Rivera-Colon v. United States of America et al
Filing
76
ORDER granting 63 Defendant's Motion for Summary Judgment. Signed by Judge Raymond L. Acosta on 8/25/09. (ans)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
RUTH RIVERA COLON, Plaintiff, v. KAREN G. MILLS, ADMINISTRATOR, U.S. SMALL BUSINESS ADMINISTRATION,1 Defendant. CIVIL NO. 06-1461 (RLA)
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Defendant has moved the Court to enter summary judgment in these proceedings and to dismiss plaintiff's complaint. The Court having reviewed the arguments presented by the parties as well as the evidence submitted in support thereof hereby rules as follows. Plaintiff filed the instant complaint alleging sex
discrimination, retaliation and retaliatory harassment in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1) et seq. In essence, plaintiff claims that her two-day suspension and eventual termination from employment were due to gender (female) discrimination and retaliation. Additionally she alleges that she was subjected to retaliatory harassment.
Karen G. Mills became Administrator of the U.S. Small Business A d m i n i s t r a t i o n on April 3, 2009. Accordingly, she is automatically s u b s t i t u t e d for Stephen C. Preston as the proper party defendant. See R u l e 25(d) Fed. R. Civ. P.
1
1 2
C I V I L NO. 06-1461 (RLA)
Page 2
I. SUMMARY JUDGMENT STANDARD
3
Rule 56(c) Fed. R. Civ. P., which sets forth the standard for
4
ruling on summary judgment motions, in pertinent part provides that
5
they shall be granted "if the pleadings, depositions, answers to
6
interrogatories,
7 8
and
admissions
on
file,
together
with
the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as
9
a matter of law."
10 11
Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st
Cir. 2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 1999). The party seeking summary judgment must first demonstrate the
12
absence
13 14
of
a
genuine
issue
of
material
fact
in
the
record.
DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997).
15
A genuine
issue exists if there is sufficient evidence supporting the claimed factual disputes to require a trial. Morris v. Gov't Dev. Bank of
16
Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am.
17
Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S.
18
1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994).
19 20
A fact is material if
it might affect the outcome of a lawsuit under the governing law. Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir.
21
1995).
22
"In ruling on a motion for summary judgment, the Court must view
23
`the facts in the light most favorable to the non-moving party,
24
drawing all reasonable inferences in that party's favor.'" Poulis25
Minott v. Smith, 388 F.3d 354, 361 (1st Cir. 2004) (citing Barbour v.
26
1 2
C I V I L NO. 06-1461 (RLA)
Page 3
Dynamics
3 4
Research
Corp.,
63
F.3d
32,
36
(1st
Cir.
1995)).
"In
marshaling the facts for this purpose we must draw all reasonable inferences in the light most favorable to the nonmovant. That does
5
not mean, however, that we ought to draw unreasonable inferences or
6
credit
7 8
bald
assertions,
empty
conclusions,
rank
conjecture,
or
vitriolic invective." Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007) (internal citation omitted italics in
9
original).
10
Credibility issues fall outside the scope of summary judgment.
11
"`Credibility determinations, the weighing of the evidence, and the
12
drawing of legitimate inferences from the facts are jury functions,
13
not those of a judge.'" Reeves v. Sanderson Plumbing Prods., Inc.,
14
530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing
15
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505,
16
91 L.Ed.2d 202 (1986)). See also, Dominguez-Cruz v. Suttle Caribe,
17
Inc., 202 F.3d 424, 432 (1st Cir. 2000) ("court should not engage in
18
credibility assessments."); Simas v. First Citizens' Fed. Credit
19
Union, 170 F.3d 37, 49 (1st Cir. 1999) ("credibility determinations
20
are for the factfinder at trial, not for the court at summary
21
judgment."); Perez-Trujillo v. Volvo Car Corp., 137 F.3d 50, 54 (1st
22
Cir. 1998) (credibility issues not proper on summary judgment);
23
Molina Quintero v. Caribe G.E. Power Breakers, Inc., 234 F.Supp.2d
24
108,
25 26
113
(D.P.R.
2002).
"There
is
no
room
for
credibility
determinations, no room for the measured weighing of conflicting
1 2
C I V I L NO. 06-1461 (RLA)
Page 4
evidence such as the trial process entails, and no room for the judge
3
to superimpose his own ideas of probability and likelihood. In fact,
4
only if the record, viewed in this manner and without regard to
5
credibility determinations, reveals no genuine issue as to any
6
material fact may the court enter summary judgment." Cruz-Baez v.
7
Negron-Irizarry, 360 F.Supp.2d 326, 332 (D.P.R. 2005) (internal
8
citations, brackets and quotation marks omitted).
9
In cases where the non-movant party bears the ultimate burden of
10
proof, he must present definite and competent evidence to rebut a
11
motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477
12
U.S. at 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202; Navarro v. Pfizer
13
Corp., 261 F.3d 90, 94 (1st Cir. 2000); Grant's Dairy v. Comm'r of
14
Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir. 2000), and cannot rely
15
upon "conclusory allegations, improbable inferences, and unsupported
16
speculation".
17
Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st
Cir. 2000);
18 19
Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 R.J. Reynolds Tobacco Co., 896 F.2d
(1st Cir. 1994); Medina-Muñoz v. 5, 8 (1st Cir. 1990).
20
Any testimony used in support of discriminatory motive in a
21
motion for summary judgment setting must be admissible in evidence,
22
i.e., based on personal knowledge and otherwise not contravening
23
evidentiary
24
principles. submitted in
Rule
56(e)
specifically with the
mandates
that
affidavits
25 26
conjunction
summary
judgment
mechanism must "be made on personal knowledge, shall set forth such
1 2
C I V I L NO. 06-1461 (RLA)
Page 5
facts
3 4
as
would
be
admissible
in
evidence,
and
shall
show
affirmatively that the affiant is competent to testify to the matters stated therein." Hoffman v. Applicators Sales and Serv., Inc., 439
5
F.3d 9, 16 (1st Cir. 2006); Nieves-Luciano v. Hernandez-Torres, 397
6
F.3d 1, 5 (1st Cir. 2005); Carmona v. Toledo, 215 F.3d 124, 131 (1st
7
Cir. 2000). See also, Quiñones v. Buick, 436 F.3d 284, 290 (1st Cir.
8
2006) (affidavit inadmissible given plaintiff's failure to cite
9
"supporting
10
evidence the
to
which
he
could
testify facts as
in
court"). to
Additionally,
11 12
document
"must
concern
opposed
conclusions, assumptions, or surmise", Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001), not conclusory allegations Lopez13
Carrasquillo v. Rubianes, 230 F.3d at 414.
14
"To the extent that affidavits submitted in opposition to a
15
motion for summary judgment merely reiterate allegations made in the
16
complaint, without providing specific factual information made on the
17
basis of personal knowledge, they are insufficient. However, a
18
party's own affidavit, containing relevant information of which he
19
has firsthand knowledge, may be self-serving, but it is nonetheless
20
competent to support or defeat summary judgment." Santiago-Ramos v.
21 22
Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000) (internal citations and quotation marks omitted).
23 24 25 26
"A court is not obliged to accept as true or to deem as a disputed material fact each and every unsupported, subjective,
conclusory, or imaginative statement made to the Court by a party."
1 2
C I V I L NO. 06-1461 (RLA)
Page 6
Garcia v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 n.5 (1st Cir.
3
2008) (internal citation, brackets and quotation marks omitted).
4
II. THE FACTS
5
The Court finds the following material facts uncontested for
6
purposes of this Order.
