Cabrera vs. Sears, Roebuck de Puerto Rico, Inc.

Filing 62

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 29 MOTION for Summary Judgment filed by Sears, Roebuck de Puerto Rico, Inc. We DISMISS Plaintiff's claims for disability discrimination, failure to accommodate, and retaliatory discharge u nder the ADA, his Law 44 claims, and his Law 115 claims relating to his EEOC charge and PROSHA complaints. Remaining are Plaintiff's claims for retaliatory suspension under the ADA, retaliatory discharge under Law 115 arising from his testimony to the Puerto Rico police, and wrongful termination under Law 80. The parties are strongly encouraged to exhaust all settlement possibilities before proceeding to trial. Signed by Chief Judge Jose A Fuste on 8/10/09.(mrj)

1 2 3 4 5 6 7 8 9 10 L U I S CABRERA, Plaintiff, v.

U N I T E D STATES DISTRICT COURT D I S T R I C T OF PUERTO RICO

C i v i l No. 08-1325 (JAF)

S E A R S ROEBUCK DE PUERTO RICO, I N C . , et al., Defendants.

11 12 13 14 15 16 17 18 19 20 21 22

O P I N I O N AND ORDER P l a i n t i f f Luis Cabrera brings this action against Defendants S e a r s Roebuck de Puerto Rico Inc. ("Sears") and Sears Holding G r o u p alleging violations of the Americans with Disabilities Act ( " A D A " ) , 42 U.S.C. §§ 12101-12213, and Act No. 44, of July 2, 1 9 8 5 , 1 L.P.R.A. § 501-511b (2008) ("Law 44"); Act No. 115, of D e c e m b e r 20, 1991, 29 L.P.R.A. § 194-194b (2001) ("Law 115"); and A c t No. 80, of May 30, 1976, 29 L.P.R.A. § 185a-185m (2001 & S u p p . 2007) ("Law 80"), under Puerto Rico law. (Docket No. 12.) D e f e n d a n t s move for summary judgment. (Docket No. 29.) Plaintiff o p p o s e s (Docket No. 40), Defendants reply (Docket No. 50), and P l a i n t i f f surreplies (Docket No. 54).

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I. F a c t u a l and Procedural Synopsis W e derive the following facts from the parties' motions, s t a t e m e n t s of uncontested facts, and exhibits. (Docket Nos. 29, 3 0 , 35, 38, 40, 49, 50, 53, 54, 60.) P l a i n t i f f began working at Sears on December 14, 1999, as a m a t e r i a l s handler in the Sears Retail and Distribution Center ( " R D C " ) in Cupey, Puerto Rico. From 2003 to 2006, Plaintiff o p e r a t e d a cherry picker machine in a RDC warehouse picking and r e t r i e v i n g stocked merchandise. This required Plaintiff to lift h i m s e l f up to fifteen-and-a-half feet in the air with the machine t o take merchandise off the warehouse shelves. D u r i n g Plaintiff's employment, Sears had a code of business c o n d u c t and a workplace policy prohibiting violence and threats. Sears issued notices to Plaintiff several times during his

e m p l o y m e n t for alleged violations of the policy. O n October 23, 2001, Plaintiff received an Ethics/Policy V i o l a t i o n Notice from a supervisor regarding an incident on August 29, 2001, with a co-worker, Iván Molina. The notice

provides

no details of the incident. Sears later terminated

M o l i n a ' s employment.

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O n April 11, 2006, RDC Operations Manager Gregory Rivera and D i s t r i c t Logistics Manager Abner Román met with Plaintiff and a c o - w o r k e r to discuss an incident that had occurred between them o n February 9, 2006. The nature of the incident is not documented a n d is disputed by the parties. In February 2006, Dr. Evelio Bravo Fernández ("Bravo")

d i a g n o s e d Plaintiff with Hepatitis C. On May 4, 2006, Plaintiff verbally requested reassignment and to another changes position resulting due from to a

anticipated

physical

emotional

m e d i c a l treatment he was about to begin. On May 9, 2006, Bravo s u b m i t t e d a Health Care Provider Certification ("HCPC") to Sears s t a t i n g that Plaintiff was limited in his ability to perform m a n u a l tasks, specifically heavy lifting, exposure to heights, a n d use of stairs. Bravo indicated that the expected duration of t h e treatment would be forty-eight to fifty weeks, and that P l a i n t i f f would require reassignment to another position and a m o d i f i e d work schedule. Bravo also checked "yes" in response to t h e question, "Do you believe your patient poses an imminent and s u b s t a n t i a l degree of risk to [his] health or safety or to the h e a l t h and safety of others if [he] worked in the described p o s i t i o n ? " (hereinafter the "risk assessment question"). Bravo e x p l a i n e d that Plaintiff "[m]ay fall or get accident prone."

