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Montano v. Brennan

United States District Court, D. New Mexico

March 5, 2018

YASMIN MONTANO, Plaintiff,
v.
MEGAN BRENNAN, POSTMASTER GENERAL, Defendant.

          MEMORANDUM OPINION AND ORDER

         This 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 herein.

         PLAINTIFF'S COMPLAINT AND PROCEDURAL HISTORY

         This is 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 II.”

         In 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.

         In her 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 prohibition).

         SUMMARY JUDGMENT STANDARD

         Summary 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 (1986)).

         The 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 (1986))).

         The 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. 1991).

         UNDISPUTED MATERIAL FACTS[1]

         1. Plaintiff Yasmin Montano began working for the United States Postal Service (USPS) in June 1985. Montano II Complaint (Doc. 1), ¶ 8.

         2. From 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.

         3. In 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.

         4. On 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.

         5. In 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 Complaint, ¶17.

         6. On March 12, 2012, Montano was diagnosed with work related stress and was later diagnosed with severe anxiety and depression. Montano II Complaint, ¶18.

         7. On June 8, 2013, Montano went on FMLA leave due to severe stress and anxiety caused by the work environment. Montano II Complaint, ¶ 26.

         8. 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.

         9. On 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.

         10. Montano did not attend the fact finding on June 3, 2015.

         11. On June 23, 2015, Montano requested an appointment with a Dispute Resolution Specialist. Information for ...


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