7
Plaintiff
8 9
was
a
career
employee
with
the
Small
Business
Administration's ("SBA") Disaster Program in Puerto Rico since 1989. At all times relevant to her complaint, plaintiff was a Grade 13
10
supervisor for SBA's Puerto Rico District Office ("PRDO").
11
In or about November 2002, plaintiff, along with ANA M. DEL TORO
12
and JOSE A. IBERN, two other supervisors at PRDO, submitted an
13
informal
14 15
complaint
to
the
Agency's
Ad
hoc
Committee
on
Sexual
Harassment for Investigation. The complaint accused senior management at PRDO of favoring a female employee with employment benefits not
16
provided
17
to
other
employees.
Complainants
requested
that
their
identity remain anonymous.
18
On December 17, 2002, plaintiff and the two other complainants
19
were informed that the Ad hoc Committee had investigated their
20
complaint and had determined that there was no basis for their
21
claims.
22 23 24 25 26
On February 20, 2003, the PRDO held a training session on the Agency's Telecommuting Program. EFRAIN PARDO, PRDO Deputy District Director, and IVAN IRIZARRY, PRDO District Director, were present during the training.
1 2
C I V I L NO. 06-1461 (RLA)
Page 7
On
3 4
March
4,
2003,
GERMAN
HERNANDEZ,
PRDO
Agency
Attorney
Advisor, sent a memo to PARDO expressing his concern regarding derogatory comments concerning the Telecommuting Program he had
5
overheard plaintiff making to other employees.
6
On March 11, 2003, IRIZARRY was forwarded the minutes from the
7
Local Partnership Council February 28, 2003 meeting, wherein the
8
Union representatives present thereat pointed to employee complaints
9
about plaintiff's continued comments to them that their positions
10
would be eliminated or contracted out if they participated in the
11
Telecommuting Program. The Union indicated that the employees felt
12
threatened and anxious due to the aforementioned comments made by a
13
supervisor. It requested that plaintiff be instructed to cease and
14
desist from this practice and for management to take action on the
15
matter.
16
On March 25, 2003, PARDO issued plaintiff a letter proposing a
17
two-day suspension for unprofessional conduct regarding her behavior
18
during the telecommuting training session.
19
On April 3, 2003, plaintiff submitted her written response to
20
the proposed suspension.
21
On April 24, 2003, IRIZARRY issued a decision letter sustaining
22
the charge of unprofessional conduct against plaintiff. The letter
23 24 25 26
explained that the suspension would take place on May 5th and 6th 2003. On June 30, 2003, plaintiff contacted an EEO Counselor regarding her two-day suspension.
1 2
C I V I L NO. 06-1461 (RLA)
Page 8
Beginning late 2003 and continuing through early 2004 the Agency
3
transformed its liquidation function,2 in part by centralizing the
4
liquidation staff in Herndon, Virginia. The creation and staffing of
5
the centralized center would eliminate the need for each district
6
office to employ its own staff of liquidators.
7
On September 9, 2003, the Agency entered into a Memorandum of
8
Understanding ("MOU") with the American Federation of Government
9
Employees ("AFGE") Council 228. Pursuant to the MOU, district office
10
staff at the GS-9 grade level and above who reported performing
11
liquidation
12 13
functions
of
25%
or
more
in
the
most
recent
cost
allocation survey would be directly reassigned to the new center. The language in the MOU did not distinguish the disaster funded
14
employees from the regular SBA funded employees.
15
Pursuant
16
thereto,
114
employees
were
given
directed
reassignments: 67 males and 47 females.
17
Further, none of the individuals who plaintiff implicated in any
18
of her complaints and grievances was involved in the formulation and
19
negotiation of the criteria used for reassignment.
20
On the most recent cost allocation survey completed by the
21
Agency in May 2003, plaintiff's response reflected that she spent 35%
22
of her time on liquidation activities.
23 24 25 26
2
On September 10, 2003, the Agency sent to 171 employees including plaintiff - a letter offering separation incentives by
Term used for collecting on defaulted loans.
1 2
C I V I L NO. 06-1461 (RLA)
Page 9
means of a "buy out." The letter also apprised the employees that
3
they would be affected by future reassignments.
4
On September 12, 2003, JUAN LOPEZ, plaintiff's subordinate at
5
the Disaster Program who also received a letter, contacted MS.
6
HAYMES, an Office of Human Capital Management employee, to inquire
7
whether the letters had been mistakenly sent to them inasmuch as they
8
were employed at the disaster program.3 MS. HAYMES responded that the
9
letters
10 11
were
correct.
LOPEZ
then
e-mailed
PARDO
requesting
clarification of the situation. On September 12, 2003, PARDO sent plaintiff and LOPEZ an e-mail
12
apologizing for the confusion and informing them that the letter was
13
not a mistake and that Disaster Program employees were included in
14
the reassignment process.
15
On December 1, 2003, MONIKA HARRISON, Chief Human Capital
16
Officer, sent letters to 60 employees - including plaintiff - giving
17
them notice of their direct reassignment to Herndon, Virginia. The
18
letter allowed employees 15 days to either accept or decline the
19
reassignment.
20
On
21
December
17,
2003,
SUSAN
WALTHALL,
Deputy
Associate
Administrator for Field Operations, sent plaintiff a letter proposing
22
her removal for failure to accept the directed reassignment. The
23 24 25 26 PRDO co-worker LEOCADIO MEDINA, a regular funded SBA employee, a l s o received a directed reassignment. However, he died on December 6, 2 0 03 .
3
letter admonished plaintiff that she had until January 5, 2004, to
1 2
C I V I L NO. 06-1461 (RLA)
Page 10
give her response either verbally or in writing to JOHN WHITMORE,
3
counselor to the SBA Administrator.
4
On
5 6
January
5,
2004,
plaintiff
sent
a
letter
to
WHITMORE
requesting special consideration. She petitioned the Agency to take into account her health and family problems, education issues and the
7
financial hardship that the directed reassignment would have upon
8
her.
9
On January 6, 2004, WHITMORE informed plaintiff that he could
10
not grant her request and that she would be removed effective
11
January 24, 2004, for failure to accept the directed reassignment.
12
III. SUSPENSION - TIMELINESS
13
Defendant seeks to dismiss plaintiff's discriminatory challenges
14
to her suspension, as set forth in her June 30, 2003 EEO initial
15
contact, as untimely.
16
The United States, as a sovereign, is immune from suit unless it
17
waives its immunity by consenting to be sued. See, United States v.
18
Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)
19
("It is axiomatic that the United States may not be sued without its
20
consent and that the existence of consent is a prerequisite for
21
jurisdiction."). In 1972 - by way of an amendment to the Civil Rights
22
Act of 1964 - federal employees as well as applicants to federal
23 24 25 26
employment were allowed to vindicate claims of discrimination in employment based on "race, color, religion, sex, or national origin" via judicial proceedings. 42 U.S.C. § 2000e-16(a). These remedies
1 2
C I V I L NO. 06-1461 (RLA)
Page 11
are exclusive and mandate that employees first exhaust the pertinent
3
administrative steps prior to resorting to the court for relief.
4
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453,
5
112 L.Ed.2d 435 (1990); Brown v. Gen. Servs. Admin., 425 U.S. 820,
6
829-30, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976).
7
Hence, federal if the aggrieved
agencies
8 9
"may
only
be
sued
in
federal
court
employee... has exhausted all available administrative remedies. Misra v. Smithsonian Astrophysical Observatory, 248 F.3d 37, 40 (1st
10
Cir. 2001). "[P]laintiffs could not proceed under Title VII without
11
first exhausting administrative remedies."
12 13
Lebron-Rios v. U.S.
Marshal Serv., 341 F.3d 7, 13 (1st Cir. 2003). "Judicial recourse under Title VII, however, is not a remedy of first resort...."
