Pena v. First State Bank of Odem

UNITED STATES DISTRICT COURT September 03, 2019

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

CORPUS CHRISTI DIVISION

CYNTHIA PENA, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 2:18-CV-426

§

FIRST STATE BANK OF ODEM, §

§

Defendant. §

ORDER

Plaintiff Cynthia Pena (Pena) filed this action against her former employer, First

State Bank of Odem (the Bank). Contrary to the Bank’s assertion that she resigned or

abandoned her job, Pena complains that she was terminated and that the termination was

discriminatory and retaliatory on the basis of religion and disability. D.E. 1. She also

claims that the Bank failed to accommodate her disability. Id.

Before the Court is Defendant Bank’s motion for summary judgment. D.E. 18.

The Bank seeks dismissal of all claims for failure to demonstrate a prima facie case and

failure to raise a disputed issue of material fact on pretext. D.E. 18. The Bank also

asserts that the religious discrimination claims are barred by limitations. Pena filed her

response objecting to the Bank’s evidence and disagreeing with its factual analysis. D.E.

21. The Bank filed a reply and a subsequent motion for leave to file that reply in excess

of the page limits. D.E. 22, 23. The Court GRANTS the motion for leave (D.E. 23) and

considers the reply in its entirety. For the reasons set out below, the Court GRANTS the

motion for summary judgment (D.E. 18) and DISMISSES this action.

STANDARD OF REVIEW

A. Summary Judgment

Summary judgment is proper if there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A

genuine issue exists “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The court must examine “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law.” Id. at 251–52. In making this determination, the court must consider the

record as a whole by reviewing all pleadings, depositions, affidavits, and admissions on

file, and drawing all justifiable inferences in favor of the party opposing the motion.

Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002).

The court may not weigh the evidence or evaluate the credibility of witnesses. Id.

Furthermore, “affidavits shall be made on personal knowledge, shall set forth such facts

as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein.” Fed. R. Civ. P. 56(e); see also

Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (per

curiam) (refusing to consider affidavits that relied on hearsay statements); Martin v. John

W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (per curiam) (stating that

courts cannot consider hearsay evidence in affidavits and depositions).

The moving party bears the initial burden of showing the absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving

party demonstrates an absence of evidence supporting the nonmoving party's case, then

the burden shifts to the nonmoving party to come forward with specific facts showing

that a genuine issue for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). To sustain this burden, the nonmoving party cannot

rest on the mere allegations of the pleadings. Fed. R. Civ. P. 56(e); Anderson, 477 U.S.

at 248. “[T]he substantive law will identify which facts are material. Only disputes over

facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. “After the

nonmovant has been given an opportunity to raise a genuine factual issue, if no

reasonable juror could find for the nonmovant, summary judgment will be granted.”

Caboni, 278 F.3d at 451.

B. Discrimination/Retaliation

When a plaintiff relies on circumstantial evidence to prove discrimination or

retaliation, the courts use the burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-804 (1973). Under that framework, the plaintiff must first

establish a prima facie case. If successful, the burden of production shifts to the

defendant to articulate a non-discriminatory or non-retaliatory reason for the adverse

employment action. Id.; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993) (this

is a burden of production, not persuasion). If defendant articulates such a reason, then the

burden of proof returns to the plaintiff to raise a disputed issue of material fact that the

defendant’s stated reason is mere pretext for discrimination or retaliation. E.E.O.C. v.

Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009) (disability

discrimination case); LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 388-89 (5th

Cir. 2007) (retaliation case).

DISCUSSION

A. Facts

The Bank initially hired Pena in the 1990s. She voluntarily left the Bank’s employ

to work elsewhere and was re-hired in 2000. At that time, she started as a teller and,

through multiple promotions, became Branch Manager at the Bank’s Robstown branch.

On April 14, 2017, Pena was not feeling well. Her husband came to the bank, took her

pulse, and declared that she was having heart palpitations and needed medical attention.

Pena left with her husband and never returned to work.

While there are no medical records in evidence, Pena testified to a nearly four-

month medical odyssey, including the initial emergency room visit on April 14, 2017,

through a number of doctors and alternative medicine practitioners concerned with her

heart, liver, colon, and anxiety. She claims to have been tested at M.D. Anderson’s

cancer center and diagnosed with a small tumor in her colon. Her doctor told her he was

“more than sure it was malignant.” Nonetheless, further testing was “inconclusive.”

