Malagon v. Crescent Hotels And Resorts

Brief/Memorandum in Support

N.D. Tex.December 7, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JOSE MAURICIO MALAGON, Plaintiff, vs. CRESCENT HOTELS AND RESORTS, Defendant. § § § § § § § § § § CIVIL ACTION NO. 3:16-CV-00644-D DEFENDANT’S BRIEF IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Eduardo F. Cuaderes Jr. Texas State Bar No. 05200800 Victoria Nsikak Texas State Bar No. 24077487 LITTLER MENDELSON, P.C. 2001 Ross Avenue Suite 1500, Lock Box 116 Dallas, TX 75201-2931 214.880.8100 214.880.0181 (Facsimile) jcuaderes@littler.com vnsikak@littler.com ATTORNEYS FOR DEFENDANT CRESCENT HOTELS AND RESORTS Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 1 of 12 PageID 486 TABLE OF CONTENTS Page i TABLE OF CONTENTS ................................................................................................................ i TABLE OF AUTHORITIES ......................................................................................................... ii I. INTRODUCTION ............................................................................................................. 1 II. ARGUMENTS AND AUTHORITIES.............................................................................. 3 A. Plaintiff Cannot Establish a Claim under ADA ..................................................... 3 B. Plaintiff’s Retaliation Claim Fails as a Matter of Law .......................................... 5 C. Plaintiff Cannot Allege Title VII Discrimination or Hostile Work Environment ........................................................................................................... 7 III. CONCLUSION .................................................................................................................. 8 CERTIFICATE OF SERVICE ...................................................................................................... 9 Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 2 of 12 PageID 487 TABLE OF AUTHORITIES Page ii Cases Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) .....................................................................................................................6 Byers v. Dallas Morning News, Inc., 209 F.3d 419 (5th Cir. 2000) .....................................................................................................7 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ...................................................................................................................4 Feist v. La., Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450 (5th Cir. 2013) .....................................................................................................3 Harris v. Dallas Cty. Hosp. Dist., No. 3:14-CV-3663-D, 2016 WL 2914847 (N.D. Tex. May 19, 2016) (Fitzwater, J.) .............................................................................................................................3 Johnson v. Bergland, 614 F.2d 415 (5th Cir. 1980) .....................................................................................................6 Jones v. Dallas Cty., 47 F. Supp. 3d 469 (N.D. Tex. 2014) (Fitzwater, J.) .................................................................8 Lopez v. Kempthorne, 684 F. Supp. 2d 827 (S.D. Tex. 2010) .......................................................................................6 Outley v. Luke & Associates, Inc., 840 F.3d 212 (5th Cir. 2016) .....................................................................................................6 Roache v. Cohen, No. CA 3:98-CV-2555-R, 1999 WL 423013 (N.D. Tex. June 16, 1999) (Bucheyer, C.J.) .........................................................................................................................5 Taylor v. Books A Million, Inc., 296 F.3d 376 (5th Cir. 2002) .....................................................................................................5 Statutes Americans with Disability Act (ADA), 42 U.S.C. § 12101 ................................................2, 3, 4, 5 Title VII of Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e ................................... passim Other Authorities FED. R. CIV. P. 56 .............................................................................................................................4 Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 3 of 12 PageID 488 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JOSE MAURICIO MALAGON, Plaintiff, vs. CRESCENT HOTELS AND RESORTS, Defendant. § § § § § § § § § § CIVIL ACTION NO. 3:16-CV-00644-D DEFENDANT’S BRIEF IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendant Crescent Hotels and Resorts (“Defendant” or “Crescent”) files this Response to Plaintiff’s Motion for Summary Judgment (Doc. No. 58) and would show the Court as follows: I. INTRODUCTION Crescent filed its Motion for Summary Judgment, Brief and Appendix in Support of its Motion on November 14, 2016. (Docs. 52-54). On November 16, 2016-two days past the Court’s dispositive motion deadline-Plaintiff filed what purports to be a Motion for Summary Judgment and document labeled Summary Judgment Motion Answers, which appears to be an appendix to support his Motion.1 (Docs. 58-59). For the most part, Plaintiff’s Motion for Summary Judgment reiterates and expounds upon his prior pleadings, but does little to advance his arguments for a judgment in his favor. In its Motion for Summary Judgment, Crescent briefed the arguments and allegations raised by 1 Contemporaneously with its Response Brief, Defendant is filing a Motion to Strike Plaintiff’s Summary Judgment Evidence, as the majority of Plaintiff’s purported appendix in support of his Motion contains inadmissible evidence. Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 4 of 12 PageID 489 2 Plaintiff’s Complaint. In the interest of judicial economy and to avoid duplication, Crescent adopts and fully incorporates by reference herein the facts and arguments presented in its Brief in Support of Defendant’s Motion for Summary Judgment, and the evidence contained in Defendant’s Appendix. (Docs. 53, 54). Specifically, Crescent’s Motion for Summary Judgment makes the following arguments in response to the allegations made by Plaintiff in his Complaint: 1. Plaintiff Cannot Establish a Claim under the ADA: There is no genuine dispute as to any material facts with regard to Plaintiff’s failure to accommodate claim. Although the parties dispute whether Plaintiff informed Crescent of his alleged disability prior to the date of his voluntary resignation, there is no question that Plaintiff’s request for an accommodation in the form of a schedule change that would leave the Hotel’s valet parking operations without a supervisor during times of peak business would impose an undue hardship on the business operations of Crescent. Plaintiff’s own testimony establishes that his request for a schedule change would be counter to the essential functions of his role as a supervisor and would result in reassigning another employee to perform his job. Because Plaintiff’s request would cause an undue hardship to the operations of Crescent as a matter of law, Crescent cannot be found to have violated the Americans with Disability Act (ADA) regarding its denial of Plaintiff’s request for an accommodation. There is no evidence that Crescent discriminated against Plaintiff because of his disability. Plaintiff voluntarily resigned his job at Crescent after his request for a different shift was denied, and there is no evidence he was constructively discharged. 2. Plaintiff’s Retaliation Claim Fails as a Matter Law: Plaintiff’s retaliation claim fails as a matter of law as there is no evidence that Plaintiff engaged in protected activity and no evidence that Crescent imposed an adverse employment action against Plaintiff or took action that would discourage a reasonable employee from asserting a discrimination complaint. Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 5 of 12 PageID 490 3 3. Plaintiff has failed to Exhaust Administrative Remedies for all Other Claims of Discrimination: Plaintiff’s Complaint and recent filings appear to assert undefined claims under Title VII. To the extent Plaintiff has attempted to assert claims under Title VII, those claims must fail as they are barred for Plaintiff’s failure to exhaust administrative remedies. In this response, Crescent will attempt to address the other allegations and arguments raised by the Plaintiff in his Motion for Summary Judgment; to the extent Crescent is able to decipher Plaintiff’s arguments. Crescent has demonstrated there is no genuine issue of material fact present in this case, and Crescent is entitled to dismissal of Plaintiff’s claims as a matter of law. As such, Plaintiff’s Motion for Summary Judgment should be denied. II. ARGUMENTS AND AUTHORITIES A. Plaintiff Cannot Establish a Claim under ADA The crux of Plaintiff’s allegation of disability discrimination is that he requested a schedule change based on a generalized anxiety disorder but was denied. (Doc. 58 at 2, 3, 14). Although it is disputed whether Plaintiff informed his supervisor of an alleged disability prior to his voluntarily resignation, Plaintiff’s allegations nevertheless fail to establish a failure to accommodate claim under the ADA. Specifically, Plaintiff cannot prevail on his ADA claim because he has not, and cannot, establish that the requested accommodation of a schedule change was a reasonable accommodation. To prevail on an ADA failure to accommodate claim, a plaintiff must show that: “(1) the plaintiff is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered employer; and (3) the employer failed to make reasonable accommodations for such known limitations.” Harris v. Dallas Cty. Hosp. Dist., No. 3:14-CV- 3663-D, 2016 WL 2914847, at *5 (N.D. Tex. May 19, 2016) (Fitzwater, J.) (quoting Feist v. La., Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 6 of 12 PageID 491 4 Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013)). As articulated in Crescent’s Motion for Summary Judgment, Plaintiff’s request for a schedule change was not a reasonable accommodation for three reasons: (1) the inherent nature of Plaintiff’s position as a supervisor (Ex. B-1, App. 85; Ex. C, App. 99-101); (2) the need for Plaintiff to be present during high volumes of business (Ex. B, App. 61-62 at pp. 158:15-159:4; Ex. C, App. 