14
Morales-Vallellanes v.
15
Potter, 339 F.3d 9, 18 (1st Cir. 2003). cause of action is limited to those
Plaintiff's
16
"Title
VII
discrimination and retaliation allegations in his ... complaint that
17
were previously the subject of a formal EEO complaint." Id.
18
The
19
Equal the
Employment
Opportunity of
Commission the
("EEOC") mechanisms
was and
assigned
20
responsibility
establishing
deadlines for employees and applicants to employment to initiate the
21
administrative process for claims based on discrimination encompassed
22
within Title VII.
23 24 25 26
See 42 U.S.C. § 2000e-16(b).
The regulations
issued thereunder provide that aggrieved employees must bring the discriminatory events to the attention of an EEO Counselor "within 45 days of the date of the matter alleged to be discriminatory, or in
1 2
C I V I L NO. 06-1461 (RLA)
Page 12
the case of personnel action, within 45 days of the effective date of
3
the action." 29 C.F.R. § 1614.105(a)(1) (1999). The regulations
4
further provide that the 45-day term may be extended under specific
5
equitable
6 7
circumstances
to
be
proven
by
the
individual.
§ 1614.105(a)(2). Failure to contact the counselor within the 45-day term provided
8
by the regulations causes plaintiff to lose the right to subsequently
9
bring suit in court. Roman-Martinez v. Runyon, 100 F.3d 213, 217 (1st
10
Cir. 1996). "[T]he law is clear that a federal employee filing a
11
Title VII action must contact an EEO counselor within 304 days of the
12
event that triggers his claim." Jensen v. Frank, 912 F.2d 517, 520
13
(1st Cir. 1990).
14 15
See also, Velazquez-Rivera v. Danzig, 234 F.3d 790,
794 (1st Cir. 2000) (administrative remedies not exhausted since no contact with EEOC counselor within the 45 days required by the
16
regulations).
17
"[I]n a Title VII case, a plaintiff's unexcused failure to
18
exhaust
19 20
administrative
remedies
effectively
bars
the
courthouse
door." Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005). Plaintiff's initial contact with the EEO Counselor to complain
21
of discrimination regarding her suspension on May 4 and 5, 2003, took
22
place on June 30, 2003. That is, beyond the 45-day term provided in
23 24 25 26 The period for initially contacting the EEO counselor was o r i g i n a l l y 30 days. This term was extended to 45 days in the r e g u l a t i o n s effective 1992.
4
the regulations. Plaintiff has attempted to show cause for having the
1 2
C I V I L NO. 06-1461 (RLA)
Page 13
term extended arguing that it was not until May 20, 2003, that she
3
become aware that her 2002 informal complaint had been made public
4
and allegedly learned about the disparate treatment afforded HECTOR
5
NARVAEZ, another PRDO supervisor.
6
Because we find that plaintiff has failed to meet her burden to
7
challenge the validity of her suspension on Title VII grounds we need
8
not address the timeliness argument.
9
IV. SUSPENSION - DISCRIMINATION
10
Plaintiff claims that her two-day suspension was discriminatory
11
because men were treated more favorably than women at the Agency.
12
"When... direct evidence is lacking to support a discrimination
13
claim, the plaintiff must rely on establishing a prima facie case
14
through the familiar steps of the [McDonnel Douglas] burden-shifting
15
framework." Moron-Barradas v. Dep't of Educ., 488 F.3d 472, 480 (1st
16
Cir. 2007). "[T]he burden for establishing a prima facie case is not
17
onerous." Douglas v. J.C. Penney Co., Inc., 474 F.3d 10, 14 (1st Cir.
18
2007).
19
"Disparate treatment cases ordinarily proceed under the three20
step, burden-shifting framework outlined in McDonnell Douglas Corp.
21
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First,
22
the plaintiff must establish, by a preponderance of the evidence, a
23 24 25 26
prima facie case of discrimination. Second, if the plaintiff makes out this prima facie case, the defendant must articulate a
legitimate, nondiscriminatory explanation for its actions. Third, if
1 2
C I V I L NO. 06-1461 (RLA)
Page 14
the defendant carries this burden of production, the plaintiff must
3
prove by a preponderance that the defendant's explanation is a
4
pretext for unlawful discrimination. The burden of persuasion remains
5
at all times with the plaintiff." Mariani-Colon v. Dept. of Homeland
6
Sec. ex rel. Chertoff, 511 F.3d 216, 221 (1st Cir. 2007) (citation and
7
internal quotation marks omitted); Douglas, 474 F.3d at 14.
8
"Generally, a plaintiff establishes a prima facie case of
9
discrimination by showing: 1) he is a member of a protected class, 2)
10
he is qualified for the job, 3) the employer took an adverse
11
employment action against him, and 4) the position remained open, or
12
was filled by a person with similar qualifications. This burden is
13
not onerous, as only a small showing is required." Mariani-Colon, 511
14
F.3d at 221-22 (citation and internal quotation marks omitted);
15
Douglas, 474 F.3d at 13-14. See also, Moron-Barradas, 488 F.3d at 481
16
(prima
17
facie
case
established
by
presenting
evidence
that
(1) plaintiff was "a member of a protected class, (2) she applied and
18
was qualified for the... position, and... (3) was rejected... and (4)
19
[defendant] hired someone with similar or lesser qualifications").
20
Once plaintiff has complied with this initial prima facie burden
21
the defendant must "articulate a legitimate nondiscriminatory reason"
22
for
23 24 25 26
the
challenged
conduct
at
which
time
presumption
of
discrimination fades and the burden then falls back on plaintiff who must then demonstrate that the proffered reason was a "pretext" and that the decision at issue was instead motivated by discriminatory
1 2
C I V I L NO. 06-1461 (RLA)
Page 15
animus.
3 4
Rivera-Aponte v. Rest. Metropol #3, Inc., 338 F.3d 9, 11
(1st Cir. 2003); Gu v. Boston Police Dept., 312 F.3d 6, 11 (1st Cir. 2002); Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir. 2002);
5
Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 44-45 (1st Cir.
6
2002); Feliciano v. El Conquistador, 218 F.3d 1, 5 (1st Cir. 2000);
7
Santiago-Ramos, 217 F.3d. at 54.
8 9
"At this third step in the burden-
shifting analysis, the McDonnell Douglas framework falls by the wayside because the plaintiff's burden of producing evidence to rebut
10
the employer's stated reason for its employment action merges with
11
the ultimate burden of persuading the court that she has been the
12
victim of intentional discrimination."
13 14
Feliciano, 218 F.3d at 6
(citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (internal citations and
15
quotation marks omitted).
16
Defendant's
17
"burden
is
one
of
production,
not
persuasion"
Reeves, 530 U.S. at 142, and "[a]t all times, the plaintiff bears the
18
'ultimate burden of persuading the trier of fact that the defendant
19
intentionally discriminated against the plaintiff.'" Gu v. Boston
20
Police Dept., 312 F.3d at 11 (citing Texas Dept. of Cmty. Affairs v.
21
Burdine, 450 U.S. at 253). See also, Reeves, 530 U.S. at 143.
22
"Upon the emergence of such an explanation, it falls to the
23 24 25 26
plaintiff to show both that the employer's proffered reasons is a sham, and that discriminatory animus sparked its actions." Cruz-Ramos v. Puerto Rico Sun Oil Co., 202 F.3d 381, 384 (1st Cir. 2000)
1 2
C I V I L NO. 06-1461 (RLA)
Page 16
(citation and internal quotation marks omitted). "The plaintiff must
3
then show, without resort to the presumption created by the prima
4
facie case, that the employer's explanation is a pretext for...