D.E. 21, p. 29. She represents this inconsistent hearsay as a diagnosis of unspecified

cancer.

Throughout this time, she generally did not communicate with the Bank unless its

employees contacted her first. Her silence was despite her knowledge that Bank policy

required doctor’s notes for employees who were out sick for more than a day or two.

D.E. 18-1, pp. 8-9. After Pena had been absent three weeks, James Spruce, the Bank’s

Vice President of Operations, requested a doctor’s excuse. D.E. 18-1, p. 9. On May 11,

2017, Pena provided one that said only that Pena was under the doctor’s care and, “Allow

her to be absent from work for 2 weeks until medically cleared.” D.E. 18-1, pp. 12, 66.

Pena did not return to work in two weeks and did not provide any additional doctor

excuses or proof of medical restrictions on work. Id. Previously, Pena’s family doctor

had issued an excuse dated May 2, 2017, stating that Pena could return to work without

restrictions on May 16. D.E. 18-1, p. 12. Pena did not provide that excuse to the Bank or

produce it with her discovery responses. Id., p. 13; D.E. 21, p. 37.

On May 24, 2017, Pena texted Craig Cavitt, the Bank’s Senior Vice President and

Cashier, with questions about the status of her job, insurance benefits, and her COBRA

rights, concerned that her job was in jeopardy because of her absence. D.E. 18-1, pp. 13-

15. She advised Cavitt on June 16, 2017, that she had a tumor and said, “thank u for all

the bank has done for me.” Id., pp. 63-64. She also asked him to advise her of when her

paid leave would expire, which he did. Id. She admitted, “I knew my position wasn’t

guaranteed if I was sick.” D.E. 21, p. 29. On June 17, 2017, Pena texted Spruce the

news that she was diagnosed with colon cancer. D.E. 18-1, pp. 15-17. She thanked him

for being a good boss and told him she had enjoyed working at the bank. Id. She also

wrote, “maybe some day I will return & get the opportunity to work again.” D.E. 18-1,

pp. 61-62.

With the Bank’s cooperation in providing the necessary forms and urging her to

submit the claim right away, Pena filed a claim for long term disability insurance on July

3, 2017, not knowing when she would be well enough to work. D.E. 18-1, pp. 18-19, 29.

She also applied for, and received, unemployment. Id., p. 20; D.E. 21, p. 32. The Bank

paid Pena through July, based on her remaining sick leave and annual leave benefits.

D.E. 18-1, pp. 26-28.

On August 3, 2017, the Bank advised Pena that they had to clean out her office.

The next day, a Friday, Pena went to the Bank to clear out the desk herself, shredding

notes about Bank operations that she had kept for her personal use. At that point, Pena

had not previously presented herself as ready, willing, and able to return to work. D.E.

21, p. 32. However, she went to Cavitt’s office that day to tell him she was fine and

ready to come back to work. On the following Monday, she initiated contact with

supervisors, claiming that she was ready to return to work but did not yet have a doctor’s

release. D.E. 18-1, pp. 52-53.

By August 9, 2017, Pena had spoken with her former supervisor, Corina Garcia,

who had resigned in April 2016. D.E. 21, p. 62. Garcia suggested that the Bank officers

discriminated against Pena because of her Jehovah’s Witness faith. While this was a new

idea to Pena, she immediately decided to hire an attorney to make this claim. D.E. 21, p.

34. She filed her EEOC Charge of Discrimination on November 10, 2017. D.E. 18-1,

pp. 70-75.

With respect to religion, it is undisputed that the Bank re-hired Pena in 2000,

knowing that she was a Jehovah’s Witness and that it employs other adherents to that

faith. It is further undisputed that the Bank permitted Pena to take a week off every year,

with pay, to attend the Jehovah’s Witness annual convention. However, Pena has

testified to a number of instances related to supervisory employees taunting her because

Jehovah’s Witnesses do not celebrate holidays.

In particular, her supervisor, Beverly Moore, questioned whether Pena, like other

employees, could accept a full-size poinsettia given one time in anticipation of the

Christmas holiday by a bank director. Pena did receive one and accepted it as a kind

gesture, not as a holiday celebration. Moore deliberately excluded Pena from the count

of employees to receive a customer-supplied personal staff gift of a small poinsettia.

