United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
2003 to 2017, Ms. Audrian Tastan worked as an administrative
specialist at Los Alamos National Laboratory. She brought
this action against Los Alamos National Security LLC.
(“LANS”),  claiming that it discriminated and
retaliated against her based on her disability in violation
of the Americans with Disability Act (“ADA”), 42
U.S.C. §§ 12101 et seq., by failing to
reasonably accommodate her epilepsy disorder, retaliating
against her for seeking reasonable accommodations, and then
firing her because of her disability. LANS moved under
Fed.R.Civ.P. 12(c) to dismiss allegations in Ms. Tastan's
Amended Complaint (“Am. Compl., ” ECF No. 4)
concerning a hostile work environment. See
Def.'s 12(c) Mot., (“MTD”), ECF No. 33. LANS
then moved for summary judgment. See Def.'s Mot.
for Summ. J., (“MSJ”), ECF No. 57. Invoking the
familiar McDonnell Douglas burden-shifting framework,
LANS argues in its motion for summary judgment that Ms.
Tastan cannot establish a prima facie case of either
discrimination or retaliation under the ADA, and that even if
she could, LANS legitimately terminated her for allegedly
using false pretenses to obtain confidential security
clearance information about her brother.
Court awards summary judgment to LANS. LANS proffered a
nondiscriminatory, non-retaliatory reason for Ms.
Tastan's termination and Ms. Tastan failed to show that
reason was pretextual.
following material facts are stipulated to: Ms. Tastan was
diagnosed with epilepsy as a child and has experienced
seizures at times during her childhood and adulthood.
Def.'s MSJ, Undisputed Fact (“UF”) ¶ 15.
On February 21, 2017, Ms. Tastan resigned from LANS in lieu
of termination. UF ¶ 1. At the time of her resignation,
Ms. Tastan was employed as an administrative assistant in
LANS' SAFE-IP (Information Protection) group. UF ¶
2. Due to the nature of the work and the classified
information they have access to daily, employees in LANS'
SAFE-IP group are held to the highest standards of honesty
and truthfulness. UF ¶ 3. While employed in LANS'
SAFE-IP group, Tastan was required to hold, and did hold, a
“Q” level security clearance from the Department
of Energy. UF ¶ 4.
following additional disputed material facts, construed in
the light most favorable to Ms. Tastan as the nonmoving
party, show the following. See DePaula v. Easter Seals El
Mirador, 859 F.3d 957, 961 (10th Cir. 2017).
2008, Ms. Tastan experienced a seizure while working.
Deposition of Audrian Gásca Tastan 116:25, Pl.'s
Resp. Br., Ex. A, ECF No. 61-1 (“Tastan Dep.”).
According to Ms. Tastan, in response to her seizure LANS
placed her on a “fitness for duty under the false
presumption that [she] was unable to work because [she] had
[three] seizures.” Affidavit of Audrian Tastan ¶
9, ECF No. 61-1 (“Tastan Aff.”). In response,
LANS' Occupational Medical Division placed various
temporary work restrictions on Ms. Tastan's employment,
including restricting her access to classified material and
prohibiting her from driving while on official business.
See Memorandum re: Clarification on Escort Status,
Pl's Ex. I, ECF No. 61-1.
Ms. Tastan's History of Reassignment or Schedule Change
2014, shortly after Ms. Tastan had been assigned to work in
the Weapons Division at the Laboratory, she had a seizure at
work. Tastan Dep. 68:15-17. In April 2014, Ms. Tastan
reported to Ms. Patty Blount, who was either a staff
operations manager or chief-of-staff, of “difficulty in
personalities” with Ms. Tastan's direct manager,
Ms. Kelly Martinez, who caused her undue stress, hardship,
and created a hostile environment, prompting Ms. Tastan to
request a reassignment to a different unit within the Weapons
Division with a less intense workload. Id. 68:15-22;
Tastan Dep. 242:19-25 - 243:1-4, ECF No. 57-1. Another
employee, Mr. Jay Carnes, denied Ms. Tastan's request.
to Ms. Tastan's affidavit, in December 2014, she suffered
another seizure. Tastan Aff. ¶ 10. In February 2015, Ms.
Tastan requested to be reassigned, informing her managers
that she was working in a stressful and hostile work
environment. Id. In March 2015, Ms. Tastan suffered
another seizure at work. Id. She told her manager,
Manny Garcia, that the group she was working in was affecting
her health, and requested a reassignment. Id.
in 2015, Ms. Tastan requested a schedule change so that she
could take her youngest child to school later in the morning.
UF ¶ 19. At first her managers did not approve her
request, prompting Ms. Tastan to complain with LANS'
Ombuds Office, which eventually sided with Ms. Tastan.