100.); and (3) there was no business need for a supervisor to be present during the times Plaintiff requested (Ex. B, App. 64-65 at pp. 164:21-165:5; Ex. B, App. 66 at pp. 166:3- 166:16; Ex. B, App. 82 at 232:1-10; Ex. C, App. 101). Plaintiff’s motion does not dispute any of these points or Crescent’s evidence. Rather, Plaintiff’s motion attempts to rebut Crescent’s articulation of an undue burden by simply stating (without evidence) it was “totally false” and the “hotel did not have to spend any money in [the] accommodation.” (Doc. 58 at 14-15). Plaintiff also asserts Nicolas Scuita was the supervisor in his absence, Alfonzo Ramirez wanted his job and threated him, and that he had more seniority than the morning supervisor. (Doc. 58 at 15). These bare assertions, compared to Crescent’s competent summary judgment evidence, do nothing to raise a fact issue concerning the undue burden Plaintiff’s requested accommodation would create on Crescent’s operations due to Crescent’s articulated reasons. Rather, Crescent’s summary judgment evidence, including Plaintiff’ deposition testimony, establish there is no material issue of fact concerning the undue burden of Plaintiff’s requested accommodation. Without proper evidence that his requested accommodation was reasonable, Plaintiff cannot establish a claim under the ADA for failure to accommodate. FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (holding a party seeking summary judgment bears the burden of informing the court of the basis of his motion and supporting his allegations with evidence). Because of this, Plaintiff’s Motion for Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 7 of 12 PageID 492 5 Summary Judgment on his ADA claim must be denied. B. Plaintiff’s Retaliation Claim Fails as a Matter of Law Plaintiff’s Motion for Summary Judgment states, for the first time in this lawsuit, that Plaintiff is asserting a claim for retaliation specifically under Title VII. See Doc. 58 at 5 (“Retaliation Violation Title VII”). As an initial matter, Plaintiff cannot assert a claim for retaliation under Title VII (or any claim under Title VII). To establish a claim for retaliation under Title VII, a plaintiff must first exhaust his administrative remedies before the EEOC by asserting a Title VII claim in a charge filed with the EEOC. See Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002); 42 U.S.C. § 2000e (Title VII requires that a complainant must first file a charge with the EEOC within 180 days (or 300 days when complainant has initially instituted proceedings with a state or local agency) after the alleged unlawful employment practice occurred). Here, Plaintiff did not allege a Title VII claim before the EEOC within the required time frame. Ex. B-3, App. 90. Rather, Plaintiff’s charge only checks the “disability” and “retaliation” boxes and only asserts facts relating to his failure to accommodate and retaliation claims under the ADA. Id. Indeed, Plaintiff’s charge makes no mention of a claim under Title VII. Id. For this reason, and the reasons outlined in the subsequent section of this brief, any claim under Title VII is barred for Plaintiff’s failure to exhaust administrative remedies. Although Plaintiff’s motion asserts he did not initially add a Title VII claim because he “did not know [his] rights,” lack of knowledge of the complaint process is not a justifiable excuse that warrants equitable tolling or this Court’s consideration of Plaintiff’s Title VII claims. Roache v. Cohen, No. CA 3:98-CV-2555-R, 1999 WL 423013, at *3 (N.D. Tex. June 16, 1999) (Bucheyer, C.J.) (holding a pro se plaintiff’s alleged lack of knowledge of the EEOC process is unpersuasive considering the plaintiff previously availed himself to the process). A plaintiff Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 8 of 12 PageID 493 6 must first timely exhaust administrative remedies prior to the Court reaching the merits of a Title VII discrimination claim. Johnson v. Bergland, 614 F.2d 415, 418 (5th Cir. 1980) (“if the agency does not reach the merits of the complaint because the complainant fails to comply with the administrative procedures the Court should not reach the merits either.”). For these reasons, Plaintiff’s retaliation claim should be dismissed. Even if Plaintiff could assert a claim under Title VII despite his failure to timely exhaust administrative remedies, arguendo, Plaintiff’s retaliation claim fails. To establish a prima facie case under Title VII, Plaintiff must show (1) he participated in an activity protected under the statute; (2) he suffered an adverse employment act; and (3) a causal connection exists between the protected activity and the adverse action. Outley v. Luke & Associates, Inc., 840 F.3d 212, 219 (5th Cir. 2016). Plaintiff’s motion does not establish any of these elements. Plaintiff claims the alleged retaliation started when his manager, Scotty Fulce, became manager and held Plaintiff responsible for avoiding damages to customer’s vehicles. (Doc. 58 at 5). Plaintiff also mentions he needed to “handle retaliation from Scotty Fulce and drivers.” Id. At most, Plaintiff’s retaliation claim amounts to a summary of what Plaintiff perceives as rude behavior from