Pena did not receive that gift. Moore also teased Pena about bonuses given in December,

commonly referred to as a Christmas bonus. Despite the commentary, Pena did receive

annual bonuses like the rest of the employees. All of these religious complaints are

associated with the tenure of Beverly Moore, who retired in 2012.

While Pena did not identify any other particular instance of religious

discrimination after Moore’s retirement, Corina Garcia, the Bank’s former Vice President

of Operations, testified that another branch manager told her that Cavitt and Chairman of

the Board Buddy Wood, along with an administrative assistant, were prejudiced against

Pena because of her religion and that Garcia should anticipate obstacles to any effort she

might make to further promote Pena. Cavitt specifically objected to Pena getting the

Fourth of July week off every year for the Jehovah’s Witness convention and he wanted

to ensure that if any other more senior employee wanted to take that week off, that no

preference should be given to Pena. D.E. 21, p. 55. According to Garcia, there was

never a conflict between the vacation schedules and Pena was able to take that week off.

B. Evidentiary Objections

Spruce Affidavit. Pena objects to a number of statements in Spruce’s affidavit as

“bare allegations of fact, conclusory facts or legal conclusions” or “opinion offered as a

fact in the form of a conclusion.” D.E. 21, pp. 1-2. The observation regarding what Pena

failed to provide to the Bank in terms of the duration or reason for her absence or date of

expected return is proper fact testimony. It is further cumulative of Pena’s own

testimony regarding the information she did and did not provide.

The objection regarding the content of the doctor’s excuse that Pena provided is

cumulative of the note, which is in evidence and not subject to objection. Spruce’s

testimony that he was aware that Pena came to the bank to clean out her desk is

cumulative of Pena’s own testimony that, when she found out the Bank was going to

clean out her office, she went to her office and removed and shredded notes about Bank

business that she had kept for her own personal use. It is also admitted in Pena’s

response that she went to the Bank to clean out her desk. D.E. 21, ¶¶ 36, 52. Spruce’s

testimony that he was aware of this development is within his personal knowledge and is

appropriate evidence. The objections to Spruce’s affidavit are OVERRULED.

Cavitt Affidavit. Pena objects to Cavitt’s statement that he contacted Pena during

her absence and let her know she could not remain absent indefinitely as without time

and date context. Sufficient context is provided by “during her absence.” Pena has not

raised any issue in this case that requires narrowing the time frame for this statement.

Cavitt’s mention of the text message Pena sent to Spruce is outside the definition of

hearsay because it concerns a statement of a party opponent. Fed. R. Evid. 801(d)(2)(A).

It is further cumulative of the actual printout of the text message, which is in evidence

and not subject to objection. D.E. 18-1, p. 69. The conclusions Cavitt drew from Pena’s

communications, or lack of communications, is appropriate fact testimony.

Likewise, Cavitt’s testimony that he discussed Pena’s benefits with her because

she had indicated she would not be returning to work is cumulative of Pena’s own

testimony that: she wanted to be kept apprised of when her leave time would expire; she

was not ready to return to work even after her sick leave and annual leave were both used

up; she had not advised the Bank of any proposed return date; and she hoped that

“someday” she would be able to return to work, thanking her colleagues for having been

good bosses. The testimony that Pena indicated her resignation is proper fact testimony,

cumulative of Pena’s testimony admitting to sending the texts referenced in the affidavit.

The objections to Cavitt’s affidavit are OVERRULED.

Corina Garcia’s Deposition. The Bank objects to much of Corina Garcia’s

testimony on the basis of hearsay. In particular, Garcia’s recitation of things allegedly

said by Lana Tong for the truth of the matter asserted—that Moore, Cavitt, and Wood did

not like Pena because of her religion and would create obstacles to Pena’s success—are

classic hearsay. As such, they are inadmissible.

Moreover, Garcia’s testimony does not purport to relate personal knowledge of

any Bank conduct during the 300 days included in the limitations period. Garcia’s tenure

at the Bank ended in April 2016. D.E. 21, p. 44. The 300 days included in the

limitations period, discussed more fully below, begins January 14, 2017. Garcia’s

testimony thus does not include any personal knowledge of events taking place within the

Bank during the applicable time period. It is irrelevant. The objections are SUSTAINED

and the Court disregards the deposition testimony.

