LANS moved under Fed. R. Civ. P. 12(c) to dismiss allegations in Ms. Tastan's Amended Complaint ("Am. Compl.," ECF No. 4) concerning a hostile work environment. See Def.'s 12(c) Mot., ("MTD"), ECF No. 33. LANS then moved for summary judgment. See Def.'s Mot. for Summ. J., ("MSJ"), ECF No. 57. Invoking the familiar McDonnell Douglas² burden-shifting framework, LANS argues in its motion for summary judgment that Ms. Tastan cannot establish a prima facie case of either discrimination or retaliationunder the ADA, and that even if she could, LANS legitimately terminated her for allegedly using false pretenses to obtain confidential security clearance information about her brother.

The Court awards summary judgment to LANS. LANS proffered a nondiscriminatory, non-retaliatory reason for Ms. Tastan's termination and Ms. Tastan failed to show that reason was pretextual.

I. FACTUAL BACKGROUND

The following material facts are stipulated to: Ms. Tastan was diagnosed with epilepsy as a child and has experienced seizures at times during her childhood and adulthood. Def.'s MSJ, Undisputed Fact ("UF") ¶ 15. On February 21, 2017, Ms. Tastan resigned from LANS in lieu of termination. UF ¶ 1. At the time of her resignation, Ms. Tastan was employed as an administrative assistant in LANS' SAFE-IP (Information Protection) group. UF ¶ 2. Due to the nature of the work and the classified information they have access to daily, employees in LANS' SAFE-IP group are held to the highest standards of honesty and truthfulness. UF ¶ 3. While employed in LANS' SAFE-IP group, Tastan was required to hold, and did hold, a "Q" level security clearance from the Department of Energy. UF ¶ 4.

The following additional disputed material facts, construed in the light most favorable to Ms. Tastan as the nonmoving party, show the following. See DePaula v. Easter Seals El Mirador, 859 F.3d 957, 961 (10th Cir. 2017).

a. 2008 Seizure

In 2008, Ms. Tastan experienced a seizure while working. Deposition of Audrian Gásca Tastan 116:25, Pl.'s Resp. Br., Ex. A, ECF No. 61-1 ("Tastan Dep."). According to Ms. Tastan, in response to her seizure LANS placed her on a "fitness for duty under the false presumption that [she] was unable to work because [she] had [three] seizures." Affidavit of Audrian Tastan ¶ 9, ECFNo. 61-1 ("Tastan Aff."). In response, LANS' Occupational Medical Division placed various temporary work restrictions on Ms. Tastan's employment, including restricting her access to classified material and prohibiting her from driving while on official business. See Memorandum re: Clarification on Escort Status, Pl's Ex. I, ECF No. 61-1.

b. Ms. Tastan's History of Reassignment or Schedule Change Requests

In 2014, shortly after Ms. Tastan had been assigned to work in the Weapons Division at the Laboratory, she had a seizure at work. Tastan Dep. 68:15-17. In April 2014, Ms. Tastan reported to Ms. Patty Blount, who was either a staff operations manager or chief-of-staff, of "difficulty in personalities" with Ms. Tastan's direct manager, Ms. Kelly Martinez, who caused her undue stress, hardship, and created a hostile environment, prompting Ms. Tastan to request a reassignment to a different unit within the Weapons Division with a less intense workload. Id. 68:15-22; Tastan Dep. 242:19-25 - 243:1-4, ECF No. 57-1. Another employee, Mr. Jay Carnes, denied Ms. Tastan's request. Id. 214:1-2.

According to Ms. Tastan's affidavit, in December 2014, she suffered another seizure. Tastan Aff. ¶ 10. In February 2015, Ms. Tastan requested to be reassigned, informing her managers that she was working in a stressful and hostile work environment. Id. In March 2015, Ms. Tastan suffered another seizure at work. Id. She told her manager, Manny Garcia, that the group she was working in was affecting her health, and requested a reassignment. Id.

Sometime in 2015, Ms. Tastan requested a schedule change so that she could take her youngest child to school later in the morning. UF ¶ 19. At first her managers did not approve her request, prompting Ms. Tastan to complain with LANS' Ombuds Office, which eventually sided with Ms. Tastan. Tastan. Dep. 142:12-16; 144:4-5. After the Ombuds Office's decision, Ms. Elaine Rodriguez, Acting Staff Operations Manager, approved Ms. Tastan's request to alter her schedulefrom a 40-hour week to a 34-hour week, but required Ms. Tastan to sign a memorandum of understanding ("MOU"). See E-mail from Elaine Rodriquez to Audrey Tastan (Sept. 15, 2015); MOU, Def.'s Ex. D, ECF No. 57-4 at 1-2.

