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Tastan v. Los Alamos National Security LLC

United States District Court, D. New Mexico

May 17, 2019



         From 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”), [1] 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[2] 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.

         The 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.


         The 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.

         The 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).

         a. 2008 Seizure

         In 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.

         b. Ms. Tastan's History of Reassignment or Schedule Change Requests

         In 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. Id. 214:1-2.

         According 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.

         Sometime 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.

         Both 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.

         In 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 (May 31, 2016), Def.'s Ex. G, ECF No. 57-7.[3] 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.

         In 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.

         c. Human Resources Investigation of Ms. Tastan and Termination Decision

         In 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.

         According 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.[4] 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.

         Based 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.

         A Case 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 ¶ 10.[5]


         LANS 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, ”[6] 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.

         As for 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 her disability.

         Aside 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.

         Finally, 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.[7]

         In 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 ...

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