Pena’s Deposition. The Bank objects to Pena’s recitation of the conclusions she

derived from Corina Garcia’s statements that Bank supervisors wanted Pena gone

because of her religious affiliation. The stated objections are: hearsay, conclusory, and

not based on personal knowledge. Pena admitted in her testimony that, other than the

incidents involving Moore prior to the close of 2012, she did not know about any

discriminatory acts or attitudes on the part of the Bank or its employees. She only

listened to Garcia and thought about it, concluding that it “made sense.” Pena’s

testimony in this regard is not based on personal knowledge.

As set out above, the Bank also objects to Garcia’s testimony as hearsay and as

irrelevant. Garcia’s testimony is hearsay and speculative as to individual motivations and

any causal relationship between those motives and Pena’s employment status in 2017.

That part of Pena’s testimony, based entirely on what Garcia’s told her, is not admissible.

The objections are SUSTAINED and the Court disregards all of Pena’s testimony based

on Garcia’s assertions derived from the statements of others.

Pena’s Affidavit. The Bank objects to Pena’s affidavit and moves to strike it on

the basis that it is not based on personal knowledge but is speculative, she is not

competent to offer the conclusions made, it is hearsay, and it recites inadmissible legal

conclusions or argument. With respect to Pena’s recitation of her treatment at the hands

of Beverly Moore, the affidavit is cumulative of Pena’s deposition testimony in the

record, to which no objection has been made. The statements attributed to Moore are not

offered for their truth but only as evidence of her treatment of Pena and are thus not

hearsay and are within Pena’s personal knowledge. Subject to a legal determination of

the effect of such testimony, given the statute of limitations and the requirement of a

causal nexus between conduct and any adverse employment action, the Court

OVERRULES the objections and admits that portion of the affidavit.

Pena’s recitation of her conversations with Cavitt and Spruce between August 3

and 7, 2017, are within her personal knowledge and recount statements of a party

opponent. Thus they do not constitute inadmissible hearsay. Fed. R. Evid. 801(d)(2)(A).

The Court OVERRULES the objections to that portion of Pena’s affidavit. However, as

the affidavit recounts what Irma Garza said that Mr. Delgado told her, the testimony is

inadmissible hearsay. The Court SUSTAINS the objections to that portion and excludes

it.

On the basis of unsupported conclusion, the Bank objects to the sentence: “Mr.

Cavitt had the power and authority on deciding that I be terminated without a reasonable

cause.” Given Pena’s tenure with the Bank and her former position as branch manager,

Pena has the background to testify whether Cavitt had authority to hire and fire on behalf

of the Bank. The objection is OVERRULED as to that portion of the sentence. The

clause that concludes that Pena was terminated without reasonable cause is conclusory

and argumentative and, to the extent that it is stated as fact, the objection is SUSTAINED

and the clause is excluded.

The Bank objects to Pena’s claim that Cavitt was required to, and did not, explain

procedures regarding the information expected of her with respect to her illness and

request for leave. The basis of the objection appears to be that it conflicts with Pena’s

deposition testimony that she, as a branch manager, was aware of the sick leave policies

regarding doctor’s excuses and had enforced them herself. Internal inconsistency is not a

basis for excluding testimony. At the same time, however, a party cannot raise a disputed

issue of material fact by impeaching his own prior testimony. Doe ex rel. Doe v. Dallas

Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000) (a nonmoving party may not

manufacture a dispute of fact by providing an affidavit inconsistent with prior

testimony—without explanation—merely to defeat a motion for summary judgment).

The Court OVERRULES the objection.

Complaining that the testimony is incomplete and conclusory, the Bank objects to

Pena’s suggestion that Cavitt treated her less favorably than three other employees and

himself with respect to long term absences based on illness. The issue before the Court is

whether Pena followed appropriate procedures and supplied the necessary information to

get approval for a long term medical leave of absence. Her testimony regarding the other

employees offered as comparators does not touch on this material issue. It is conclusory

and irrelevant. The Court SUSTAINS the objections.

The Bank also takes issue with Pena’s characterization of Cavitt’s motivations on

June 29, 2017, handling the paperwork to allow Pena to claim her COBRA rights. It also

disputes Pena’s representation that she was accruing sick leave at the time. It is

undisputed that Pena’s last paycheck covered the period ending July 13, 2017, and that

the Bank had kept her apprised of this end to her income. Pena engages in speculation

when she attributes sinister motives to Cavitt’s effort to provide Pena with long-term

disability and COBRA information. Such speculation is inadmissible and the Court

SUSTAINS the objections to Pena’s assertions regarding Cavitt’s motivation. The issue

of whether Pena was accruing sick leave has not been developed in this case and the

Court holds that any objection to that information is moot.

