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Ordonez v. Canyons School District

United States District Court, D. Utah

June 27, 2018

SONIA ORDONEZ, Plaintiff,
v.
CANYONS SCHOOL DISTRICT, Defendant.

          Dale A. Kimball District Judge

          REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 96)

          EVELYN J. FURSE UNITED STATES MAGISTRATE JUDGE

         Defendant Canyons School District (“Canyons”) moves the Court[1] 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.

         I. LEGAL STANDARD

         Under 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)).

         II. FACTUAL AND PROCEDURAL HISTORY

         The 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.

         Canyons 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.)

         On 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.)[2] 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.)

         On 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.)

         In 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. 51.)

         On 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.)

         On 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.)

         The undersigned also reviewed Canyons' Errata to its Motion for Summary Judgment correcting errors in its original Motion ...


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