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( D o c k e t No. 29-20.) Prior to beginning treatment, Plaintiff was a s y m p t o m a t i c and able to perform the essential functions of his j o b without limitation. P l a i n t i f f began treatment on May 26, 2006; he took a leave o f absence around this time for three to four weeks. As a result of the treatment, Plaintiff suffered muscular pain,

c e r e b r o v a s c u l a r problems, diarrhea, stomach problems, dizziness, depression, hair loss, weight loss, irritability, fatigue,

a n e m i a , insomnia, memory loss, difficulty with coordination of m o v e m e n t , and weakness. Upon his return to work, Sears assigned P l a i n t i f f to stock merchandise using a Hyster machine, which did n o t expose Plaintiff to heights or heavy lifting and allowed him t o remain seated. On August 29, 2006, Sears issued a Documentation of

P e r f o r m a n c e Issues ("DPI"), which described an incident in June 2 0 0 6 between Plaintiff and his supervisor Miguel Paca, during which Plaintiff allegedly threatened Paca and used obscene

l a n g u a g e . The document advised Plaintiff that it was not the f i r s t time he had been involved in an argument or altercation at w o r k . Plaintiff denies that the incident occurred. I n December 2006, Plaintiff filed a complaint with Puerto R i c o ' s Occupational Safety and Health Administration ("PROSHA")

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t o report safety concerns at Sears. On December 14, 2006, PROSHA s e n t Sears a letter regarding the situation; the letter did not i d e n t i f y the complainant. PROSHA later notified Plaintiff that

S e a r s had resolved the safety concerns. On January 4, 2007, Plaintiff received a DPI notifying him t h a t on November 30, 2006, he had violated the workplace violence p o l i c y by engaging in a verbal altercation with a co-worker in f r o n t of other co-workers. Plaintiff noted on the form that he h a d reported the incident on November 30, 2006. Plaintiff's

e a r l i e r report stated that the co-worker had instigated the i n c i d e n t and threatened Plaintiff. I n April or May 2007, Bravo informed Plaintiff that the t r e a t m e n t had not been successful and would need to continue. On May 8, 2007, Plaintiff submitted another HCPC from Bravo

r e q u e s t i n g accommodations.

The form reported limitations in

P l a i n t i f f ' s ability to perform manual tasks, specifically heavy l i f t i n g , exposure to heights, and using stairs. Bravo indicated t h a t he expected the condition to last forty-eight weeks, and t h a t Plaintiff required reassignment to another position and a m o d i f i e d work schedule that did not require work on Saturdays. B r a v o again checked "yes" in response to the risk assessment q u e s t i o n and noted that Plaintiff "[m]ay fall or get accident

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p r o n e . Emotional liability [second] to his treatment." (Docket N o . 29-28.) A s s o c i a t e Relations Manager Sunny González contacted Sears' Accommodation Help Desk in Chicago on May 25, 2007, for

a s s i s t a n c e in handling Plaintiff's request for accommodation. On M a r c h 31, 2007, Román and Human Resources Specialist Jennifer Vega spoke with Jean Barlett, Sears' fair employment and

a c c o m m o d a t i o n consultant, who directed them to ask Plaintiff's doctor whether Plaintiff could continue working with the

a c c o m m o d a t i o n s he had already been given.