Scotty Fulce and his subordinate drivers. As explained in Crescent’s Motion for Summary Judgment, Plaintiff’s allegations cannot be considered retaliation as “‘[p]etty slights, minor annoyances, and simple lack of good manners’ are not actionable retaliatory conduct that would dissuade a reasonable employee from making a charge of discrimination.” Lopez v. Kempthorne, 684 F. Supp. 2d 827, 863 (S.D. Tex. 2010) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006). Plaintiff admits the threats of termination he received were either from coworkers who were not in a position to terminate him, or from his supervisor who simply reiterated the policy that Plaintiff agreed to and signed and that he needed to perform his Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 9 of 12 PageID 494 7 job. Ex. B, App. 18 at p. 32:2-5; App. 49 at p. 120:21-24. Further, Plaintiff’s claim does not meet the elements of retaliation as his motion does not demonstrate Plaintiff engaged in a protected activity, suffered an adverse employment action, or causation. Because Plaintiff cannot establish a Title VII retaliation claim, Plaintiff’s motion should be denied. C. Plaintiff Cannot Allege Title VII Discrimination or Hostile Work Environment In additional to the purported Title VII retaliation claim, Plaintiff’s Motion attempts to make allegations of harassment and discrimination under Title VII. (Doc. 58 at 3, 5-8). However, as articulated in Crescent’s Motion for Summary Judgment, Plaintiff’s claims are barred due to his failure to timely exhaust administrative remedies. As previously articulated, an individual must exhaust available administrative remedies prior to asserting a Title VII claim in federal court. Because Plaintiff did not timely exhaust a Title VII claim, such claim cannot be heard by the Court and should be dismissed. Even if Plaintiff could proceed with a claim under Title VII, Plaintiff’s motion and/or pleadings articulate no actionable claim under Title VII. To assert a claim of discrimination under Title VII, Plaintiff must establish (1) he is a member of a protected class; (2) he is qualified for the position; (3) he suffered an adverse employment action; and (4) similarly situated employees outside of the protected class were treated more favorably. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th Cir. 2000). Plaintiff’s motion and pleadings do not meet the elements of a Title VII claim for discrimination, as Plaintiff has not identified which protected characteristics form basis of his claim of discrimination (i.e. race, or national origin), articulated an adverse employment action, or identified similarly situated employees outside of his class that were treated more favorably. In considering Plaintiff’s allegations of harassment under Title VII, he similarly cannot meet the elements of a hostile work environment claim. To assert a hostile work environment Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 10 of 12 PageID 495 8 claim under Title VII, a plaintiff must prove five elements: (1) the employee belonged to a protected class; (2) the employee was subject to unwelcome harassment; (3) the harassment was based on race; (4) the harassment affected a “term, condition, or privilege” of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Jones v. Dallas Cty., 47 F. Supp. 3d 469, 483 (N.D. Tex. 2014) (Fitzwater, J.) (internal citations omitted). Plaintiff has adduced no evidence that the alleged harassment was so severe or pervasive that it adversely affected a term, condition, or privilege of employment or that any alleged harassment was based on race or a protected class. To the extent Plaintiff alleges claims under Title VII, his motion should be denied. III. CONCLUSION For the foregoing reasons and the reasons articulated in Defendant’s Motion for Summary Judgment, Defendant Crescent Hotels and Resorts respectfully request that the Court deny Plaintiff’s Motion for Summary Judgment, grant Defendant’s Motion for Summary Judgment, that Malagon take nothing, and that Defendant be awarded such other and further relief to which it is justly entitled. Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 11 of 12 PageID 496 9 Dated: December 7, 2016 Respectfully submitted, /s/ Eduardo F. Cuaderes Jr. Eduardo F. Cuaderes Jr. Texas State Bar No. 05200800 Victoria Nsikak Texas State Bar No. 24077487 LITTLER MENDELSON, P.C. 2001 Ross Avenue Suite 1500, Lock Box 116 Dallas, TX 75201-2931 214.880.8100 214.880.0181 (Facsimile) jcuaderes@littler.com vnsikak@littler.com ATTORNEYS FOR DEFENDANT CRESCENT HOTELS AND RESORTS CERTIFICATE OF SERVICE On the 7th day of December 2016, I electronically submitted the foregoing document with the Clerk of the Court for the U.S. District Court, for the Northern District of Texas, Dallas Division, using the Electronic Case Files system of the Court. I certify that I have served Plaintiff, pro se, electronically or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2). Jose Mauricio Malagon Pro se 2614 Alco Ave Dallas, TX 75211 mago1rey@yahoo.com /s/ Eduardo F. Cuaderes Jr. Eduardo F. Cuaderes Jr. Firmwide:144187573.1 080722.1004 Case 3:16-cv-00644-D Document 65 Filed 12/07/16 Page 12 of 12 PageID 497