C. Limitations and Religious Discrimination

Pena brings her religious discrimination and retaliation claims pursuant to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The unlawful

employment practice of which she complains is her alleged termination on or about

August 3, 2017. The limitations period for initiating an Equal Employment Opportunity

Commission (EEOC) claim of employment discrimination is 180 days after the

termination. 42 U.S.C. § 2000e-5(e)(1). Alternatively, if the complainant files with the

Texas Commission on Human Rights (TCHR) (a state agency with authority to grant or

seek relief from discriminatory practices), the limitations period is extended to 300 days

of the termination. Id. Pena filed her Charge of Discrimination on November 10, 2017,

simultaneously with both the TCHR and the EEOC. Under those circumstances, the 300-

day limitations period applies. Griffin v. City of Dallas, 26 F.3d 610, 613 (5th Cir. 1994).

Pena’s claim, filed 99 days after the alleged termination, is timely.

That does not mean, however, that Pena can draw on any past misconduct to

support her current claim. In particular, the Bank seeks to eliminate consideration of any

conduct preceding the 300-day limitations period. That includes the poinsettia and

annual bonus controversies that took place in or before 2012, Pena’s complaints about

being denied a floater to assist with workload in 2015, and complaints about computer

maintenance. See D.E. 18-1, p. 70. The Bank’s argument is consistent with Pena’s own

charge that lists the dates on which discrimination took place as being between March 24,

2017, at the earliest and August 4, 2017, at the latest. D.E. 18-1, p. 74.

Pena argues that checking the box for a “continuing action” allows consideration

of all past conduct as relevant historical information, citing Fisher v. Proctor & Gamble

Mfg. Co., 613 F.2d 527 (5th Cir. 1980) and Soto v. El Paso Natural Gas Co., 942 S.W.2d

671, 677 (Tex. App.—El Paso 1997, writ denied). In Fisher, the Fifth Circuit was faced

with evidence of past discriminatory hiring practices that were perpetuated by a policy

that required an employee, before transferring to a better position, to forfeit previously-

acquired seniority. The Court found no error in the trial court’s consideration of evidence

that “is relevant and admissible to show possible plant-wide discriminatory conduct with

continuing effects, the probability of the continuation of such conduct, and the

relationship between past actions and present effects and actions.” 613 F.2d at 540. The

court was careful to specify that the test for considering such pre-limitations evidence is

more liberal when the case is a class action challenging broad and sweeping

discriminatory policies. This is not such a case.

In Soto, the state court evaluated pre-limitations conduct in connection with a

claim of a hostile work environment, sexual harassment claim. The claim, by its very

nature, required evidence of conduct that was severe and persistent under the totality of

circumstances. Thus, historical evidence was necessary and was limited to that which

was part and parcel of the conduct falling within the limitations period.

While Pena is correct that both of these cases allowed evidence of historical

context, they both did so under circumstances in which the historical evidence was

clearly related to the particular adverse employment action that was not time-barred.

This has been the approach in the Supreme Court and in the Fifth Circuit, as described in

Gallentine v. Housing Auth. of City of Port Arthur, Tex., 919 F. Supp. 2d 787, 800 (E.D.

Tex. 2013):

First, the plaintiff must demonstrate that the separate acts are

related, or else there is no single violation that encompasses

the earlier acts. Second, the violation must be continuing;

intervening action by the employer, among other things, will

sever the acts that preceded it from those subsequent to it,

precluding liability for preceding acts outside the filing

window. Third, the continuing violation doctrine is tempered

by the court's equitable powers, which must be exercised to

honor Title VII’s remedial purpose without negating the

particular purpose of the filing requirement.

919 F. Supp. 2d at 800 (citations to Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328

(5th Cir. 2009) and Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002),

internal quotation marks omitted; both cases are hostile work environment cases.).

To be eligible for consideration as evidence of the current violation, past actions

must form a pattern or policy of the same type of discriminatory acts. Pegram v.

Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004). Here, Pena has not demonstrated that

holiday-related teasing and taunting, and even being deprived of a poinsettia, is related to

any alleged termination five years later. Intervening between the events are the

following:

 The Bank granted her request and transferred her to the Robstown

branch—away from Beverly Moore. D.E. 21, p. 65.