If the information was

u n c l e a r , Sears would hire an independent doctor, and would put P l a i n t i f f on leave for the duration of his treatment if he could n o t work in any available position. On June 28, 2007, González r e q u e s t e d that Plaintiff submit additional medical information i n order to evaluate his request for reasonable accommodation. T h e same day, González sent an email with a Performance Plan for I m p r o v e m e n t to Román to discuss with Plaintiff, and stated that " w e understand that this is not the time to fire him." (Docket N o . 53-11.) González asked Román to explain to Plaintiff that t h i s would be his last chance. O n June 15, 2007, PROSHA again notified Sears that it had received a notice of an alleged health and safety risk,

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s p e c i f i c a l l y that the batteries of their lifts were defective and r e l e a s e d acid and smells that affected employees; the notice did not identify the complainant. On June 27, 2007, Plaintiff

c o m p l a i n e d to Vega that the Hyster machine's battery was leaking a c i d and emitting a strong odor. Vega and others later visited

t h e machine but discovered no odor. O n July 3, 2007, PROSHA wrote to Plaintiff acknowledging a c o m p l a i n t he had filed about safety concerns at Sears. The same d a y , PROSHA wrote to Román informing him of a complaint of

s t a g n a n t water and defective ramps at Sears; the letter did not i d e n t i f y the complainant. O n July 4, 2007, Plaintiff received another DPI listing s e v e n occasions on which he had been disrespectful or threatening t o w a r d supervisors or coworkers, including a June 27, 2007, i n c i d e n t in which Plaintiff allegedly yelled at Vega and other s u p e r v i s o r s in front of coworkers. P l a i n t i f f submitted a third HCPC from Bravo on July 10, 2007. Bravo stated that Plaintiff limited had in been diagnosed major with life

depression

and

anemia,

was

several

a c t i v i t i e s , and suffered from insomnia, loss of memory, muscle p a i n , irritability, and lack of stamina and strength. He wrote t h a t he expected the condition to last seventy-two weeks and that

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Plaintiff

could

not

perform

heavy

lifting

or

be

exposed

to

h e i g h t s . Bravo

clarified in response to the risk assessment

q u e s t i o n that Plaintiff was at risk for "trauma due to falls and c o u l d get hurt or have accident[s] due to his weakness. He is not a risk to the health of others." (Docket No. 29-34.) G o n z á l e z , Vega, and Román met with Plaintiff on July 24, 2007. Sears At the meeting, Plaintiff executed a medical release so could speak directly with his doctors regarding his

l i m i t a t i o n s and required accommodations. The supervisors also i n f o r m e d Plaintiff that he would be suspended from work pending clarification of the information in the HCPC. During the

s u s p e n s i o n , Plaintiff received short-term disability payments of s e v e n t y percent of his salary. O n July 30, 2007, González spoke by telephone with Bravo, w h o confirmed that Plaintiff could do his job with the provided a c c o m m o d a t i o n s , that he would simply have to work more slowly and c a r e f u l l y due to his weakness and lack of agility, that his i r r i t a b i l i t y and aggressiveness were a result of the treatment b u t that it was not likely to rise to the level of violence, and t h a t the treatment would last at most five to six months more. Bravo also stated that he had referred Plaintiff to a

p s y c h i a t r i s t to deal with his changes in mood.

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A t González' request, Plaintiff executed a medical release for her to speak with his psychiatrist, Dr. Brignoni

( " B r i g n o n i " ) , on August 2, 2007. On August 6, 2007, Plaintiff brought González a letter from Brignoni certifying that

P l a i n t i f f ' s emotional condition was stable and did not prevent o r interfere with his work, but she did not accept the letter. L a t e r that day, González spoke by telephone with Brignoni, who stated that he would not comment until González put Sears'

s p e c i f i c concerns in writing. On August 9, 2007, González sent Brignoni a five-page letter detailing Plaintiff's alleged

p r o b l e m s at work. O n August 14, 2007, Sears received notice that Plaintiff had filed a charge of disability discrimination with the Equal

E m p l o y m e n t Opportunity Commission ("EEOC") on July 25, 2007. On August 15, 2007, Brignoni sent Sears a medical

c e r t i f i c a t e stating that Plaintiff could return to work and " r e s u m e his full-time tasks." (Docket No. 29-44.) The same day, S e a r s informed Plaintiff that he could return to work. Plaintiff r e t u r n e d to work on August 16, 2007, and continued working with the Hyster machine accommodation. That day, to González assist asked in