5
discrimination." Rivera-Aponte v. Rest. Metropol # 3, Inc., 338 F.3d
6
at 11.
7
Thus, in a summary judgment context the court must determine
8
"whether plaintiff has produced sufficient evidence that [s]he was
9
discriminated against due to [her sex] to raise a genuine issue of
10
material fact."
11 12
Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d at
45; Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 534 (1st Cir. 2002). Summary judgment will be denied if once the court has reviewed
13
the evidence submitted by the parties in the light most favorable to
14
the plaintiff it finds there is sufficient evidence from which a
15
trier of fact could conclude that the reasons adduced for the charged
16
conduct are pretextual and that the true motive was discriminatory.
17
Santiago-Ramos v. Centennial, 217 F.3d at 57; Rodriguez-Cuervos v.
18
Wal-Mart Stores, Inc., 181 F.3d 15, 20 (1st Cir. 1999).
19
However, in the context of a summary judgment "`the need to
20
order the presentation of proof is largely obviated, and a court may
21
often
22
dispense
with
strict
attention
to
the
burden-shifting
framework, focusing instead on whether the evidence as a whole is
23 24 25 26
sufficient to make out a question for a factfinder as to pretext and discriminatory animus.'" Calero-Cerezo v. U.S. Dep't of Justice, 355
1 2
C I V I L NO. 06-1461 (RLA)
Page 17
F.3d 6, 26 (1st Cir. 2004) (citing Fennell v. First Step Designs,
3
Ltd., 83 F.3d 526, 535 (1st Cir. 1996)).
4
"Proof of more than [plaintiff's] subjective belief that [s]he
5
was the target of discrimination however, is required. In order to
6
establish a disparate treatment claim, a plaintiff must show that
7
others similarly situated to [her] in all relevant respects were
8
treated differently by the employer." Mariani-Colon, 511 F.3d at 222
9
(citations and internal quotation marks omitted).
10
"To survive a defendant's motion for summary judgment on a
11
discrimination claim, a plaintiff must produce sufficient evidence to
12
create a genuine issue of fact as to two points: 1) the employers'
13
articulated reasons for its adverse actions were pretextual, and 2)
14
the real reason for the employers' actions was discriminatory animus
15
based on a protected category." Id. at 223.
16
"At the third stage of the McDonnell Douglas/Burdine framework,
17
the ultimate burden is on the plaintiff to persuade the trier of fact
18
that she has been treated differently because of her [sex]." Thomas
19 20
v. Eastman Kodak Co., 183 F.3d 38, 56 (1st Cir. 1999). "Plaintiff may use the same evidence to support both conclusions [pretext and
21
discriminatory animus], provided that the evidence is adequate to
22
enable a rational factfinder reasonably to infer that unlawful
23 24 25 26
discrimination was a determinative factor in the adverse employment action." Thomas, 183 F.3d at 57 (citation and internal quotation marks omitted).
1 2
C I V I L NO. 06-1461 (RLA)
Page 18
The
3 4
fact
that
the
reasons
proffered
by
the
employer
are
discredited by plaintiff does not automatically mandate a finding of discrimination. "That is because the ultimate question is not whether
5
the explanation was false, but whether discrimination was the cause
6
of the [conduct at issue]. We have adhered to a case by case
7
weighing. Nonetheless, disbelief of the reason may, along with the
8
prima facie case, on appropriate facts, permit the trier of fact to
9
conclude the employer had discriminated." Zapata-Matos v. Reckitt &
10
Colman, Inc., 277 F.3d at 45 (citations omitted); Reeves, 530 U.S. at
11
147-48. Plaintiff's challenges to defendant's proffered reasons is
12
not sufficient to meet his burden. See, Ronda-Perez v. Banco Bilbao
13
Vizcaya, 404 F.3d 42, 44 (1st Cir. 2005). Rather, "[t]he question to
14
be resolved is whether the defendant's explanation of its conduct,
15
together with any other evidence, could reasonably be seen by a jury
16
not only to be false but to suggest [sex]-driven animus." Id. See
17
also, Candelario Ramos v. Baxter Healthcare Corp. of P.R., 360 F.3d
18
53, 56 (1st Cir. 2004).
19
For purposes of the summary judgment request presently before us
20
"`the focus should be on the ultimate issue: whether, viewing the
21
aggregate package of proof offered by the plaintiff and taking all
22
inferences in the plaintiff's favor, the plaintiff has raised a
23 24 25 26
genuine issue of fact as to whether the [suspension and] termination of the plaintiff's employment was motivated by [sex]
1 2
C I V I L NO. 06-1461 (RLA)
Page 19
discrimination.'" Rivas Rosado, 312 F.3d at 535 (citing
3
Dominguez-
Cruz, 202 F.3d at 430-31).
4
A. GENDER-BASED DISCRIMINATION
5
Plaintiff claims that her two-day suspension from work was
6
discriminatory because a similarly-situated male supervisor with a
7
record
8 9
of
alleged
incidents
of
unprofessional
conduct
at
the
workplace was treated more favorably. "A plaintiff can demonstrate that an employer's stated reasons
10
are pretextual in any number of ways, including by producing evidence
11
that
12 13
plaintiff
was
treated
differently
from
similarly
situated
employees. To successfully allege disparate treatment, a plaintiff must show that others similarly situated to her in all relevant
14
respects were treated differently by the employer. The comparison
15
cases need not be perfect replicas, but they must closely resemble
16
one another in respect to relevant facts and circumstances." Garcia,
17
535 F.3d at 31 (internal citations, brackets and quotation marks
18
omitted). See also, Rivera Aponte, 338 F.3d at 12 ("[A] claim of
19
disparate treatment based on comparative evidence must rest on proof
20
that the proposed analogue is similarly situated in all material
21
respects.") (quotation omitted).
22
"It is fundamental that a claim of disparate treatment based on
23 24 25 26
comparative evidence must rest on proof that the proposed analogue is similarly situated in all material respects. The comparison cases need not be perfect replicas. Rather, the test is whether a prudent
1 2
C I V I L NO. 06-1461 (RLA)
Page 20
person, looking objectively at the incidents, would think them
3
roughly equivalent and the protagonists similarly situated. Thus, in
4
offering this comparative evidence, [plaintiff] bears the burden of
5
showing that the individuals with whom she seeks to be compared have
6
been subject to the same standards and have engaged in the same
7
conduct without such differentiating or mitigating circumstances that
8
would distinguish their conduct or the employer's treatment of them
9
for it." Rodriguez-Cuervos, 181 F.3d at 21 (citations and internal
10
quotation marks omitted).
11
In Rodriguez-Cuervos, plaintiff was able to establish that the
12
reasons proffered for his demotion were inaccurate and that plaintiff
13
was treated differently from other managers. However, plaintiff could
14
not prevail in his Title VII claim because he failed to present
15
evidence that the actions taken had been motivated by discriminatory
16
animus. The court explained that "the fatal weakness in [plaintiff's]
17
case [was] his failure to present any evidence that [his employer's]
18
actions
19
were
predicated
on
the
basis
of
[Title
VII
protected
characteristics]. Unfortunately for [plaintiff], Title VII does not
20
stop a company from demoting an employee for any reason - fair or
21
unfair - so long as the decision to demote does not stem from a
22
protected characteristic". Rodriguez-Cuervos, 181 F.3d at 22.
23 24 25 26
For purposes of our ruling we shall assume that plaintiff met her prima facie claim of gender discrimination. She is a female, was qualified for and adequately performing the duties of her position
1 2
C I V I L NO. 06-1461 (RLA)
Page 21
and the two-day suspension constitutes an adverse personnel action.