 She had a long illness and failed to provide medical documentation or a

return date.

 She admits that she was never deprived of her vacation requests.

 Nothing connects the assignment of a floater to another branch or the

failure to properly maintain computer systems to any discriminatory

practice or her own termination.

Any effort to connect any alleged discrimination to the termination of Pena’s

employment is the result of speculation or improper inference.

The Court DENIES the motion to the extent it seeks dismissal of the

discriminatory termination claim on the basis of limitations. However, the Court HOLDS

that conduct outside the 300-day limitation period may not be used to support Pena’s

claims of discrimination or retaliation.

D. Prima Facie Case of Discrimination

1. Religious Discrimination

Pena’s burden to establish a prima facie case must be met by providing evidence

“that she: (1) is a member of a protected class; (2) was qualified for her position; (3) was

subject to an adverse employment action; and (4) was replaced by someone outside the

protected class,” or, in the case of disparate treatment, shows “that others similarly

situated were treated more favorably.”1 Okoye v. Univ. of Texas Houston Health Sci.

Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001) (quoting Shackelford v. Deloitte & Touche,

LLP, 190 F.3d 398, 404 (5th Cir. 1999)). Because Pena has not attempted to provide any

evidence with respect to her replacement as branch manager, this case is one for disparate

treatment. The Bank challenges the second, third, and fourth elements: Pena’s

qualifications, whether she was terminated or resigned, and her less favorable treatment.

The Bank does not contend that Pena was incapable of acting as a qualified,

competent branch bank manager. Instead, it asserts that—by her own account—her

anxiety and illnesses left her rattled and incapable of thinking straight. She admits that

she was not ready to return to work on August 3, 2017. She prefaced her ability to return

to work after that date on obtaining medical clearance. She proffered no evidence that

she had, or could get, that medical clearance. The Court agrees that Pena has not

provided evidence that she was ready and able to return to work even though she

professed to be willing to do so. Thus, she has failed in her burden to show that she was

qualified for her position.

The burden to show disparate treatment requires demonstrating that comparators

who are not in the same protected class, but are otherwise in nearly identical

circumstances, were treated more favorably.

1 Alternatively, a plaintiff may show a prima facie case of religious discrimination by establishing that she had a

bona fide religious belief that conflicted with an employment requirement, that she informed the employer of this

belief, and that she was discharged for failing to comply with the conflicting employment requirement. Weber v.

Roadway Exp., Inc., 199 F.3d 270, 273 (5th Cir. 2000). Or she could present a direct evidence claim, with

“evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” Sandstad

v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (emphasis added). Pena’s admissible evidence does not

invoke either of these methods for demonstrating a religious discrimination claim.

The employment actions being compared will be deemed to

have been taken under nearly identical circumstances when

the employees being compared held the same job or

responsibilities, shared the same supervisor or had their

employment status determined by the same person, and have

essentially comparable violation histories. And, critically, the

plaintiff's conduct that drew the adverse employment decision

must have been “nearly identical” to that of the proffered

comparator who allegedly drew dissimilar employment

decisions. If the “difference between the plaintiff’s conduct

and that of those alleged to be similarly situated accounts for

the difference in treatment received from the employer,” the

employees are not similarly situated for the purposes of an

employment discrimination analysis.

Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).

Pena named four Bank employees who she claims were able to take long medical

leaves of absence but still return to their jobs. Assuming for purposes of argument that

they were similarly situated in terms of position, responsibilities, supervisor, and

employment history, the record is still silent with respect to the triggering conduct—

whether those employees had medical documentation to support their claims, had kept

the Bank apprised of their status on a regular basis, and had identified a viable return

date. Pena’s burden of proof calls on her to develop these issues in order to demonstrate

whether the comparison between Pena and those other employees is apt. Because Pena

failed to offer evidence sufficient to establish the second and fourth elements, the Court

need not, and does not, address the issue of whether Pena was terminated or resigned.2

The Court GRANTS the motion for summary judgment and DISMISSES the religious

discrimination claim.

2 This further renders moot the question whether Pena submitted competent evidence that any request to CEO

Bobby Miller for a leave of absence extending beyond August 3, 2017, had been approved.

