Villegas v. Albertsons, LLC

96 F.Supp.3d 624

Arturo VILLEGAS, Plaintiff

v.ALBERTSONS, LLC and Antonio Labrado, Individually, Defendants.

No. EP–13–CV–14–DB.

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

Signed March 11, 2015.

Raymond D. Martinez, Martinez & Martinez Law Firm PLLC, El Paso, TX, for Plaintiff.

Charles C. High, Jr., Gilbert Luis Sanchez, Kemp Smith LLP, El Paso, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

DAVID BRIONES, Senior District Judge.

On this day, the Court considered Defendants Albertsons, LLC (“Albertsons”) and Antonio Labrado's (“Mr. Labrado”) (collectively, “Defendants”) “Motion for Summary Judgment” (“Motion”), filed in the above-captioned cause on June 14, 2013. Therein, Defendants ask the Court to enter summary judgment against Plaintiff Arturo Villegas (“Plaintiff”) on all of his claims. On July 10, 2013, the Court entered a short order granting Defendants' Motion. The Court will now explain the reasons for its decision.

BACKGROUND

This is an employment case involving claims under the Family and Medical Leave Act (“FMLA”) and the law of defamation. Plaintiff worked in the bakery at Albertsons, a national supermarket chain. Before that, Plaintiff worked at the same store location for two of Albertsons's predecessors there—“Smith's” and “Rainbow.” Pl. Dep. 10–11, 45; Labrado Dep. 5. Mr. Labrado was Plaintiff's supervisor in the bakery the whole time—nearly thirty years. Pl. Dep. 10–11, 45. The two men “were friends” who sometimes “would sit down and have lunch.” Labrado Dep. 18. Mr. Labrado considered Plaintiff a good employee who never had any significant performance issues. Id. at 10–13.

Plaintiff's daughter, who was approximately eleven years old when this litigation began, is disabled. Pl. Dep. 43. Because Plaintiff's wife is also disabled and cannot drive, Plaintiff is responsible for taking their daughter to medical appointments, which are scheduled, on average, for about every two weeks. Id.

Plaintiff's normal shift in the Albertsons bakery was 4:00 A.M. to 12:30 P.M., so when Plaintiff needed to take his daughter to morning appointments, a scheduling conflict arose. Labrado Dep. 20–21. When this happened, Plaintiff asked Mr. Labrado for time off. Plaintiff explained in his affidavit: “My conversations with Mr. Labrado were easy due to our long standing [sic] work relationship. He knew about my home life and the problems that I was having at home.” Pl. Aff. 2. Mr. Labrado knew that Plaintiff's daughter had a mental disorder, a “bedwetting problem,” “nightmares,” and that she “might need surgery some time down the line.” Labrado Dep. 17–18. Plaintiff's need for time off to attend his daughter's medical appointments was “something that [Plaintiff] and Tony Labrado ha[d] dealt with for over ten years”—first at Smith's, then at Rainbow, and finally at Albertsons. Pl. Dep. 10, 45. Plaintiff testified in his deposition that “sometimes I would ask for the day off for my daughter's appointment, and [Mr. Labrado] would say that I couldn't take it because there was a lot of work.” Id. at 49. Mr. Labrado “never refused” to give Plaintiff time off but “would always tell [him] to get in earlier” so that he could finish his shift in time for the appointment. Id.; Labrado Dep. 36–37. Typically, this meant adjusting Plaintiff's schedule so that he worked from midnight to about 8:30 A.M. Labrado Dep. 14–16.

When Albertsons acquired the supermarket from Rainbow, Plaintiff received a handbook of Albertsons policies on FMLA leave, which he did not read. Pl. Dep. 39. Plaintiff understood Albertsons's procedure for requesting FMLA leave to consist of “just ask[ing] Tony [Labrado].” Id. Mr. Labrado apparently did not disagree. When Mr. Labrado was asked at his deposition if Plaintiff needed to fill out “a particular form or something” to request leave “because of ... health concerns” involving “him or his family,” Mr. Labrado testified, “that would just be me, basically”—the employee would “[j]ust talk [ ] to [me].” Labrado Dep. 14–15, 20–21. Mr. Labrado never referred Plaintiff to the Albertsons handbook or informed him of Albertsons's procedures or his rights under the FMLA—Mr. Labrado just tried to “always accommodate [Plaintiff] in any way that [he] could.”Id. at 14.