3
"`In disparate treatment cases, comparative evidence is to be treated
4
as part of the pretext analysis, and not as part of the plaintiff's
5
prima facie case.'" Garcia, 535 F.3d at 31 (citing Kosereis v. Rhode
6
Island, 331 F.3d 207, 213 (1st Cir. 2003)).
7
In this particular case, defendant has pointed to plaintiff's
8
conduct to justify her suspension. Hence, we must determine whether
9
or not plaintiff has adduced sufficient evidence to demonstrate that
10
the reason proffered by SBA is but a pretext and that her suspension
11
was motivated instead by her gender. Thus, we shall focus on the
12
reasons proffered by defendant to ascertain whether or not these were
13
pretextual and to determine whether or not similarly situated males
14
were treated more favorably.
15
Plaintiff was suspended for two days based on her behavior
16
during a Telecommuting Training. Both the letter giving plaintiff
17
notice of her proposed suspension based on unprofessional conduct
18
dated March 25, 2003 - which was subscribed by PARDO - as well as the
19
final determination made by IRIZARRY on April 3, 2003, clearly
20
identify the underlying conduct resulting in the adverse action as
21
well as the source of the information underlying the charges.
22
It is important to note that several witnesses concurred that
23 24 25 26
plaintiff's
behavior
during
the
Telecommuting
Training
was
inappropriate. The fact that other persons present at the training
1 2
C I V I L NO. 06-1461 (RLA)
Page 22
may have perceived the events differently does not necessarily render
3
the suspension discriminatory.
4
Additionally, subsequent to the training, PRDO management was
5
made aware of Union and employee concerns regarding plaintiff's
6
public negative comments regarding the purpose and effect of the
7
Telecommuting Program.
8
According
9 10
to
the
minutes
of
the
February
28,
2003
Local
Partnership Council meeting, which IRIZARRY also attended, "[t]he union indicated that Ms. Ruth Rivera has been saying in her division
11
and at other divisions in the office that she was not going to allow
12
her employees to participate in the telecommuting program. Also, that
13
employees who participate in the program will loose (sic) their jobs.
14
Employees feel threatened and anxious when these comments come from
15
a supervisor since her comments are unfounded, they want Ms. Rivera
16
to cease and desist from this practice. They want management to take
17
action and to inform them of the action taken." (Emphasis ours).
18
E-
mail from IRIZARRY to Helen Jacobson dated March 20, 2003 (docket No.
19
63-13).
20
On March 4, 2003, PARDO received a subsequent complaint from
21
GERMAN HERNANDEZ, PRDO's Attorney Advisor, Legal Division, addressing
22
plaintiff's negative comments regarding the purpose of the program as
23 24 25 26
a means to get rid of the employees and its detrimental effect on the Agency's plans.
1 2
C I V I L NO. 06-1461 (RLA)
Page 23
The
3 4
fact
that
plaintiff,
as
a
supervisor,
was
publicly
undermining the Agency's efforts further aggravated the nature of her conduct. This is also explained in both the March 25, 2003 and April
5
24, 2003 letters. In this regard, the April 23, 2003 suspension
6
memorandum reads:
7
Your conduct is serious in nature. Telling employees that
8
their positions would or could be eliminated if they
9
participate in the telecommuting program has a chilling
10
effect on employee participation, undermines the Agency's
11
initiative, and has an adverse impact on employee morale.
12
Your comments resulted in increased employee anxiety about
13
their employment. As a supervisor, you are responsible for
14
supporting
15
Agency
policies
and
initiatives
and
for
providing a positive role model for subordinate employees.
16
Your conduct seriously erodes my confidence in your ability
17
to
18
fulfill
responsibilities
of
your
position
in
a
professional and effective manner.
19
Memo from IRIZARRY to plaintiff (docket No. 63-15) pp. 1-2.
20
In support of her disparate treatment argument, plaintiff avers
21
that HECTOR NARVAEZ, another Grade 13 supervisor: (1) was the object
22
of a Union complaint for remarks made in the work place and was not
23 24 25 26
disciplined; (2) was allowed the opportunity to rebut the Union's
1 2
C I V I L NO. 06-1461 (RLA)
Page 24
allegations and (3) was responsible for two other incidents involving
3
unprofessional conduct without any consequence.5
4
Plaintiff further contends that at least eight female employees
5
and no males were reprimanded and/or suspended during IRIZARRY's
6
tenure.
7
1. Union Complaint.
8
Plaintiff
9 10
cites
an
incident
involving
NARVAEZ
regarding
derogatory comments of the Portfolio Management Division (PMD) staff made
11 12
by
a
bank
employee.
According
to
plaintiff,
NARVAEZ
was
responsible for spreading information which caused employees to request the Union's intervention.
13
Plaintiff's
14 15
version
of
the
events,
however,
substantially
differs from the explanation given by PARDO who clarified that the letter at issue which gave rise to the general malaise of the PMD
16
staff was not written nor made public by NARVAEZ. The following
17
summarizes plaintiff's account of the incident:
18
On May 24, 2003, Mr. Joe Ibern informed me that Mr.
19
Narvaez had sent a letter to Ms. Ana del Toro, PMD Chief.
20 21 22 23 24 25 26
Plaintiff's evidence regarding allegedly unprofessional conduct on the part of NARVAEZ as well as other incidents of alleged disparate treatment is not based on either documentary evidence or her personal knowledge but rather is premised on what IBERN, her supervisor, allegedly told her. Assuming, as plaintiff argues, that this information is not hearsay and it is admissible under Rule 801(d)(2)(D), as further discussed infra, we find the allegations too general to be useful to compare the circumstances to conclude that indeed both plaintiff and NARVAEZ were similarly situated or that females in general were more harshly penalized.
5
1 2
C I V I L NO. 06-1461 (RLA)
Page 25
The letter had been prepared by Mr. Angel Santana at the
3
request of Mr. Narvaez for an investigation into alleged
4
comments from a bank employee about the PMD staff. The
5
letter was insulting and accused the PMD division of being
6
negligent among other things. When the PMD staff received
7
a copy of this letter they felt humiliated and insulted.
8
Mr. Luis Nuñez, one of the PMD employees, requested that
9
the Union interfere in this situation and that Mr. Narvaez
10
be reprimanded for his actions. The Union directive met
11
with Mr. Pardo and Mr. Irizarry to discuss this complaint.
12
Mr. Narvaez was called by Mr. Pardo and Mr. Irizarry to
13
discuss the complaint brought up by the union and was aloud
14
[sic] to write an apology to the employees. This was not
15
the first time that the employees had complaint [sic] to
16
the union or to Mr. Pardo and Mr. Irizarry about Mr.
17
Narvaez' conduct. However, he was informed of the complaint
18
giving him the opportunity to rebut the allegations and
19
once again deal with the alleged complaint against him,
20
thus avoiding that any type of disciplinary action be
21
taken.
22
Interview Questions for RUTH RIVERA (docket No. 68-13) ¶ 7.
23 24 25 26
According to PARDO, however, not only was the letter not written by NARVAEZ but more importantly, NARVAEZ forwarded it to both his immediate supervisor as well as the PMD supervisor for a meeting to
1 2
C I V I L NO. 06-1461 (RLA)
Page 26
deal with the situation. Before the meeting took place the memorandum
3
was
4 5
improvidently
disclosed
by
the
PMD
supervisor.
Due
to
the
conflict generated thereby, NARVAEZ apologized to the PMD staff for his employee's choice of words. Thus, there was no wrongdoing on the
6
part of NARVAEZ.
7
MR. PARDO explained in detail the circumstances surrounding this
8
incident
9 10
which
support
our
conclusion
that
this
incident
is
distinguishable from plaintiff's situation. As for Mr. Narvaez, he did not write a letter that was
11
"insulting and that accused the PMD division of being
12
negligent among other things". Mr. Narvaez forwarded a memo
13
written by one of his employees to his immediate supervisor
14
(ADD/ED), Jose Ibern and PMD supervisor Ana del Toro. In
15
this
16
memo,
Mr.
Narvaez' and
employee included a
(not
Mr.
Narvaez) opinion
summarized
17
findings
personal
regarding an issue raised by a participating lender. The
18
reason Mr. Narvaez forwarded the memo to his immediate
19
supervisor and PMD supervisor was to suggest a meeting to
20
review the finding. However, this memo was inappropriately
21
shared with the PMD staff by the PMD supervisor (Ana Del
22
Toro) before any meeting. In so doing, she created a
23 24 25 26
hostile atmosphere between her employees and Mr. Narvaez' employee. In order to ease the tension, Mr. Narvaez wrote a letter of apology to each of the PMD employees regarding
1 2
C I V I L NO. 06-1461 (RLA)
Page 27
his employee's editorializing. The conduct of Mr. Narvaez
3
was not in question.
4
Request for Additional Information (docket No. 63-17) ¶ 7.
5
2.
6 7
Opportunity to Rebut Charges.
Contrary to her arguments, plaintiff was specifically allowed the opportunity to refute the charges leading to her suspension.
8
Accordingly, we shall then proceed to address the instances of
9
alleged disparate treatment listed by plaintiff.
10
3.
11 12
Instances of Unprofessional Conduct.
According to e-mails submitted by defendant (docket No. 68-11), during 1999 an employee named GLADYS M. JIMENEZ complained that
13
NARVAEZ was continually asking her about her retirement plans.
14
NARVAEZ's supervisor was instructed by PARDO to ensure NARVAEZ
15
discontinued this practice.
16
Apart from the remoteness in time, we find nothing in NARVAEZ's
17
behavior comparable to plaintiff's situation. It was a matter limited
18
to the supervisor and the employee which did not have any effects on
19
the other office personnel.
20
Plaintiff further claims that NARVAEZ made derogatory comments
21
about one of his subordinates during a manager's meeting and no
22
disciplinary action was taken even though the matter was brought to
23 24 25 26
the attention of IRIZARRY.
1 2
C I V I L NO. 06-1461 (RLA)
Page 28
Absent any details regarding the circumstances surrounding this
3
alleged
4 5
incident,
we
find
it
impossible
to
consider
them
as
comparable to plaintiff's suspension. Plaintiff also alleges that while male employees who had used
6
"abusive and indecent language towards a female supervisor" were
7
never counseled or reprimanded IRIZARRY requested that the female
8
supervisor be counseled.
9 10
Again, we know nothing of the specifics to
assess the relevance of this allegation. In a conclusory fashion, plaintiff indicates that "[d]uring Mr.
11
Irizarry's tenure in our office eight female employees have been
12
reprimanded and/or suspended while no male employees have been
13
subjected to any kind of disciplinary action for their unprofessional
14
conduct". Interview Questions for RUTH RIVERA (docket No. 68-13) ¶ 7.
15
This allegation, by itself, is useless for comparison purposes for
16
the particular circumstances of each case are unknown.
17
Defendant having come forth with legitimate nondiscriminatory
18
reasons for having suspended plaintiff, the evidentiary presumption
19
of discrimination vanishes and the burden falls back upon plaintiff
20
to demonstrate that the proffered grounds for suspension were a
21
"pretext"
22
and
the
decision
was
motivated
instead
by
sex
discrimination.
23 24 25 26
Similar to Garcia, "all of the instances of disparate treatment cited by [plaintiff] are either unsupported by the record or are distinguishable in important respects from the facts and
1 2
C I V I L NO. 06-1461 (RLA)
Page 29
circumstances that [plaintiff] faced." Id., 535 F.3d at 33 (internal
3
citations and quotation marks omitted). Plaintiff has not presented
4
sufficient admissible evidence to show that her male counterparts
5
engaged in similar disrespectful and disruptive behavior and were not
6
subject to disciplinary measures.
7
In sum, we find that plaintiff has failed in her burden of
8
establishing
9 10
that
the
reasons
given
for
her
suspension
were
pretextual and motivated instead by the fact that she was a female. Accordingly,
11 12
the
gender-based
claim
challenging
her
two-day
suspension is hereby DISMISSED. B. RETALIATION
13
Plaintiff alleges that her suspension in April 2003 was in
14
retaliation
15
for
having
previously
filed
an
informal
sexual
discrimination complaint against PARDO and IRIZARRY on or about
16
November 7, 2002. In addition to plaintiff, the informal complaint
17
was also subscribed by other two PRDO supervisors, ANA DEL TORO and
18
JOSE IBERN. It was intended that the document remain confidential.
19
In their informal complaint the complainants charged that senior
20
management officials had created a hostile work environment "by
21
demanding
22
sexual
favors
from
subordinates
and
rewarding
such
employees with employment benefits and opportunities not afforded
23 24 25 26
others or vice versa."6 According to the document, the latest incident
E-mail from ANA M. DEL TORO to plaintiff and November 7, 2002 (docket No. 63-7).
6
IBERN dated
1 2
C I V I L NO. 06-1461 (RLA)
Page 30
involved the appointment of ROSA LAGOMARSINI to the position of
3
Administrative
4 5
Officer/Business
Opportunity
Specialist
following
questionable procedures. The informal complaint was submitted to the Agency's Ad Hoc
6
Committee on Sexual Harassment for investigation. On December 17,
7
2002, complainants were informed that the Committee had determined
8
that there was no basis for their claims.
9
"Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a),
10
states that it is unlawful for an employer to discriminate against an
11
employee because `he has opposed any practice made an unlawful
12
employment practice..., or because he has made a charge, testified,
13
assisted,
14 15
or
participated
in
any
matter
in
an
investigation,
proceeding, or hearing.'" DeClaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008).
16
The interests sought to be protected by Title VII's anti17
discrimination mandate differ from those underlying its retaliation
18
clause.
19
"The
substantive
provision
seeks
to
prevent
injury
to
individuals based on who they are, i.e., their status. The anti20
retaliation provision seeks to prevent harm to individuals based on
21
what they do, i.e., their conduct." Burlington N. & Santa Fe Ry. Co.
22
v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
23 24 25 26
"It therefore does not matter for retaliation purposes whether [the employer] would have treated a male [employee] the same way he treated [plaintiff]. The relevant question is whether [the employer]
1 2
C I V I L NO. 06-1461 (RLA)
Page 31
was retaliating against [plaintiff] for filing a complaint, not
3
whether he was motivated by gender bias at the time." DeClaire, 530
4
F.3d at 19.
5
Hence, for retaliation purposes "[t]he relevant conduct is that
6
which occurred after [plaintiff] complained about his superior's
7
[discriminatory] related harassment." Quiles-Quiles v. Henderson, 439
8
F.3d 1, 8 (1st Cir. 2006).
9
"The evidence of retaliation can be direct or circumstantial."
10
DeClaire, 530 F.3d at 20. Unless direct evidence is available, Title
11
VII retaliation claims may be proven by using the burden-shifting
12
framework set forth in McDonnell Douglas. "In order to establish a
13
prima facie case of retaliation, a plaintiff must establish three
14
elements. First, the plaintiff must show that he engaged in a
15
protected
16
activity.
Second,
the
plaintiff
must
demonstrate
he
suffered a materially adverse action, which caused him harm, either
17
inside or outside of the workplace. The impact of this harm must be
18
sufficient to dissuade a reasonable worker from making or supporting
19
a charge of discrimination. Third, the plaintiff must show that the
20
adverse action taken against him was causally linked to his protected
21
activity." Mariani-Colon, 511 F.3d at 223 (citations and internal
22
quotation marks omitted); Moron-Barradas, 488 F.3d at 481; Quiles23 24 25 26
Quiles, 439 F.3d
at 8.
"Under the McDonnell Douglas approach, an employee who carries her burden of coming forward with evidence establishing a prima facie
1 2
C I V I L NO. 06-1461 (RLA)
Page 32
case of retaliation creates a presumption of discrimination, shifting
3
the
4 5
burden
to
the
employer
to
articulate
a
legitimate,
non-
discriminatory reason for the challenged actions... If the employer's evidence
6 7
creates
a
genuine
issue
of
fact,
the
presumption
of
discrimination drops from the case, and the plaintiff retains the ultimate burden of showing that the employer's stated reason for the
8
challenged actions was in fact a pretext for retaliating." Billings
9
v. Town of Grafton, 515 F.3d 39, 55 (1st Cir. 2008) (citations,
10
internal quotation marks and brackets omitted).
11
"[A]n employee engages in protected activity, for purposes of a
12
Title VII retaliation claim, by opposing a practice made unlawful by
13
Title VII, or by participating in any manner in an investigation or
14
proceeding under Title VII." Mariani-Colon, 511 F.3d at 224.
15
"[Title VII's] anti-retaliation provision protects an individual
16
not from all retaliation, but from retaliation that produces an
17
injury or harm." Burlington, 548 U.S. at 67. In order to prevail on
18
a retaliation claim "a plaintiff must show that a reasonable employee
19
would have found the challenged action materially adverse, which in
20
this context means it well might have dissuaded a reasonable worker
21
from making or supporting a charge of discrimination." Id. at 68. It
22
is not necessary that the conduct at issue affect the employee's
23 24 25 26
"ultimate employment decisions." Id. at 67. According to Burlington, the determination of whether a
particular action is "materially adverse" must be examined based on
1 2
C I V I L NO. 06-1461 (RLA)
Page 33
the facts present in each case and "should be judged from the
3
perspective of a reasonable person in the plaintiff's position,
4
considering all the circumstances." Id. at 71 (citation and internal
5
quotation marks omitted).
6
In reaching its decision in Burlington, the Supreme Court
7
considered factors such as the fact that the duties of a position
8
"were...
9 10
more
arduous
and
dirtier"
when
compared
to
the
other
position which "required more qualifications, which is an indication of prestige [] and... was objectively considered a better job". Id.
11
(citation and quotation marks omitted).
12
In Billings the court distinguished between minor incidents
13
which take place in the usual course of a work setting and have no
14
import on an individual's decision to file a discrimination charge
15
and those which might deter an employee from complaining of such
16
conduct.
17
Specifically,
the
court
noted
that
"some
of
[the
supervisor's] behavior - upbraiding [plaintiff] for her question at
18
the Board of Selectmen meeting, criticizing her by written memoranda,
19
and allegedly becoming aloof toward her - amounts to the kind of
20
petty slights or minor annoyances that often take place at work and
21
that all employees experience and that, consequently, fall outside
22
the scope of the antidiscrimination laws... But we cannot say the
23 24 25 26
same for the other incidents, namely, investigating and reprimanding [plaintiff] for opening the letter from [the supervisor's] attorney, charging her with personal time for attending her deposition in this
1 2
C I V I L NO. 06-1461 (RLA)
Page 34
case, and barring her from the Selectmen's Office. While these
3
measures might not have made a dramatic impact on [plaintiff's] job,
4
conduct need not relate to the terms or conditions of employment to
5
give rise to a retaliation claim. Indeed, we think that these
6
actions, by their nature, could well dissuade a reasonable employee
7
from making or supporting a charge of discrimination. An employee who
8
knows that, by doing so, she risks a formal investigation and
9
reprimand - including a threat of further, more serious discipline 10
for being insufficiently careful in light of her pending litigation
11
as well as the prospect of having to take personal time to respond to
12
a notice of deposition issued by her employer in that litigation,
13
might well choose not to proceed with the litigation in the first
14
place." Billings, 515 F.3d at 54 (citations, internal quotation marks
15
and brackets omitted).
16
"It is true that an employee's displeasure at a personnel action
17
cannot,
18
standing
alone,
render
it
materially
adverse...
[but
plaintiff] came forward with enough objective evidence contrasting
19
her former and current jobs to allow the jury to find a materially
20
adverse employment action." Id. at 53.
21
Depending on the particular set of facts at hand, "temporal
22
proximity alone can suffice to meet the relatively light burden of
23 24 25 26
establishing a prima facie case of retaliation." DeClaire, 530 F.3d at 19 (citation and internal quotation marks omitted). See also, Mariani-Colon, 511 F.3d at 224 ("[T]he `temporal proximity' between
1 2
C I V I L NO. 06-1461 (RLA)
Page 35
appellant's allegations of discrimination in June 2002 and his
3
termination in August 2002 is sufficient to meet the relatively light
4
burden of establishing a prima facie case of retaliation"); Quiles5
Quiles, 439 F.3d at 8 ("[I]n proper circumstances, the causation
6
element may be established by evidence that there was a temporal
7
proximity
8 9
between
the
behavior
in
question
and
the
employee's
complaint.") "[T]here is no mechanical formula for finding pretext. One way
10
to
11 12
show
pretext
is
through
such
weaknesses,
implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's proffered
13 14
legitimate
reasons
for
its
action
that
a
reasonable
factfinder could rationally find them unworthy of credence and with or without the additional evidence and inferences properly drawn
15
therefrom infer that the employer did not act for the asserted non16
discriminatory reasons." Billings, 515 F.3d at 55-56 (citations,
17
internal quotation marks and brackets omitted).
18
Plaintiff carries the burden of presenting admissible evidence
19
of retaliatory intent in response to a summary judgment request. The
20
court need not consider unsupported suppositions. "While [plaintiff]
21
engages in much speculation and conjecture, a plaintiff cannot defeat
22
summary judgment by relying on conclusory allegations, or rank
23 24 25 26
speculation. To defeat summary judgment, a plaintiff must make a colorable showing that an adverse action was taken for the purpose of
1 2
C I V I L NO. 06-1461 (RLA)
Page 36
retaliating against him." Mariani-Colon, 511 F.3d at 224 (citations
3
and internal quotation marks omitted).
4
Additionally, even though "it is permissible for the trier of
5
fact to infer the ultimate fact of discrimination from the falsity of
6
the employer's discrimination, but doing so is not required, as there
7
will be instances where, although the plaintiff has established a
8
prima facie case and set forth sufficient evidence to reject the
9
defendant's explanation, no rational fact-finder could conclude that
10
the action was discriminatory." DeClaire, 530 F.3d at 19-20 (italics
11
in original).
12
Lastly, there are instances where issues of fact regarding the
13
veracity of the allegedly pretextual reasons demand that trial be
14
held to resolve them. See i.e., Billings, 515 F.3d at 56 (citations
15
and internal quotation marks omitted) ("But we think that, under the
16
circumstances of this case, it is the jury that must make this
17
decision, one way or another. As we have advised, where a plaintiff
18
in a discrimination case makes out a prima facie case and the issue
19
becomes whether the employer's stated nondiscriminatory reason is a
20
pretext for discrimination, courts must be particularly cautious
21
about granting the employer's motion for summary judgment. Such
22
caution is appropriate here, given the factual disputes swirling
23 24 25 26
around the transfer decision.") Even though "[t]emporal proximity can create an inference of causation in the proper case... to draw such an inference, there must
1 2
C I V I L NO. 06-1461 (RLA)
Page 37
be proof that the decisionmaker knew of the plaintiff's protected
3
conduct when he or she decided to take the adverse employment
4
action." Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 84 (1st
5
Cir. 2006). See also, Freadman v. Metro. Prop. and Cas. Ins. Co., 484
6
F.3d 91, 106 (1st Cir. 2007) (no causal connection inasmuch as
7
accommodation request made after decision to remove plaintiff made);
8
Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997) ("[T]he adverse
9
action must have been taken for the purpose of retaliating. And to
10
defeat summary judgment, a plaintiff must point to some evidence of
11
retaliation by a pertinent decisionmaker.")
12
Initially we must point out that no evidence has been submitted
13
to establish that either PARDO or IRIZARRY were aware of plaintiff's
14
November 2002 informal complaint prior to May, 2003. Plaintiff's
15
testimony to this effect is that on May 20, 2003, she learned that
16
copies of the November 2002 complaint were circulating around the
17
office. No specific persons or dates are mentioned in her deposition
18
testimony. Rather, plaintiff concedes that she did not know when or
19
how IRIZARRY or PARDO became aware of her previous complaint.
20
Rather,
21
the
evidence
on
record
does
show
that
PARDO,
who
initiated the suspension process by issuing the March 23, 2003
22
letter, did not learn about the allegations in the informal complaint
23 24 25 26
1 2
C I V I L NO. 06-1461 (RLA)
Page 38
until May 21, 2003, that is, after plaintiff had already served her
3
suspension on May 5 and 6, 2003.7
4
Further, as previously discussed in the context of plaintiff's
5
gender-based discrimination claim, there was ample basis for PARDO to
6
propose and for IRIZARRY to decide to suspend plaintiff.
7
Even more crucial to this issue is the fact that no disciplinary
8
measures befell upon either of the other two signatories of the 2002
9
informal complaint.
10
Based on the foregoing, we find that plaintiff's retaliation
11
theory as the motive for her May 2003 suspension is not legally
12
plausible. Accordingly, this claim is hereby DISMISSED.
13
V. TERMINATION
14
Plaintiff was terminated from her SBA employment effective
15
January 24, 2003, due to her refusal to be reassigned to Virginia.
16
Again, plaintiff challenges this determination both on gender bias
17
(female) as well as retaliation pursuant to Title VII.
18
In support of its summary judgment request, defendant explained
19
in
20
detail
the
reasons
for
establishing
a
Guaranty
Purchase/Liquidation Center in Herndon, Virginia in 2004; how the
21
procedure and criteria for identifying employees to be reassigned was
22 23 24 25 26
According to PARDO, a November 7, 2002 memorandum identified as "Suggested changes - Attachment to Listing of Issue and Basis... was placed under the door of the Administrative Officer and given to [him] on 5/21/03. [He] was not aware that a `complaint' had been filed on November 7, 2002; nor... of any of the allegations contained in such alleged complaint." Request for Additional Information (docket No. 63-17) ¶ 1 p. 1. This testimony stands uncontested.
7
1 2
C I V I L NO. 06-1461 (RLA)
Page 39
developed and applied, as well as events leading to plaintiff's
3
termination.
4
Plaintiff moves us to discard these explanations as pretextual
5
based on the following arguments: (1) the MOU did not apply to her
6
because she was not a Union member; (2) an issue of fact remains as
7
to whether or not disaster employees were eligible for reassignment;
8
(3) the persons who decided that she was eligible for reassignment
9
were aware of: (a) the disciplinary actions taken against her during
10
2002 and 2003, and (b) JOHN WHITMORE, the deciding official regarding
11
her termination, was a member of Ad Hoc Committee that reviewed and
12
dismissed the informal discrimination charge filed in November 2002,
13
and (4) plaintiff was willing to accept the reassignment at a later
14
date but her request was denied by WHITMORE.
15
JOHN WHITMORE explained that SBA underwent a "transformation
16
effort... [which included] a systematic review of its programs and
17
business
18
processes."8 loan
One
of
the
areas SBA
examined guaranteed
was
the
7(a) from
guaranteed
19
program
whereby
loans
participating lenders. During the past ten years, the Agency had been
20
moving away from direct loan management to lender management shifting
21
the responsibility over to the participating lenders. He concluded
22
that "[a] major portion of the 7(a) loan guarantee activity is now
23 24 25
8
done by participating 7(a) lenders. The lenders approve a majority of
Interview Questions for JOHN WHITMORE (docket No. 63-21) ¶ 7
26
p.2.
1 2
C I V I L NO. 06-1461 (RLA)
Page 40
the loan applications with little SBA involvement, do most of the
3
servicing, and perform most of the liquidation work."9 "[A]s of the
4
end
5 6
of
December
2002,
SBA
serviced
just
8%
of
the
loans
in
liquidation while lenders were responsible for 92%. However, even with the shift to lender servicing and liquidation, the current
7
process
8 9
still
required
SBA
District
Office
staff
to
spend
a
considerable amount of time on the loan liquidation function. As a result of the Agency's review of its liquidation/guarantee purchase
10
process, the SBA concluded that the liquidation process could be
11
improved and streamlined to further realign the liquidation process
12
and the lenders' responsibilities."10
13
WHITMORE,
14 15
who
actively
participated
in
the
transformation
process, further indicated that due to the positive results garnered from a March 2003 pilot project centralizing 7(a) loan liquidation
16
activities from various district offices which showed that these
17
"were more effectively and efficiently done through a centralized
18
process" the SBA Administrator approved the establishment of a
19
centralized guaranty purchase center on June
20
9, 2003.11 established in the
The
21
plan
called
for
a
center
to
be
Washington, D.C. area - Herndon Center - "staffed with 40 field
22
employees who had reported spending 25% or more of their time
23 24 25 26
9
Interview Questions for JOHN WHITMORE (docket No. 63-21) p. 2.
Id. Id.
10
11
1 2
C I V I L NO. 06-1461 (RLA)
Page 41
performing liquidation activities".12
3 4
The issue was discussed with
the Union and a Memorandum of Understanding along the following was reached:
5
1.
6 7
Current SBA district office staff at GS-9 and above who reported performing liquidation functions at least 25% of the time in the most recent agency cost allocation study
8
would be directly reassigned to the new center;
9
2.
10 11
SBA would offer an early retirement option for all Agency personnel and a buy-out option for individuals directly involved in the liquidation function;
12
3.
13 14
Employees who opted for the buyout offer would be off the Agency rolls by September 30, 2003;
4.
15
The letters affecting employees to be directly reassigned would allow for a 15 day response time and a 30 day
16
reporting date; and
17
5.
18
The
process
to
be
used
for
employees
to
be
directly
reassigned would be reverse seniority.
19
Interview Questions for JOHN WHITMORE (docket No. 63-21) ¶7 p. 3; see
20
also, Memorandum of Understanding Between SBA and AFGE Council 228
21
(docket No. 63-19).
22
On September 10, 2003, SBA sent letters to 171 individuals,
23 24 25
12
including plaintiff, who were at the GS-9 level and above who had
Interview Questions for JOHN WHITMORE (docket No. 63-21) ¶7
26
p. 2.
1 2
C I V I L NO. 06-1461 (RLA)
Page 42
reported to be performing liquidation activities of 25% or more in
3
the most recent cost allocation survey. The recipients were advised
4
that they would be directly affected by reassignments unless they
5
opted for the buy-out alternative. Out of the 171 individuals who
6
were issued the letters, 70 initially opted for the buyout but only
7
47 ultimately took it.
8
On November 7, 2003, the Agency solicited volunteers to relocate
9
to the
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?