2. Disability Discrimination

The rubric for evaluating a disability discrimination claim under the Americans

with Disabilities Act (ADA)3 is similar to that for a religious discrimination claim. Pena

must show: (1) that she has a disability;4 (2) that she was qualified for the job; and (3)

that she was subject to an adverse employment decision on account of that disability.

E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014). As set out above, Pena

admitted that she was incapable of work and had not identified an ability to return to

work before August 3, 2017. Therefore, she was not qualified for the job.

Because her prima facie case is defeated on that element, the Court, again, does

not reach the issue of whether the Bank terminated Pena or Pena effectively resigned.

And as discussed above, when treated as a matter of disparate treatment, Pena did not

develop the evidence of whether the comparators were similarly situated. The Court

GRANTS the motion and DISMISSES the disability discrimination claim.

E. Prima Facie Case of Retaliation

1. Protection on the Basis of Religion

In the context of religion, “In order to prove a prima facie case in a retaliation

claim the employee must show: (1) that the employee engaged in activity protected by

Title VII; (2) the employer took adverse employment action against the employee; and

(3) a causal connection exists between the protected activity and the adverse employment

3 42 U.S.C. § 12101, et seq.

4 The Bank disputes whether Pena is disabled because she has failed to submit medical evidence that she has

cancer. This does not address Pena’s claim of debilitating anxiety and does not account for the ADA’s definition of

“disabled” as including being regarded as having a physical or mental impairment that substantially limits one or

more major life activities. 42 U.S.C. § 12102. Because the Court finds Pena’s prima facie case lacking on other

issues, it declines to address whether Pena was disabled as defined by the statute.

action.” Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir. 2000). An employee

engages in activity protected by Title VII by either (1) opposing any practice defined as

unlawful by Title VII or (2) making a charge, testifying, assisting, or participating in any

manner in an investigation, proceeding, or hearing under Title VII. Id. (citing 42 U.S.C.

§ 2000e–3(a)).

The Bank challenges Pena’s retaliation claim on the basis of her failure to show

that she engaged in a predicate protected activity. Pena has offered no evidence that,

prior to her separation from the Bank, she complained of any religious discrimination in

her own employment or in the Bank’s employment of others. Neither does the record

reflect any prior Title VII proceeding, much less one that she was involved in. Pena has

failed to establish a prima facie case for religious-based retaliation and the Court

GRANTS summary judgment DISMISSING that claim.

2. Protection on the Basis of Disability

Likewise, in the context of disability, “To show an unlawful retaliation, a plaintiff

must establish a prima facie case of (1) engagement in an activity protected by the ADA,

(2) an adverse employment action, and (3) a causal connection between the protected act

and the adverse action.” Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).

Assuming without deciding that Pena’s evidence satisfies her burden to show a prima

facie case, the Bank has articulated a non-retaliatory reason for its actions: Pena’s failure

to provide medical documentation, failure to timely communicate with the Bank

regarding her need for time off, failure to provide a medical excuse for the amount of

time taken, and failure to indicate a viable date by which she would return to her post.

According to the McDonnell Douglas burden-shifting framework, the burden then

returns to Pena to show that the Bank’s explanation is pretextual. The evidence supports

the Bank’s representation of Pena’s insufficient communications regarding her need for

long and continued disability leave past the exhaustion of her sick leave and annual leave

benefits. Pena claimed to have been diagnosed with cancer, thanked her bosses for being

good to her, and hoped “some day” to be able to work again. She filled out a long term

disability claim and did not express any intent to return to work until after she learned

that her office would be cleaned out. Pena has not presented any competent summary

judgment evidence to suggest that the Bank’s reading of her own conduct is pretextual

and that her alleged termination was retaliatory.

The Court GRANTS the motion and DISMISSES the claim for retaliation based

on disability.

F. Disability Accommodation

Pena brings her claim for failure to accommodate her disability pursuant to Title I

of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. A prima facie

claim for failure to accommodate requires that: “(1) the plaintiff is a ‘qualified individual

with a disability;’ (2) the disability and its consequential limitations were ‘known’ by the

covered employer; and (3) the employer failed to make ‘reasonable accommodations’ for

such known limitations.” Credeur v. La. Through Office of Attorney Gen., 860 F.3d 785,

792 (5th Cir. 2017).

As a preliminary matter, the Bank challenges Pena’s claim on the basis that Pena

never requested an accommodation.

