United States District Court, D. Utah
A. Kimball District Judge
REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT (ECF No. 96)
J. FURSE UNITED STATES MAGISTRATE JUDGE
Canyons School District (“Canyons”) moves the
Court for summary judgment on pro se Plaintiff
Sonia Ordonez's remaining retaliation claim. (Def.'s
Mot. for Summ. J. (“Mot.”), ECF No. 96.) The
Court previously dismissed Ms. Ordonez's §1983, Fair
Labor Standards Act (“FLSA”), Title I and V of
the Americans with Disabilities Act (“ADA”),
Title VII gender and national origin discrimination,
conspiracy, obstruction of justice, and perjury claims. (Mem.
Decision & Order, ECF No. 77.) Canyons argues this Court
should grant its Motion because judicial estoppel bars Ms.
Ordonez's action against it, and, alternatively, Ms.
Ordonez did not file her Complaint on time, and Ms. Ordonez
cannot show a causal connection between her purported
protected activity and Canyons' materially adverse
action. (Def.'s Reply in Supp. of Its Mot. for Summ. J.
& Supp. Mem. (“Reply”) 1, 14-19, ECF No. 107;
Mot. 2-14, ECF No. 96.) Before considering whether Ms.
Ordonez filed her Complaint in a timely manner or whether Ms.
Ordonez can establish a prima facie case for retaliation, the
undersigned considers whether judicial estoppel bars Ms.
Ordonez's claims against Canyons. Having carefully
considered the parties' memoranda and the law, the
undersigned RECOMMENDS the District Judge GRANT Canyons'
Motion for Summary Judgment because judicial estoppel bars
Ms. Ordonez's claims.
Rule 56(a) of the Federal Rules of Civil Procedure,
“[t]he court shall grant summary judgment 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). Only facts “essential
to the proper disposition of a claim” qualify as
material. Crowe v. ADT Sec. Servs., Inc., 649 F.3d
1189, 1194 (10th Cir. 2011). Courts generally construe pro se
pleadings broadly. See Jenkins v. Currier, 514 F.3d
1030, 1032 (10th Cir. 2008). However, courts cannot act as
advocates for pro se litigants who must comply with the
fundamental requirements of the Federal Rules of Civil
Procedure (Rules). Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “[T]his court has repeatedly
insisted that pro se parties follow the same rules of
procedure that govern other litigants.” Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quoting
Garrett v. Selby Connor, Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005)). When applying the summary
judgment standard, the Court must “view the evidence
and draw reasonable inferences therefrom in the light most
favorable to the nonmoving party.” Ribeau v.
Katt, 681 F.3d 1190, 1194 (10th Cir. 2012) (quoting
Doe v. City of Albuquerque, 667 F.3d 1111, 1122
(10th Cir. 2012)).
FACTUAL AND PROCEDURAL HISTORY
Court considers the following facts in determining the Motion
for Summary Judgment. All facts come from the parties'
briefings and accompanying exhibits. The undersigned resolves
all disputed issues of material fact in favor of Ms. Ordonez
where Ms. Ordonez has produced evidence to support her
assertion of the facts.
employed Ms. Ordonez as an assistant custodian from November
11, 2008 through April 7, 2011. (Suarez Decl. ¶ 4, Ex.
3, ECF No. 97-3.) On October 18, 2010, Ms. Ordonez attempted
to file a charge of discrimination and retaliation with the
Equal Employment Opportunity Commission (EEOC), alleging
Canyons discriminated against her “[b]ased on race,
sex, age, National origin, and retaliation.” (Fax Cover
Sheet, Ex. 40, ECF No. 33.) The EEOC deemed Ms. Ordonez's
charge finally filed on December 22, 2010. (Charge of
Discrimination, Ex. 7, ECF No. 97-7; Pl.'s Reply to
Def.'s Reply in Supp. of Mot. for Summ. J. & Supp.
Mem. (“Surreply”) 4, ECF No. 114.)
December 21, 2010, Ms. Ordonez filed for Chapter 7 bankruptcy
with the United States Bankruptcy Court for the District of
Utah. (In re Ordonez, No. 10-37596 (Bankr. D. Utah
2010), Ch. 7 Petition, ECF No. 1.) On December 22, 2010, the
EEOC validated Ms. Ordonez's complaint and permitted her
to file a Notice of Charge of Discrimination with the EEOC.