Ricardo

Miranda,

Plaintiff's

supervisor,

her

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e n s u r i n g that Plaintiff satisfactorily performed his work without c r e a t i n g problems for coworkers or supervisors. O n October 5, 2007, an anonymous caller contacted a Sears e t h i c s hotline to report that Plaintiff frequently disrespected c o w o r k e r s and supervisors, instigated arguments, and created tension and anxiety in the workplace. The caller could not

p r o v i d e specific examples of such behavior. O n October 10, 2007, Plaintiff drafted a statement detailing a n interview he had had with police agents who were investigating t h e f t s at RDC. Plaintiff implicated certain Sears supervisors and m a n a g e r s as responsible for the thefts. Plaintiff alleges that h e informed Vega of these facts and allegations on November 8, 2007. O n November 8, 2007, Paca called the ethics hotline and r e p o r t e d that Plaintiff had disrespected him that day and on t h r e e prior occasions; Paca claimed to have made prior reports w i t h o u t effect. The same day, Paca wrote a report detailing the

i n c i d e n t and the verbal exchange with Plaintiff. Plaintiff denies P a c a ' s account. S e a r s terminated Plaintiff on November 9, 2007. Plaintiff

f i l e d a second charge of discrimination with the EEOC on November 1 3 , 2007.

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P l a i n t i f f filed the present action in federal district court o n March 14, 2008. (Docket Nos. 1, 12.) Defendant moved for s u m m a r y judgment on April 24, 2009. (Docket No. 29.) Plaintiff o p p o s e d on May 18, 2009 (Docket No. 40), Defendant replied on May 2 9 , 2009 (Docket No. 49), and Plaintiff surreplied on June 9, 2 0 0 9 (Docket No. 54). II. S u m m a r y Judgment Standard Under Rule 56(c) W e grant a motion for summary judgment "if the pleadings, discovery and disclosure materials on file, and any

a f f i d a v i t s show that there is no genuine issue as to any material f a c t and the movant is entitled to judgment as a matter of law." F e d . R. Civ. P. 56(c). A factual dispute is "genuine" if it

c o u l d be resolved in favor of either party, and "material" if it p o t e n t i a l l y affects the outcome of the case. Calero-Cerezo v. U . S . Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004). The

m o v i n g party carries the burden of establishing that there is no g e n u i n e issue as to any material fact; however, the burden "may b e discharged by showing that there is an absence of evidence to s u p p o r t the nonmoving party's case." Celotex Corp. v. Catrett, 4 7 7 U.S. 317, 325, 331 (1986). The burden has two components:

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(1)

an

initial

burden

of

production,

which

shifts

to

the

n o n m o v i n g party if satisfied by the moving party; and (2) an u l t i m a t e burden of persuasion, which always remains on the moving p a r t y . Id. at 331. I n evaluating a motion for summary judgment, we must view t h e record in the light most favorable to the non-moving party. A d i c k e s v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, t h e non-moving party "may not rely merely on allegations or d e n i a l s in its own pleading; rather, its response must . . . set o u t specific facts showing a genuine issue for trial." C i v . P. 56(e)(2). III. Analysis A. A D A Claims 1. D i s a b i l i t y Discrimination argue, inter alia, that Plaintiff is not a Fed. R.

Defendants

q u a l i f i e d individual with a disability under the ADA because he w a s unable to perform the essential functions of his job, picking a n d retrieving stocked merchandise. (Docket No. 30.) The parties dispute whether "picking and retrieving" merchandise was an

e s s e n t i a l function of Plaintiff's job. (See Docket Nos. 30, 40.)

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The

ADA

prohibits

discrimination

against

a

"qualified

i n d i v i d u a l with a disability because of the disability of such i n d i v i d u a l in regard to . . . discharge . . . and other terms, c o n d i t i o n s , and privileges of employment." 42 U.S.C. § 12112(a). T o establish a claim for an adverse employment action under the A D A , a plaintiff must prove that he was (1) disabled under the ADA, but (2) "able to perform, with or without reasonable

a c c o m m o d a t i o n , the essential functions of her job," and (3) " d i s c h a r g e d or adversely affected, in whole or in part, because o f her disability." Orta-Castro v. Merck, Sharp & Dohme Quimica

P . R . , Inc., 447 F.3d 105, 111 (1st Cir. 2006). A qualified individual under the ADA is one "able to perform essential functions of the position with or without

r e a s o n a b l e accommodation."