Plaintiff believed that Mr. Labrado was “trying to help [him and his family] out” by adjusting his work schedule because it allowed Plaintiff to both attend his daughter's appointments and earn his normal paycheck. Pl. Dep. 49. Plaintiff attended all his daughter's appointments—he never missed one. Id. at 51. There is no evidence that Plaintiff ever objected to Mr. Labrado adjusting his work schedule or that Plaintiff would have preferred to take FMLA leave.

On Easter Day in 2011, Mr. Labrado gave Plaintiff permission to take home some empty plastic containers for personal use. Id. at 53–55. Plaintiff put the containers on a grocery cart to transport them to his vehicle in the parking lot. Id. at 55–57. Walking alongside his coworker Oswaldo Arias, who also worked in the bakery, Plaintiff pushed the cart toward the front exit. Id. at 58–59, 63. When Plaintiff and Mr. Arias reached the front of the store, Rosemary Santana, a supervisor, inspected the cart and asked about the contents of a cardboard box on the bottom of the cart. Id. at 63–66. Plaintiff responded that he did not know what was inside the cardboard box and that in fact he had not noticed it when he loaded the plastic containers onto the cart. Id. at 57, 64. At Ms. Santana's request, Mr. Arias opened the cardboard box, which turned out to contain more than ten pounds of meat. Id. at 64, 66; Quintana Decl. ¶ 7.

An investigation ensued in which Albertsons interviewed Plaintiff and reviewed store security footage. Ultimately, Plaintiff “was found not to be credible” in denying knowledge of the cardboard box because the “carts have honeycombed-shaped holes” that would have allowed Plaintiff to “see down to the lower rack,” and because the meat weighed enough to affect the cart's handling and thereby alert Plaintiff to its presence. Quintana Decl. ¶ 9. Further, store security footage did not support Plaintiff's account of where he got the cart. Id. Plaintiff explains in his affidavit: “I was subsequently terminated because Albertsons believed I was dishonest and tried to steal the package of meat from the bottom of the cart.” Pl. Aff. 3. Mr. Labrado played no role in the decision to terminate Plaintiff's employment; none of the decisionmakers knew of Plaintiff's requests for leave. Labrado Dep. 25; Quintana Decl. ¶¶ 10–12.

Despite Plaintiff's allegations in his Amended Complaint—the live complaint in this case—that Mr. Labrado accused him of stealing and called him a thief, Plaintiff recanted in his deposition, clarifying that Mr. Labrado in fact did no such thing. Pl. Am. Compl. ¶¶ 17 & 31; Pl. Dep. 84–85. Plaintiff testified that Mr. Labrado was “nice” to him when they talked after the meat incident and that Mr. Labrado never accused him of stealing. Pl. Dep. 84–85.

A few days after Plaintiff was terminated, Mr. Arias was terminated “for taking stuff and cooking back in the bakery, like hamburgers and that kind of thing.” Labrado Dep. 28–29. Sometime later, Albertsons also terminated Yolanda Saldivar, an employee in the meat department, for an unspecified theft. Id. at 36. There is no suggestion that Mr. Arias or Ms. Saldivar had ever requested FMLA leave.

On October 11, 2011, Plaintiff filed this lawsuit in state court. On January 14, 2013, Defendants filed a timely Notice of Removal.¹ Plaintiff's Amended Complaint states claims for FMLA interference, FMLA retaliation, and the tort of defamation. On June 14, 2013, Defendants moved for summary judgment on all of Plaintiff's claims. On June 28, 2013, Plaintiff responded, and on July 8, 2013, Defendants replied. On July 10, 2013, the Court entered a short order granting Defendants' Motion.

SUMMARY JUDGMENT STANDARD

“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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“Initially, 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, 106 S.Ct. 2548 ). Where, as here, 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 party's case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. 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.2010).

A fact 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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...