(EEOC Date-Stamped Charge of Discrimination, Ex. 7, ECF No.
97-7; Surreply 4, ECF No. 114.) On December 30, 2010, Ms.
Ordonez filed her statement of financial affairs with the
bankruptcy court and failed to disclose her administrative
claims against Canyons. (In re Ordonez, No.
10-37596, Statement of Financial Affairs, ECF No. 9.) On
October 12, 2011, the bankruptcy court discharged Ms.
Ordonez's debts. (Discharge of Debtor(s), Ex. 2, ECF No.
108-2; In re Ordonez, No. 10-37596, Order
Discharging Debtor(s), ECF No. 33.)
October 3, 2012, the EEOC issued Ms. Ordonez a right to sue
letter, but Ms. Ordonez only received the letter via e-mail
on January 3, 2013. (Notice of Right to Sue 1-2, ECF No. 4-1;
Pl.'s Aff. In Supp. of Pl.'s Reply to Def.'s
Reply Mot. for Summ. J. & Supp. Mem. (“Ordonez
Aff.”) ¶ 3, Ex. 2, ECF No. 114-2; EEOC E-mail
Correspondence, Ex. C, ECF No. 114-2.) On April 3, 2013, Ms.
Ordonez filed this action against Canyons. (Compl., ECF No.
4.) On September 30, 2013, Ms. Ordonez filed an Amended
Complaint seeking compensatory damages, punitive damages,
interest, and an award of attorney's fees, litigation
expenses, and other costs. (Am. Compl. 15, ECF No. 15.)
February 2017, Ms. Ordonez learned that she should have
disclosed her EEOC filing during her bankruptcy. (Summary of
facts re: Bankruptcy, ¶¶ 18-22, Ex. 1, ECF No.
118.) On June 19, 2017, Ms. Ordonez moved to reopen her
bankruptcy. (In re Ordonez, Mot. to Reopen, ECF No.
47.) The bankruptcy court granted that Motion on July 19,
2017. (Id.; Order Granting Mot. to Reopen, ECF No.
November 30, 2017, Canyons moved for summary judgment in this
case. (Mot., ECF No. 96.) The Court granted Ms. Ordonez a
sixty-day extension to respond to Canyons' Motion. In the
interim, on January 3, 2018, the Court entered an order
compelling Ms. Ordonez to inform the Court whether she had
disclosed her administrative claims against Canyons during
her bankruptcy proceeding. (Order, ECF No. 101.) In October
2017, the Court had dismissed another lawsuit Ms. Ordonez had
brought against Defendant Air Serv Corporation (“Air
Serv”) on judicial estoppel grounds because Ms. Ordonez
failed to disclose her administrative proceeding against Air
Serv during her bankruptcy. (Ordonez v. Air Serv,
No. 2:13-cv-00067, Mem. & Order Overruling R&R &
Granting Summ. J., ECF No. 146.) Following the Court's
ruling in Air Serv, on December 1, 2017, Ms. Ordonez
amended her statement of financial affairs to reflect her
claim against Air Serv but did not disclose any claims
against Canyons. (Am. Statement of Financial Affairs 3, Ex.
6, ECF No. 108-6.) On January 16, 2018, Ms. Ordonez responded
to the Court's Order (Pl.'s Answer Fulfilling the
Judge Order Issued on January 3, 2018, ECF No. 102) and also
amended her statement of financial affairs to reflect her
claims against Canyons. (Statement of Financial Affairs, Ex.
3, ECF No. 108-3.) On January 31, 2018, Ms. Ordonez filed her
opposition to Canyon's Motion. (Opp'n, ECF No. 105.)
February 14, 2018, Canyons filed its Reply and addressed the
judicial estoppel issue for the first time in light of the
Court's order alerting Canyons to Ms. Ordonez's
bankruptcy case. (Def.'s Reply in Supp. of its Mot. for
Summ. J. & Supp. Mem., ECF No. 107.) On March 13, 2018,
the Court accepted Ms. Ordonez's Surreply, giving Ms.
Ordonez an opportunity to respond to Canyon's Reply.
(Surreply, ECF No. 114.)
undersigned also reviewed Canyons' Errata to its Motion
for Summary Judgment correcting errors in its original Motion