Ward v. Mass. Health Research Inst.,

I n c . , 209 F.3d 29, 33 (1st Cir. 2000). An "essential function" i s a "fundamental job dut[y] of the employment position the i n d i v i d u a l with the disability holds or desires." 29 C.F.R. § 1 6 3 0 . 2 ( n ) ( 1 ) . To determine whether a particular job requirement i s an essential function, a court must conduct a fact-intensive inquiry and consider numerous factors, including (1) the

e m p l o y e r ' s view of job requirements; (2) written job descriptions p r e p a r e d prior to hiring; (3) the length of time spent performing

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this

function;

(4)

the

consequences

of

not

requiring

the

f u n c t i o n ; (5) work experience of past incumbents in the job; and ( 6 ) work experience of current incumbents in similar positions. S e e C.F.R. § 1630.2(n)(3); see also Ward, 209 F.3d at 34-35. The employer, who is better positioned to produce the relevant

e v i d e n c e , bears the burden of demonstrating that a given job function omitted). is essential. See Ward, 209 F.3d at 35 (citations

"[E]vidence that accommodations were made so that an

e m p l o y e e could avoid a particular task `merely shows the job could be restructured, not that [the function] was non-

e s s e n t i a l . ' " Phelps v. Optima Health, Inc., 251 F.3d 21, 26 (1st C i r . 2001) (quoting Basith v. Cook County, 241 F.3d 919, 930 (7th C i r . 2001)). D e f e n d a n t s have produced a written job description for the w a r e h o u s e material handler position, which includes "stock[ing] a n d pick[ing] merchandise" on a list of essential job functions. ( D o c k e t No. 29-5.) description to all Vega testified that Sears provided the job new employees upon hiring, and later if

r e q u e s t e d . (Docket No. 35-2.) She further explained that the job d e s c r i p t i o n does not change unless the position is changed. (Id.) G o n z á l e z testified that while at any given time a warehouse m a t e r i a l handler might not be required to perform all of the

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l i s t e d functions, he or she could be called upon at any time to p e r f o r m those functions depending on Sears's needs. (Docket Nos. 3 5 - 5 , 35-6.) Accordingly, Sears required that employees in that p o s i t i o n be capable of performing all of the described functions. ( S e e id.) P l a i n t i f f testified that, prior to his treatment and since h e began working in the warehouse in 2003, his job consisted of p i c k i n g and retrieving merchandise using a cherry picker and manually Plaintiff loading pallets. a form (Docket No. 35-4.) by Bravo In May 2006, a

submitted

completed

requesting

r e a s o n a b l e accommodation involving a reassignment to another p o s i t i o n that did not require him to lift heavy objects or be e x p o s e d to heights. (Docket No. 29-20.) Plaintiff does not

d i s p u t e that he was unable to perform the task of picking and r e t r i e v i n g merchandise once he began treatment. Instead, Sears a l l o w e d him to stock merchandise using a Hyster machine which l i f t s pallets up and places them on the upper shelves of the w a r e h o u s e while the operator remains seated. (Docket No. 35-4.) Plaintiff does not suggest what he believes are the

e s s e n t i a l functions of his position, offer any evidence to rebut Sears' evidence or demonstrating that he that was picking capable, is with an essential without

function,

argue

or

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a c c o m m o d a t i o n , of picking and retrieving merchandise. Plaintiff's arguments unavailing. that (See Defendant's Docket No. evidence 40.) is contradictory these are

Beyond

assertions,

P l a i n t i f f claims only that, because Sears allowed him to stock m e r c h a n d i s e rather than pick and retrieve merchandise during his t r e a t m e n t , his job could be restructured. (See id.) However, the

F i r s t Circuit rejected this argument in Phelps. See 251 F.3d at 26. The fact his that Sears restructured does not Plaintiff's that job to and

accommodate

treatment

prove

picking

r e t r i e v i n g merchandise was not an essential function. Without any other evidence, Plaintiff has failed to

Cf. id. show a

t r i a b l e issue of fact regarding his essential job functions. A c c o r d i n g l y , Plaintiff is not a qualified individual under the A D A , see Ward, 209 F.3d at 33, and we must grant summary judgment for Defendants on Plaintiff's ADA disability discrimination

c l a i m s . As we grant summary judgment for Defendants on this g r o u n d , we need not address their other arguments regarding d i s a b i l i t y discrimination. 2. F a i l u r e to Accommodate

D e f e n d a n t s argue that they are entitled to summary judgment o n Plaintiff's failure to accommodate claim because Sears in fact p r o v i d e d Plaintiff with the accommodation he requested. (Docket

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No.