Both parties agree that this schedule change request was not based on accommodating Ms. Tastan's epilepsy. UF ¶ 20. According to Ms. Tastan, however, two other secretaries with equivalent jobs requested deviated work schedules but were not required to sign memoranda. Tastan Dep. 150:3-14. Making her sign the MOU was a sign that she was being treated unfairly for reporting to the Ombuds Office and "because of the fact that [she] was getting sick," and that her disability was "acting up." Id. 144:11-18. Believing that her schedule change request generated tension and animosity between her and her mangers, Ms. Tastan went back to her regular schedule after only two-weeks of being on the abbreviated schedule. Tastan Dep. 159:1-7; 249:11-16. Moreover, Ms. Tastan testified that shortly after she made her report to the Ombuds Office, managers gave Ms. Tastan a bad performance review. Id. 76:20-25 - 77:1-3. In one performance review, which is not in the record but was discussed by the parties at deposition, Ms. Tastan indicated that she asked Ms. Rodriquez to provide specific examples of the negative comments and that Ms. Rodriquez did not provide any such examples. Id. 180:13-25 -181:1-6.

In April 2016, Ms. Tastan suffered another seizure at work. Tastan Aff. ¶ 10. That same day, Ms. Tastan told her supervisor's supervisor, Ms. Elizabeth Hogan, that she needed to be reassigned to a different department. Id. By May 2016, Ms. Tastan was actively looking for a job reassignment within LANS. For instance, she sent an email to Ms. Hogan that she wished to be reassigned from the Weapons Division because she could not "deal with the poor management personalities and the stressful work environment." Email from Audrey Tastan to Elizabeth Hogan (date not imprinted), Def.'s Ex. F., ECF No. 57-6; Tastan Dep. 221:14-20. By the end of May2016, LANS approved Ms. Tastan's assignment from the Weapons Division to the SAFE-IP group. Email from Audrey Tastan to w-11@lanl.gov (May 31, 2016), Def.'s Ex. G, ECF No. 57-7.³ Despite being reassigned, Ms. Rodriguez later ignored Ms. Tastan's request to secure office space for a SAFE-IP employee, and one day Ms. Rodriquez asked Ms. Tastan if Ms. Tastan had a problem with Rodriquez. Tastan Dep. 73:21-25 - 74:1-16.

In November 2016 Ms. Tastan says she suffered another seizure, although she presented no evidence that LANS was aware of that seizure or that she requested an accommodation based on that seizure. Id. 10:2-4.

c. Human Resources Investigation of Ms. Tastan and Termination Decision

In December 2016, about six or seven months after Ms. Tastan switched to the SAFE-IP group, Mr. David Rudolph, a Human Resources-Employee Relations ("HR") investigator, opened a fact-finding investigation concerning allegations that Ms. Tastan used false pretenses to obtain security clearance about her brother, Jacob Gasca. Declaration of David Rudolph, ECF No. 57-3 at 1 ¶¶ 1-5 ("Rudolph Decl."); Mr. Rudolph's Report, ECF No. 57-3 at 2 ("Rudolph Report"). Mr. Rudolph's investigation included multiple witness interviews and allowed Ms. Tastan to provide her account of events. UF ¶ 8.

According to Mr. Rudolph's report, on December 8, 2016, Ms. Tastan went to LANS' Clearance Processing office and asked two employees, Ms. Christine Unzueta and Ms. Lecole Trujillo, why Jacob Gasca's security clearance had been taken away without disclosing that Mr. Gasca was her brother. Rudolph Report at 2.⁴ Ms. Tastan admitted to Mr. Rudolph and during a deposition that she did not disclose that Mr. Gasca was her brother. Id. at 3; Tastan Dep. 30:9-12. Mr. Gasca was a contract worker who lost his job with LANS after his security clearance was terminated. Rudolph Report at 9. Because Ms. Tastan did not want "there to be an issue with [] asking about his clearance," she told Ms. Trujillo and Ms. Unzueta that Gasca was a contractor. Tastan Dep. 30:2-3; 18. And since Mr. Gasca technically was a contract worker, Ms. Tastan testified that she did not believe she was hiding any information concerning Mr. Gasca or being deceitful, so she "just didn't go into detail and provide who he was and what [her] relation to him was." Id. 30:15-20. Moreover, LANS has no policy against asking about another person's security clearance. Tastan Aff. ¶ 5.

Based on various witnesses' statements, including Ms. Tastan's, HR concluded that Ms. Tastan "engaged in dishonest and deceptive behavior" and misrepresented her role and reason for asking for Mr. Gasca's security clearance information. Rudolph Report at 3. HR credited Ms. Unzueta's and Ms. Trujillo's rendering of events over that of Ms. Tastan's. Id. After considering the following five aggravating factors - (i) Ms. Tastan's position as an...