Tastan. Dep. 142:12-16; 144:4-5. After the Ombuds
Office's decision, Ms. Elaine Rodriguez, Acting Staff
Operations Manager, approved Ms. Tastan's request to
alter her schedule from a 40-hour week to a 34-hour week, but
required Ms. Tastan to sign a memorandum of understanding
(“MOU”). See E-mail from Elaine
Rodriquez to Audrey Tastan (Sept. 15, 2015); MOU, Def.'s
Ex. D, ECF No. 57-4 at 1-2.
parties agree that this schedule change request was not based
on accommodating Ms. Tastan's epilepsy. UF ¶ 20.
According to Ms. Tastan, however, two other secretaries with
equivalent jobs requested deviated work schedules but were
not required to sign memoranda. Tastan Dep. 150:3-14. Making
her sign the MOU was a sign that she was being treated
unfairly for reporting to the Ombuds Office and
“because of the fact that [she] was getting sick,
” and that her disability was “acting up.”
Id. 144:11-18. Believing that her schedule change
request generated tension and animosity between her and her
mangers, Ms. Tastan went back to her regular schedule after
only two-weeks of being on the abbreviated schedule. Tastan
Dep. 159:1-7; 249:11-16. Moreover, Ms. Tastan testified that
shortly after she made her report to the Ombuds Office,
managers gave Ms. Tastan a bad performance review.
Id. 76:20-25 - 77:1-3. In one performance review,
which is not in the record but was discussed by the parties
at deposition, Ms. Tastan indicated that she asked Ms.
Rodriquez to provide specific examples of the negative
comments and that Ms. Rodriquez did not provide any such
examples. Id. 180:13-25 -181:1-6.
April 2016, Ms. Tastan suffered another seizure at work.
Tastan Aff. ¶ 10. That same day, Ms. Tastan told her
supervisor's supervisor, Ms. Elizabeth Hogan, that she
needed to be reassigned to a different department.
Id. By May 2016, Ms. Tastan was actively looking for
a job reassignment within LANS. For instance, she sent an
email to Ms. Hogan that she wished to be reassigned from the
Weapons Division because she could not “deal with the
poor management personalities and the stressful work
environment.” Email from Audrey Tastan to Elizabeth
Hogan (date not imprinted), Def.'s Ex. F., ECF No. 57-6;
Tastan Dep. 221:14-20. By the end of May 2016, LANS approved
Ms. Tastan's assignment from the Weapons Division to the
SAFE-IP group. Email from Audrey Tastan to
firstname.lastname@example.org (May 31, 2016), Def.'s Ex. G, ECF
No. 57-7. Despite being reassigned, Ms. Rodriguez
later ignored Ms. Tastan's request to secure office space
for a SAFE-IP employee, and one day Ms. Rodriquez asked Ms.
Tastan if Ms. Tastan had a problem with Rodriquez. Tastan
Dep. 73:21-25 - 74:1-16.
November 2016 Ms. Tastan says she suffered another seizure,
although she presented no evidence that LANS was aware of
that seizure or that she requested an accommodation based on
that seizure. Id. 10:2-4.
Human Resources Investigation of Ms. Tastan and Termination
December 2016, about six or seven months after Ms. Tastan
switched to the SAFE-IP group, Mr. David Rudolph, a Human
Resources-Employee Relations (“HR”) investigator,
opened a fact-finding investigation concerning allegations
that Ms. Tastan used false pretenses to obtain security
clearance about her brother, Jacob Gasca. Declaration of
David Rudolph, ECF No. 57-3 at 1 ¶¶ 1-5
(“Rudolph Decl.”); Mr. Rudolph's Report, ECF
No. 57-3 at 2 (“Rudolph Report”). Mr.
Rudolph's investigation included multiple witness
interviews and allowed Ms. Tastan to provide her account of
events. UF ¶ 8.
to Mr. Rudolph's report, on December 8, 2016, Ms. Tastan
went to LANS' Clearance Processing office and asked two
employees, Ms. Christine Unzueta and Ms. Lecole Trujillo, why
Jacob Gasca's security clearance had been taken away
without disclosing that Mr. Gasca was her brother. Rudolph
Report at 2. Ms. Tastan admitted to Mr. Rudolph and
during a deposition that she did not disclose that Mr. Gasca
was her brother. Id. at 3; Tastan Dep. 30:9-12. Mr.
Gasca was a contract worker who lost his job with LANS after
his security clearance was terminated. Rudolph Report at 9.
Because Ms. Tastan did not want “there to be an issue
with  asking about his clearance, ” she told Ms.
Trujillo and Ms. Unzueta that Gasca was a contractor. Tastan
Dep. 30:2-3; 18. And since Mr. Gasca technically was a
contract worker, Ms. Tastan testified that she did not
believe she was hiding any information concerning Mr. Gasca
or being deceitful, so she “just didn't go into
detail and provide who he was and what [her] relation to him
was.” Id. 30:15-20. Moreover, LANS has no
policy against asking about another person's security
clearance. Tastan Aff. ¶ 5.
on various witnesses' statements, including Ms.