30.)

Plaintiff

does

not

dispute

Defendants'

motion

for

s u m m a r y judgment on this issue and, in fact, concedes that he received a reasonable accommodation during his treatment.

( S e e Docket No. 40.)

We, therefore, grant summary judgment in

f a v o r of Defendants on Plaintiff's failure to accommodate claim. 3. The Retaliation ADA prohibits retaliation "against any individual

b e c a u s e such individual has opposed any act or practice made unlawful by this chapter." 42 U.S.C. § 12203(a). "An ADA

p l a i n t i f f may assert a claim for retaliation even if [he] fails t o succeed on a disability claim." Freadman v. Metro. Prop. &

C a s . Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007). In the absence o f direct evidence, as here, a plaintiff must make a prima facie showing of retaliation by showing that (1) he engaged in

p r o t e c t e d conduct, (2) he suffered an adverse employment action, a n d (3) there was a causal connection between the protected c o n d u c t and the adverse employment action. See Wright v. CompUSA, I n c . , 352 F.3d 472, 478 (1st Cir. 2003). In some circumstances, " t h e causation element may be established by evidence that there w a s a temporal proximity between" the protected conduct and the

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e m p l o y m e n t action. Quiles-Quiles v. Henderson, 439 F.3d 1, 8 (1st C i r . 2007). O n c e a plaintiff establishes the prima-facie case, "the burden shifts to the employer `to articulate a legitimate,

n o n d i s c r i m i n a t o r y reason for its employment decision.'" Wright, 3 5 2 F.3d at 478 (quoting Mesnick v. Gen. Elec. Co., 950 F.2d

8 1 6 , 827 (1st Cir. 1991)). If the employer does so, the burden s h i f t s back to the plaintiff to show that the proffered reason i s mere pretext for retaliation. Id. "[W]here a plaintiff . . . m a k e s out a prima facie case and the issue becomes whether the employer's stated nondiscriminatory must be reason is a pretext for

discrimination,

courts

particularly

cautious

about

g r a n t i n g the employer's motion for summary judgment." Billings v . Town of Grafton, 515 F.3d 39, 55-56 (1st Cir. 2008) (quoting H o d g e n s v. Gen. Dynamics Corp., 144 F.3d 151, 161 (1st Cir. 1998)). R e q u e s t i n g an accommodation constitutes protected conduct u n d e r the ADA's retaliation provision. Freadman, 484 F.3d at 106. It is undisputed that Sears suspended and later discharged

P l a i n t i f f , and that these constituted adverse employment actions. W e consider the suspension and the termination in turn.

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a.

Suspension

D e f e n d a n t s argue that Plaintiff has failed to show a causal c o n n e c t i o n between his protected conduct and the suspension. ( D o c k e t No. 30.) Plaintiff submitted HCPCs requesting reasonable a c c o m m o d a t i o n s on May 8, 2007, and July 10, 2007. Sears suspended P l a i n t i f f shortly thereafter on July 24, 2007. Moreover, it is u n d i s p u t e d that Plaintiff's supervisors informed him that he was b e i n g suspended so that they could clarify information in his reasonable proximity admission accommodation between by his request. We find that the temporal this for a

Plaintiff's supervisors,

requests, is

coupled

with

sufficient

evidence

r e a s o n a b l e jury to find a causal connection between the requests a n d the suspension. D e f e n d a n t s do not articulate a justification for Plaintiff's s u s p e n s i o n in response to his claim for retaliation. (See Docket N o s . 30, 50.) Nonetheless, we consider the reason articulated by D e f e n d a n t s in response to Plaintiff's disability discrimination c l a i m s . (See Docket No. 30.) Defendants state that they suspended P l a i n t i f f in order to evaluate whether his emotional condition made him a threat to others due to the irritability and

