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Montano v. Donahoe

United States District Court, D. New Mexico

March 22, 2017

PATRICK R. DONAHOE, Postmaster General, Defendant.


         THIS MATTER comes before the Court upon Defendant's Second Motion for Summary Judgment on Plaintiff's Counts I and III, filed January 15, 2017 (Doc. 130). Having reviewed the parties' briefs and applicable law, the Court finds that Defendant's motion is well-taken and is therefore granted; further, the Court declines to exercise supplemental jurisdiction over Counts V and IV.


         This is an employment discrimination case in which Plaintiff alleges discrimination and retaliation by her supervisors, Michael Flores (“Flores”) and Humberto Trujillo (“Trujillo”). The Complaint alleges hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. as follows:

Count I: Title VII sexual harassment against Michael Flores;
Count II: Title VII retaliation against Michael Flores;
Count III: Title VII sexual harassment against Humberto Trujillo;
Count IV: Title VII retaliation against Humberto Trujillo;
Count V: Violation of USPS Labor Manual Rule §666.22 (Discrimination and Retaliation); and
Count VI: Violation of USPS employee labor manual §666.22 (Whistleblower Protection Retaliation).

         The Court has become quite familiar with the facts in this case. Defendant's first motion seeking summary judgment on Counts I and III was denied, even though the facts stacked up in Defendant's favor. However, the Court could not grant Defendant's motion because of defense counsel's failure to follow the requirements of Rule 56 of the Federal Rules of Civil Procedure which requires a defendant to present to the Court the undisputed material facts in a case on which summary judgment is sought. In the Memorandum Opinion and Order denying summary judgment, the Court noted that Defendant had “painted itself into a corner” by “avoiding the substantive facts of a prima facie claim in its presentation of ‘undisputed' facts” and in doing so, “effectively precluded the Court from granting it summary judgment.” Doc. 120 at 4. Defense counsel eventually presented the salient undisputed facts in its reply instead of in the motion where they properly belonged, but it was too late:

Had Defendant presented this evidence in its motion instead of the reply, Defendant would have a good case for summary judgment on Plaintiff's hostile environment claim. However, the best the Court can do here is note the substantive evidence presented by Defendant rebutting Plaintiff's claim of hostile environment, but ultimately the Court must deny summary judgment because Defendant, as the moving party, failed in its motion for summary judgment to make a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to summary judgment as a matter of law.

Doc. 120 at 25. Defendant fared much better on summary judgment regarding Counts II and IV alleging retaliation under Title VII. The Court found that Plaintiff failed to submit any evidence from which a reasonable fact finder could conclude that the reasons for Defendant's actions were pretextual for retaliatory motive. Doc. 121.

         I. Allegations in Complaint

         The Complaint alleges that Plaintiff began working for the United States Postal Service (“USPS”) in June 1985. From 2001-2010, Plaintiff served as one of the three Managers of Postal Operations (“MPOO”) within the New Mexico District, overseeing Postmasters around New Mexico. In 2010, the New Mexico District was consolidated into the Arizona District and Ms. Montano's position was eliminated. She was not selected for an MPOO position in the newly consolidated District. In July 2011, Plaintiff was hired as the Postmaster of Santa Fe, New Mexico and retained her level 25 pay for a period of two years while serving in the level 24 Santa Fe Postmaster position. Following the 2010 consolidation, Plaintiff reported to MPOO Mike Flores.

         In this lawsuit, Plaintiff asserts that Flores discriminated against her by harassing her on the basis of her gender (Count I). On January 30, 2012, Plaintiff initiated an EEO charge against Michael Flores alleging race, color, sex discrimination and harassment stemming from Flores' verbal threats and repeated and unfounded investigative “interviews.” The Complaint states that Plaintiff rescinded that charge when District Manager John DiPeri advised Plaintiff that he had negotiated and discussed the issues with Flores, and that Flores would cooperate with Plaintiff by working on the relationship to achieve better communication. Plaintiff also alleges that Trujillo also harassed and discriminated against her on the basis of her gender (Count III).

         Following additional discovery pursuant to Fed.R.Civ.P.56(d) (see Doc. 101), Defendant now makes a second attempt at securing dismissal of Counts I and III through summary judgment. Defendant contends that the alleged conduct was not sufficiently severe or pervasive to support Plaintiff's claims for sexual harassment or hostile work environment.

         II. Undisputed Facts[1]

         Despite giving defense counsel a clear signal regarding the deficiencies in the initial summary judgment motion, the Court sees similar problems on this second round. In its Statement of Undisputed Facts, Defendant cites almost entirely to facts taken from Plaintiff's Statement of Additional Facts in her response to Defendant's initial summary judgment motion (Doc. 112). A defendant seeking summary judgment is required to offer facts which are undisputed and which entitle the defendant to summary judgment. See Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993) (“. . . the moving party bears the burden of demonstrating the absence of a genuine issue of material fact”). The Court cannot imagine how citing to Plaintiff's facts bolsters Defendant's position, and can only conclude that defense counsel still does not grasp either the purpose or procedure behind Rule 56. Thus, the facts set forth below are essentially facts alleged by Plaintiff, and not Defendant. Fortunately, Defendant does eventually present the salient facts within its discussion instead of including them in its “Statement of Undisputed Facts” section where they belong, which leaves it to the Court to round up these facts in order to make a determination of the relevant issues. In mentioning these shortcomings, the Court hopes that defense counsel is moved to seek out ways to refresh her federal motions practice skills relative to Rule 56.

         Facts Concerning Mike Flores

          Following consolidation by the United States Postal Service of the New Mexico District into the Arizona District in 2011, Plaintiff reported to MPOO Flores. Between October 2012 and May 2013, Flores imposed three (3) investigative interviews, also known as “fact-finding” interviews, on Plaintiff within a five-week period. A fact-finding interview includes a written notice of alleged deficiencies, the opportunity to have a representative present, and the potential for discipline. Plaintiff considered the imposition of these interviews as “harassing.”

         On November 2, 2012, Flores requested a meeting with Plaintiff. During the meeting, Flores stated that he “was caught off guard with your [Plaintiff's] behavior today. . .” and that he was “deeply concerned over what seems to be reluctance on your part to accept my support for your success.” Plaintiff responded that Flores's actions were demeaning and adverse, that he had singled her out, and that he had “no respect for me or anything that I contribute to Santa Fe.” On November 5, 2012, Flores conducted a “business review” of Ms. Montano in the presence of a lower level manager, which Plaintiff believed to be an unusual practice. Plaintiff claims that Flores told her that because she had brought an EEOC charge against him, he wanted to make sure he “wrote down what we say” or “what [his] expectations are.” Pltff's Add'l Fact 2.

         On Sunday, December 16, 2012, Flores called Plaintiff at her home, yelling, told her that if she had any early starts the next day, she would be fired. That same month, Plaintiff applied for a position in Coppell, Texas. Mr. Flores was aware of her application but he had no communications with anyone regarding Plaintiff's application, nor was he asked for a recommendation. Ex. 3 at 91:11-25. Plaintiff was not interviewed or selected for the position.

         On January 28, 2013, Flores accused Plaintiff or not managing her station. That same month, he also failed to respond to Plaintiff for several weeks regarding her request for leave to attend a work-related Legislative Forum.

         On February 8, 2013, Flores sent Plaintiff home to obtain medical release documentation and told her she had to be “on sick leave or some other type of leave until” she obtained such documentation. He ordered Plaintiff to “go home and not come back” until she obtained another medical release because the Health Unit Nurse Halina Gronowski “needs additional medical.” Plaintiff claimed that Flores was laughing at her during this phone call. When Plaintiff returned to work from sick leave on January 15, 2013 (24 days before February 8, 2013), she already had an FMLA release. Plaintiff asked Flores if she could continue working and produce the additional medical document on February 15 when she had a doctor's appointment, but he denied her request.

         A team of lower level postal officials called the “dream team, ” arrived to evaluate Plaintiff's post office in Santa Fe (the Coronado Station) on February 9, 2013 when Flores ordered Plaintiff to leave work to obtain additional medical documentation. The “dream team” consisted of lower level postmasters reporting to Flores who were supposed to conduct route audits.

         In August 2012, Plaintiff requested Human Resources (“HR”) intervention. Arizona District Manager John DiPeri told Plaintiff through an HR Manager to “get a book and learn how to deal with [her] manager.”

         The USPS Policy of Workplace Harassment requires any manager who receives a complaint to “see that a prompt and thorough investigation is conducted.”

         As part of the Initial Management Inquiry Process (“IMIP”), which is also known as the “Harassment Interview, ” Plaintiff was interviewed in March 2013. The HR interviewer, Regina Beckhum, an African-American female, found that “[b]ased upon the initial inquiry, the allegations raised by Ms. Montano are subjective and appear to be related to organizational issues. A hostile working environment has not been demonstrated.”

         Flores called Plaintiff by unwanted nicknames, including “Yas” and “Yazzie” and at least on one occasion told Plaintiff she should “take a Yas pill.” Plaintiff also claims that Flores mimicked her voice while not in her presence “. . . chang[ing] his voice to a very highpitched victim-type voice.”

         Plaintiff is not claiming damages based on any actions of Defendant and Michael Flores based on sex discrimination or sex harassment prior to February 13, 2012.

         Facts Concerning Humberto Trujillo

         While Flores was serving a detail in Long Beach, California, Trujillo temporarily served as the acting MPOO. He served as Plaintiff's supervisor from March 2013 until July 6, 2013 when Plaintiff took sick leave.

         On May 29, 2013, Trujillo sent Plaintiff an e-mail with the mandate that she should have a minimum of 10 Findings of Fact and 5 corrective action packages by the close of business that Friday. On June 6, 2013, while Plaintiff was on sick leave, Trujillo gave Plaintiff a Letter of Warning (“LOW”) evaluation due to a “suspense”[2] that had not been completed the prior month that Plaintiff believed to be completed.

         In July, 2013, during Plaintiff's FMLA leave, Trujillo ordered that Plaintiff turn in her USPS Blackberry and laptop.

         In an e-mail to Plaintiff and Erik Setter, Plaintiff's manager at the Coronado Station, Trujillo called that station the “worst in the district, ” stating that she should be “embarrassed” and that she was the “eyesore of the district.” On March 28, 2013, District Manager John DiPeri e-mailed Plaintiff and Mr. Setter, calling her “disappointing and disgraceful” and asked “How long is it going to take for you to follow my instructions? Flores was copied on this e-mail, and Flores responded saying he would “follow up” on the e-mail.

         On June 10, 2013, Trujillo ordered Plaintiff to the district office for a fact-finding for failure to follow instructions, and told Plaintiff he would “not tolerate the lack of respect for my instructions.” On July 1, 2013, Trujillo e-mailed District Manager DiPeri stating that he had “concerns and frustrations” regarding Plaintiff.

         Plaintiff's additional facts add a bit more detail to those set out by Defendant (because after all, Defendant relied on Plaintiff's facts in setting them out), but many of these facts are either immaterial, are self-serving, or constitute legal conclusions. See Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (nonmovant's conclusory and self-serving statements, without other supporting evidence, are insufficient for the purpose of surviving summary judgment). For example, Plaintiff's Additional Fact 1 states that Flores knew about the EEO charge she brought against him. Defendant has never disputed that Plaintiff brought this charge, nor is it relevant to Plaintiff's hostile environment claims in Counts I and III.[3] In Additional Fact 3, Plaintiff states that Flores was “relentless” in disciplining her, humiliating her, and in trying to “ruin her reputation”; and in Additional Fact 5, Plaintiff states that Trujillo “repeatedly threatened to fire” her. However, aside from these general accusations, there are no specific dates or specific instances which give this statement any context sufficient to consider for summary judgment purposes. Similarly, in Additional Fact 6, Plaintiff states that “[e]very time Flores or Trujillo demanded Plaintiff attend an investigative interview while she was on sick leave, it was another instance of them harassing her.” Legal conclusions are not facts, and are also insufficient for a nonmovant to avoid summary judgment. See Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007) (nonmovant must “set forth specific facts from which a rational trier of fact could find for the nonmovant).

         Plaintiff offers a few facts which are material to her hostile work environment claims, although they are cumulative to those presented by Defendant. For example, Plaintiff states that Flores had a lower level manager witness her “business review” in order to take notes. Add'l Fact 2. In Additional Facts 7-9, Plaintiff gives examples of allegedly harassing conduct: that Flores told other employees that he wanted Plaintiff out of the Postal Service; and that he was “condescending” to her and “belittled her.” Plaintiff claims that Flores was noted to treat female employees in a belittling and degrading manner and that he commented on the work accomplishments of men but discrediting accomplishments by females. Plaintiff also describes Flores as “abusive” and “hostile” toward her in meetings.

         III. Legal Standard

         Summary judgment is appropriate “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 fact is material if it could have an effect on the outcome of the suit. Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). A dispute over a material fact is genuine if the evidence presented could allow a rational jury to find in favor of the nonmoving party. EEOC v. Horizon/CMS Heathcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). A court is to view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). A court cannot weigh the evidence and determine the truth of the matter, but instead determines whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). The moving party “bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007). Only disputes of material fact “preclude the entry of summary judgment.” Elliott Indus. Ltd. P'ship v. BP Am. Prod. Co., 407 F.3d 1091, 1111 (10th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the moving party meets its burden, “the burden then shifts to the nonmovant to set forth specific facts from which a rational trier of fact could find for the nonmovant.” Herrera, 506 F.3d at 1309 (citation and internal quotation marks omitted).


         Title VII's prohibition against sex discrimination includes a ban on sexual harassment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986). Discriminatory harassment, however, is actionable only if it is pervasive or extreme, amounting to a change in the terms and conditions of employment and creating a hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 778 (1998); see also, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, (1998); Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001). In order for a hostile environment claim to survive summary judgment, a plaintiff must show that a rational jury could find that the workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Penry v. Fed. Home Loan of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998) (quotation omitted).

         To evaluate whether a working environment is sufficiently hostile or abusive, a court must examine all the circumstances, including: (1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's work performance. Harris v. Forklift Sys., Inc. 510 U.S. 17, 23 (1993). In addition, the environment must be both subjectively and objectively hostile or abusive. Id.; see also Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998). But severity and pervasiveness are not enough. The “plaintiff must produce evidence that she was the object of harassment because of her gender.” Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir.1998). (emphasis added). [from original]. In short, a hostile environment claim requires a showing of severe and pervasive harassment that is based on gender.

         Plaintiff sums up the relevant conduct which she alleges forms the basis for a hostile work environment, as listed in her EEO charge:

(1) Between November 21, 2012 and January 28, 2013, Plaintiff was subjected to harassment. She felt belittled, disrespected, yelled at, and her manager made ...

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