Tastan's, HR concluded that Ms. Tastan “engaged in
dishonest and deceptive behavior” and misrepresented
her role and reason for asking for Mr. Gasca's security
clearance information. Rudolph Report at 3. HR credited Ms.
Unzueta's and Ms. Trujillo's rendering of events over
that of Ms. Tastan's. Id. After considering the
following five aggravating factors - (i) Ms. Tastan's
position as an Administartive Assistant in the SAFE-IP; (ii)
her security clearance level; (iii) the finding of dishonest
and deceptive behavior; (iv) the nature of the information
she has access to as part of her job; (v) and the fact that
she received a written counseling in 2008 for dishonest
behavior - HR determined that the terminating Ms. Tastan for
cause was in order. Id. at 4. Mr. Rudolph stated in
his sworn declaration that he had no knowledge of Ms.
Tastan's health conditions when he conducted his
investigation. Rudolph Decl. ¶ 5.
Review Board (“CRB”) reviewed Mr. Rudolph's
report and also recommended discipline. LANS' Letter of
Acceptance of Resignation, Def.'s Ex. B, ECF No. 57-2 at
3. David Telles, Division Leader for the SAFE Division where
the SAFE-IP group is housed, accepted Ms. Tastan's
resignation in lieu of termination based on Mr. Rudolph's
report and the CRB's recommendation. Declaration of David
Telles, ECF No. 57-2 ¶¶ 2, 3, 7, 9 (“Telles
Decl.”). Like Mr. Rudolph, Mr. Telles stated in his
declaration that when he terminated Ms. Tastan, he knew of no
health conditions and that his decision was based solely on
the HR investigation. Id. at ¶
first argues in its Rule 12(c) motion that Ms. Tastan's
allegations in her amended complaint concerning a
“hostile work environment” exceed the scope of
the allegations raised in her Equal Employment Opportunity
Commission (“EEOC”) charge that she filed on
March 28, 2017, about a month after her termination from
LANS. Because LANS believes that “exhaustion of
remedies is a jurisdictional perquisite to filing a suit
under the ADA, ” Jones v. U.P.S., Inc., 502 F.3d
1176, 1183 (10th Cir. 2007), LANS contends that the Court
lacks subject matter jurisdiction over Ms. Tastan's
claims concerning a hostile work environment. LANS
additionally contends that Ms. Tastan's allegations that
her stressful work environment caused her more seizures is a
type of injury exclusively covered by New Mexico's
Worker's Compensation Act, N.M. Stat. Ann. §§
52-1-1 et seq.
its motion for summary judgment, LANS argues that Ms. Tastan
cannot establish a prima facie case of discrimination. First,
LANS contends that without expert medical testimony, there is
insufficient evidence that Ms. Tastan suffered from a
disability protected by the ADA. LANS does not dispute that
Ms. Tastan has epilepsy. Rather, LANS maintains that a mere
diagnosis of epilepsy and history of seizures in and of
themselves establish, as a matter of law, that Ms. Tastan was
substantially impaired in major life activities. LANS
therefore argues that Ms. Tastan is not covered by ADA
because she failed to present evidence that she has an ADA
protected disability. LANS additionally argues that Ms.
Tastan is unqualified, with or without a reasonable
accommodation, to perform the essential functions of the job
of administrative assistant. Next, LANS argues that even if
Ms. Tastan was disabled, no reasonable factfinder could
conclude that LANS terminated her based on her disability
because HR investigators were unaware of her epilepsy; her
November 2016 seizure was unconnected to LANS'
investigation and eventual termination of Ms. Tastan in
February 2017; and her requests for a deviated work schedule
and reassignment from the Weapons Division were not based on
from her discrimination claim, LANS likewise contends that
Ms. Tastan cannot establish a prima facie case for
retaliation under the ADA because no reasonable factfinder
could conclude that Ms. Tastan asked LANS for a special
accommodation based on her disability or that any purported
protected activity was causally linked to her termination,
both of which are necessary elements to establish a prima
facie case of ADA retaliation.
LANS argues that, even if Ms. Tastan could establish a prima
facie case for either discrimination or retaliation, LANS
proffered a legitimate, nondiscriminatory reason for Ms.
Tastan's firing - namely, Ms. Tastan allegedly used false
pretenses to obtain security clearance information about her
brother - and that Ms. Tastan failed to carry her burden of
production to show that LANS' proffered nondiscriminatory
reason is pretextual.
analyzing a motion for summary judgment, the Court views the
evidentiary record in the light most favorable to Ms. Tastan
and draws reasonable inferences in her favor. See
DePaula, 859 F.3d at 968. Summary judgment is warranted
“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). In
analyzing a motion for judgment on the pleadings under Rule
12(c), the Court applies the same standard of review that
applies to Rule 12(b)(6) dismissals. See Sanchez v.
UnitedStates Dep't of Energy, 870 F.3d