" e m o t i o n a l liability" Bravo noted on the May 2007 HCPC, and

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b e c a u s e of Bravo's affirmative notations on the HCPCs related to t h e risk assessment question. (Docket No. 30; see Docket Nos. 292 0 , 29-28.) D r a w i n g all inferences in Plaintiff's favor, however, we b e l i e v e a jury could find this assertion to be pretext. First, t h e HCPC form links the risk assessment question to an attached d e s c r i p t i o n of the patient's present position. (See id.) In other w o r d s , the form appears to ask only whether the individual poses a risk in his current position, and Bravo's notations suggest that Plaintiff would not pose the potential risk with the

a c c o m m o d a t i o n s requested. For example, Plaintiff would not be at r i s k for falling if he was not exposed to heights. S e c o n d , as Plaintiff notes, Defendants did not suspend him after he submitted the May 2006 form containing Bravo's

a f f i r m a t i v e response to the risk assessment question (Docket No. 2 9 - 2 0 ) , nor did Defendants choose to suspend him after Bravo w r o t e that he could be a risk due to "emotional liability" on the M a y 2007 form (Docket No. 29-28). It was not until after Bravo c l a r i f i e d that Plaintiff was not a risk to others on the July 2 0 0 7 form (Docket No. 29-32) that Defendants suspended Plaintiff t o allegedly investigate the risk posed by his emotional state. W e agree with Plaintiff that these discrepancies raise a triable

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i s s u e of fact as to whether his suspension was motivated by r e t a l i a t i o n . See Billings, 515 F.3d at 55-56 ("One way to show pretext is through `such weaknesses, or implausibilities, in the

inconsistencies,

incoherencies,

contradictions

e m p l o y e r ' s proffered legitimate reasons for its action that a r e a s o n a b l e factfinder could rationally find them unworthy of c r e d e n c e . . . .'" (quoting Hodgens, 144 F.3d at 168)). b. Discharge

D e f e n d a n t s argue that Plaintiff has failed to point to any e v i d e n c e suggesting a causal connection between his EEOC charge a n d his discharge. (Docket No. 30.) D e f e n d a n t s became aware that Plaintiff had filed the EEOC c h a r g e on August 15, 2007, but the discharge did not occur until n e a r l y four months later, on November 8, 2007. Plaintiff, thus, c a n n o t rely on temporal proximity to create an inference of causation, see Calero-Cerezo, 355 F.3d at 25, and he has

s u g g e s t e d no other theories supporting such an inference. P l a i n t i f f seems to assert that the fact that most of the r e p r i m a n d s he received took place after his first request for reasonable accommodation shows that the reprimands and the

u l t i m a t e discharge were all motivated by retaliatory animus. (See

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Docket

No.

40.)

While

it

is

true

that

"[e]vidence

of

d i s c r i m i n a t o r y or disparate treatment in the time period between t h e protected activity and the adverse employment action can . . . show a causal connection," Chungchi Che v. Mass. Bay Trans. A u t h . , 342 F.3d 31, 38 (1st Cir. 2003), Plaintiff fails to point t o any evidence that the reprimands reflect some discriminatory a n i m u s or disparate treatment. there was a causal nexus Without more, we cannot find that Plaintiff's requests for

between

a c c o m m o d a t i o n or EEOC charge and his discharge. B. L a w 44 B e c a u s e Law 44 is coterminous with the ADA's discrimination a n d reasonable accommodation provisions, our reasoning above a p p l i e s to Plaintiff's claims for disability discrimination under L a w 44, and we grant summary judgment for Defendants on these c l a i m s . See Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 87 ( 1 s t Cir. 2008). C. L a w 115 Law 115 provides that an employer may not discriminate

a g a i n s t an employee for offering or attempting to offer "any testimony, expression or information before a legislative,

a d m i n i s t r a t i v e or judicial forum." 29 L.P.R.A. § 194a. Law 115

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d o e s not prohibit retaliation in response to internal complaints, only offerings to a judicial forum. Id.; Hoyos v. Telecorp

C o m m c ' n s . , 405 F. Supp. 2d 199, 207 (D.P.R. 2005). To prove l i a b i l i t y under Law 115, an employee must first establish a p r i m a - f a c i e case by showing that she participated in a protected a c t i v i t y and was subsequently discharged. 29 L.P.R.A. § 194a(c). N e x t , the employer must offer a legitimate, non-discriminatory r e a s o n for the discharge. Id. Finally, the plaintiff may prevail b y demonstrating that the alleged reason is a "mere pretext for t h e discharge." Id.