The ADA defines the term “discriminate” to include “not

making reasonable accommodations to the known . . .

limitations of an otherwise qualified individual with a

disability.” 42 U.S.C. § 12112(b)(5)(A). [Emphasis added]

The legislative history emphasizes that the duty to

accommodate is triggered by a request from an employee.

H.R.Rep. No. 485, 101st Cong., 2d Sess. pt. 2, at 65 (1990);

S.Rep. No. 116, 101st Cong., 1st Sess., at 34 (1989). EEOC

Regulations implementing the equal employment provisions

of the ADA provide that, in general, “[i]t is the responsibility

of the individual with a disability to inform the employer that

an accommodation is needed.” 29 C.F.R. § 1630.9 App.

(1992). See also EEOC Technical Assistance Manual on the

Employment Provisions (Title I) of the ADA § 3.6 (January

1992). Indeed, the legislative history goes on to state that: “In

the absence of a request, it would be inappropriate to provide

an accommodation . . . .” H.R.Rep. No. 485, 101st Cong., 2d

Sess., pt. 2, at 65 (1990); S.Rep. No. 116, 101st Cong., 1st

Sess., at 34 (1989).

Tips v. Regents of Tex. Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex. 1996). The only

request that Pena has demonstrated that she made prior to her separation was to remain

off work indefinitely because her mental faculties were insufficient to perform her job

because she was facing any number of chronic conditions or illnesses.

This request is insufficient both because indefinite time off is not a proper

accommodation and because the request constitutes an admission that whatever disability

she claimed rendered her unqualified to do the work necessary.

As an initial matter, there is general consensus among courts,

including ours, that regular work-site attendance is an

essential function of most jobs. See, e.g., Hypes on Behalf of

Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th Cir.

1998) (per curiam) (collecting cases); E.E.O.C. v. Ford Motor

Co., 782 F.3d 753, 761 (6th Cir. 2015) (en banc) (“[The]

general rule [is] that, with few exceptions, ‘an employee who

does not come to work cannot perform any of his job

functions, essential or otherwise.’ ” (quoting EEOC v. Yellow

Freight Sys., Inc., 253 F.3d 943, 948 (7th Cir. 2001) (en

banc))). This is especially true when the position is interactive

and involves a significant degree of teamwork. Hypes, 134

F.3d at 727 (“[T]eam work under supervision generally

cannot be performed at home without a substantial reduction

in the quality of the employee's performance.” (alteration in

original) (quoting Vande Zande v. State of Wis. Dept. of

Admin., 44 F.3d 538, 544 (7th Cir. 1995))); accord Ford

Motor Co., 782 F.3d at 761 (“[M]ost jobs require the kind of

teamwork, personal interaction, and supervision that simply

cannot be had in a home office situation.” (quoting Rauen v.

U.S. Tobacco Mfg. L.P., 319 F.3d 891, 896 (7th Cir. 2003))).

Credeur, 860 F.3d at 793.

As a branch manager, Pena’s job included supervision of other employees and

filling in different positions, such as teller, when there were insufficient hands on deck.

D.E. 18-1, p. 70. “An essential element of most jobs is an ability to appear for work and

to complete assigned tasks within a reasonable period of time.” Prejean v. Cypress-

Fairbanks Indep. Sch. Dist., 97 F. App’x 480, 483 (5th Cir. 2004). “Nothing in the text

of the reasonable accommodation provision requires an employer to wait an indefinite

period for an accommodation to achieve its intended effect.” Rogers v. Int’l Marine

Terminals, Inc., 87 F.3d 755, 759–60 (5th Cir. 1996) (quoting Myers v. Hose, 50 F.3d

278, 283 (4th Cir. 1995)). An employer cannot be expected to keep a position open after

exhaustion of all accrued paid leave with no expected return date. Reed v. Petroleum

Helicopters, Inc., 218 F.3d 477, 481 (5th Cir. 2000).

Because Pena has demonstrated that she is not a qualified individual, she did not

properly request an accommodation, and indefinite leave is not a reasonable

accommodation, the Court GRANTS the motion for summary judgment and DISMISSES

Pena’s claim for failure to accommodate her disability.

CONCLUSION

For the reasons set out above, the Court GRANTS the Bank’s motion for summary

judgment (D.E. 18) and DISMISSES this action WITH PREJUDICE in its entirety.

ORDERED this 3rd day of September, 2019.

NE bh GONZALES RAMOS

UNITED STATES DISTRICT JUDGE

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