United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on Defendant's Motion for
Summary Judgment [Doc. 18], in which the Defendant argues
that Plaintiff has failed to exhaust her administrative
remedies with regard to all but one act of alleged
discrimination/harassment, which Defendant contends does not
constitute an adverse employment action. The Court has
reviewed the motion, response, and reply briefs and concludes
that the motion should be granted as further explained
COMPLAINT AND PROCEDURAL HISTORY
Plaintiff Yasmin Montano's second lawsuit against the
United States Postal Service for claims arising out of her
employment. The Court will refer to her first case,
Montano v. Brennan, Civ. No. 14-634 WJ/GJF, as
“Montano I, ” and this pending case as
Montano I, Montano alleged that her employer, the Defendant,
the Postmaster General of the United States Postal Service,
through her employees, discriminated against and harassed
Montano because of her sex, and then retaliated against her
because of her EEO activity. Montano, who had been employed
by the Postal Service since 1985, asserted that on July 11,
2011, Defendant appointed her to the position of Postmaster
Santa Fe, New Mexico, and shortly thereafter appointed
Michael Flores as her supervisor as Manager of Postal
Operations (MPOO). Montano also worked under another MPOO,
Humberto Trujillo. It appears that most of Montano's
allegations of harassment, discrimination, and retaliation
centered around Flores and Trujillo. In Montano I, Montano
asserted claims against Flores and Trujillo for gender-based
discrimination and harassment, as well as retaliation. She
asserted no claims of disability discrimination or failure to
accommodate an alleged disability. Montano voluntarily
dismissed her two claims for violation of the Postal Service
employment and labor manual, and the court granted summary
judgment in favor of the Defendant on her claims for
gender-based discrimination and retaliation. Montano I, Docs.
86 and 121. That left Montano's claims for hostile work
environment. The court initially denied summary judgment on
these claims, but allowed the Defendant to file a second
motion for summary judgment. Id., Montano I, Docs.
120 and 129. In the meantime, Montano had filed the present
case, which the parties jointly moved to consolidate with
Montano I. Id., Doc. 128. The court denied the
motion to consolidate, but it granted summary judgment to
Defendant on the hostile work environment claims.
Id., Docs. 129 and 134. The court entered judgment
in favor of the Defendant. Id., Doc. 135. All of her
claims disposed of, Montano appealed, but the Tenth Circuit
affirmed the district court. Id., Docs. 136 and 141.
Complaint in this case, Montano II, Montano makes factual
allegations that largely mirror those set forth in her
complaint in Montano I. The most notable exception is her
assertion that Defendant harassed and discriminated against
her on the basis of her disability by sending her a letter
requesting that she attend a fact finding while she was on
medical leave. She alleges that on July 11, 2011, Defendant
appointed her to the position of Postmaster Santa Fe, New
Mexico, and shortly thereafter appointed Michael Flores as
her supervisor as Manager of Postal Operations. [Doc. 1]
Montano contends that her employer, the Defendant, the
Postmaster General of the United States Postal Service,
through her employees, discriminated, harassed, and
retaliated against Montano in her employment because of
Montano's disability and prior EEO activity. In Montano
II, Montano asserts claims against Defendant for
discrimination based on disability. She alleges violations of
Section 504 of the Rehabilitation Act of 1973 (Count I-
discrimination and failure to accommodate, Count
V-retaliation) and the Americans With Disabilities Act of
1990 (Count II-discrimination and failure to accommodate,
Count III-disability harassment, and Count IV-medical inquiry
judgment is appropriate if the moving party demonstrates that
there is “no genuine issue as to any material
fact” and that it is “entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). In applying this
standard, the court views the evidence and all reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
party moving for summary judgment has the burden to show
“the lack of a genuine issue of material fact.”
Ascend Media Prof'l Servs., LLC v. Eaton Hall
Corp., 531 F.Supp.2d 1288, 1295 (D. Kan. 2008) (citing
Spaulding v. United Transp. Union, 279 F.3d 901, 904
(10th Cir. 2002) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986))). Once the moving party meets this
initial burden, the burden then shifts to the nonmovant to
“set forth specific facts showing that there is a
genuine issue for trial.” Id. (citing
Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
nonmovant may not rest on his pleadings or “rely on
ignorance of the facts, on speculation, or on suspicion and
may not escape summary judgment in the mere hope that
something will turn up at trial.” Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259
(1986)); Conaway v. Smith, 853 F.2d 789, 794 (10th
Cir. 1988). Instead, the nonmovant is required to set forth
specific facts, by referencing affidavits, deposition
transcripts, or exhibits, from which a rational trier of fact
could find for him. Fed R. Civ. P. 56(c)(1); see also Ascend
Media, 531 F.Supp.2d at 1295 (citing Adams v. Am. Guar.
& Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.
2000)). To survive summary judgment, “nonmovant's
affidavits must be based upon personal knowledge and set
forth facts that would be admissible in evidence; conclusory
and self-serving affidavits are not sufficient.”
Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.
Plaintiff Yasmin Montano began working for the United States
Postal Service (USPS) in June 1985. Montano II Complaint
(Doc. 1), ¶ 8.
2001-2010, Montano served as one of three Managers of Postal
Operations (“MPOO”) within the New Mexico
District, overseeing Postmasters around New Mexico. Montano I
Complaint (Doc. 1), ¶ 10.
2010, the New Mexico District was consolidated into the
Arizona District, and Montano's position was eliminated.
Montano was not selected for an MPOO position in the newly
consolidated District. On July 11, 2011, Defendant hired
Montano as the Postmaster of Santa Fe, New Mexico. Montano II
Complaint, ¶ 9.
July 18, 2011, Defendant appointed Michael Flores as the MPOO
25 and placed him in a supervisory position over Plaintiff.
Montano II Complaint, ¶ 10. Montano alleges that almost
immediately, Flores began to harass and discriminate against
her. Montano II Complaint, ¶ 11-16.
2012, Montano began receiving treatment with her primary care
physician, Isabel Lopez-Colberg, M.D., and a psychologist,
Dr. Anne Hammond, for complaints of extreme job stress and
anxiety arising from the work environment. Montano II
March 12, 2012, Montano was diagnosed with work related
stress and was later diagnosed with severe anxiety and
depression. Montano II Complaint, ¶18.
June 8, 2013, Montano went on FMLA leave due to severe stress
and anxiety caused by the work environment. Montano II
Complaint, ¶ 26.
Almost two years later, on May 26, 2015, Flores sent Montano
a letter ordering her to a fact finding interview to
investigate her extended absence on June 3, 2015. Montano II
Complaint, ¶ 32; Letter, Doc. 18-1.
June 2, 2015, counsel for the Defendant informed
Plaintiff's counsel that Montano was not required to
attend the fact finding interview. See E-mail, Doc. 18-2.
Montano did not attend the fact finding on June 3, 2015.
June 23, 2015, Montano requested an appointment with a
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