D e f e n d a n t s do not dispute that filing a charge with the E E O C , filing a complaint with PROSHA, and offering testimony to the police in a criminal investigation constitute protected

a c t i v i t y . It is further undisputed that Defendants discharged Plaintiff. These facts establish Plaintiff's prima-facie case.

S e e 29 L.P.R.A. § 194a(c). D e f e n d a n t s have stated that Plaintiff's discharge was a result of repeated and reprimands threats he received his for acts of and

insubordination

towards

supervisors

c o w o r k e r s . To show pretext, Plaintiff has introduced evidence c h a l l e n g i n g the truth of the reprimands and the factual scenarios i n v o l v e d in the alleged incidents.

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P l a i n t i f f has failed to show that the reprimands constituted p r e t e x t for retaliation on the basis of his PROSHA complaints b e c a u s e the evidence he has introduced does not demonstrate c a u s a t i o n . (See Docket Nos. 38, 40.) Plaintiff apparently filed

t w o complaints with PROSHA regarding safety concerns at Sears, b u t the letters from PROSHA to Sears and to Plaintiff show that P l a i n t i f f ' s identity as a complainant was kept confidential. P l a i n t i f f , therefore, cannot show that Defendants knew he had f i l e d the complaints. P l a i n t i f f has also failed to show causation arising from his E E O C charge. Defendants became aware Plaintiff had filed the c h a r g e on August 14, 2007, but he was not discharged until nearly f o u r months later. Plaintiff has not pointed to any evidence s u g g e s t i n g a causal connection between these events, or that the d i s c h a r g e was motivated by his filing of the charge. O n the other hand, Plaintiff has introduced evidence that he p r o v i d e d testimony to the police in a criminal investigation less t h a n one month before his termination, and that he informed Vega o f his allegations the day before Defendants discharged him. We f i n d that, if proven at trial, a reasonable jury could determine that this very close proximity, combined with Plaintiff's

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c h a l l e n g e s to Defendant's proffered reason for the discharge, d e m o n s t r a t e pretext for retaliation. D. L a w 80 L a w 80, Puerto Rico's wrongful termination statute, entitles a n employee discharged from employment without just cause to s e v e r a n c e pay from his former employer. 29 L.P.R.A. § 185a. Under Law 80, an employee bears the initial burden of alleging Álvarez

u n j u s t i f i e d dismissal and proving actual dismissal.

F o n s e c a v. Pepsi Cola of P.R., 152 F.3d 17, 28 (1st Cir. 1998). O n c e the employee does so, the burden shifts to the employer to p r o v e that it discharged the employee for just cause. Id.

I t is undisputed that Defendants terminated Plaintiff from h i s employment with Sears. Defendants submit evidence of multiple e x a m p l e s of occasions where Plaintiff received reprimands for insubordination Plaintiff, in and inappropriate proffers conduct in the and workplace. evidence

response,

testimony

c h a l l e n g i n g most of these reprimands as unwarranted or falsified, i n c l u d i n g the final incident that allegedly precipitated his termination. regarding There remain Law triable 80 issues of material fact

Plaintiff's

claims;

accordingly,

summary

j u d g m e n t on this claim is unwarranted.

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IV. Conclusion F o r the reasons stated herein, we hereby GRANT Defendant's m o t i o n for summary judgment IN PART and DENY it IN PART (Docket No. 29). We DISMISS Plaintiff's claims for disability

d i s c r i m i n a t i o n , failure to accommodate, and retaliatory discharge u n d e r the ADA, his Law 44 claims, and his Law 115 claims relating to his EEOC charge and PROSHA complaints. Remaining are

P l a i n t i f f ' s claims for retaliatory suspension under the ADA, r e t a l i a t o r y discharge under Law 115 arising from his testimony t o the Puerto Rico police, and wrongful termination under Law 80. T h e parties are strongly encouraged to exhaust all settlement p o s s i b i l i t i e s before proceeding to trial. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 10 t h day of August, 2009. s / J o s é Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge