Algarin v. Potter et al

Filing 49

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 26 MOTION for Summary Judgment filed by John E. Potter. We DISMISS Plaintiff's claim of age discrimination, but we RETAIN Plaintiff's retaliation claim. Signed by Chief Judge Jose A Fuste on 1/19/10.(mrj)

1 2 3 4 5 6 7 D E N N IS ALGARÍN, P la in tif f , v. J O H N E. POTTER, D e f e n d a n t.

U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO

C i v il No. 08-2354 (JAF)

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O P I N IO N AND ORDER P la in tif f , David Algarín, brings the present action under the federal-sector provision of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a(a), against Defendant, U .S . Postal Service Postmaster General John E. Potter. (Docket No. 1.) Defendant moves for s u m m a ry judgment (Docket No. 26), and Plaintiff opposes (Docket No. 34). I. F a c tu a l and Procedural History W e derive the following factual and procedural summary from the parties' pleadings, m o tio n s, exhibits, and statements of uncontested facts. (Docket Nos. 1; 15; 26; 27; 28; 32; 34; 3 7 ; 38; 41.) We briefly state here only those facts material to the motion at hand. P la in tif f , born January 9, 1950, worked during all times relevant to this case as a c u sto m e r-s e rv ice s supervisor for the U.S. Postal Service. In 2001, Plaintiff's supervisor, Israel O rtiz , awarded Plaintiff for excellence in his work. In 2002, Plaintiff applied for a promotion,

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to Loíza postmaster, but was not selected. Following that decision, on August 31, 2002, P la in tif f sought Equal Employment Opportunity ("EEO") counseling, alleging that the deciding o f f ic ia l, Joshua Quiñones, had discriminated against him on the basis of sex and age. He again so u g h t counseling on August 10, 2003, this time alleging that Ortiz had discriminated against h im on the basis of sex and age. T h e episode of alleged retaliation that instigated the present suit began around September 2 0 0 3 , when Plaintiff again applied to fill the Loíza postmaster position. Raymond Simonetti, w h o eventually was selected for the job, also applied; he and Plaintiff are the same age and held th e same position, but Simonetti had fewer years of experience. Both were recommended by a reviewing committee and advanced to the group of four finalists for the position. The s e le c tin g official was Quiñones. On December 15, 2003, Quiñones offered the position to S im o n e tti, who accepted. Q u iñ o n e s reported that he selected Simonetti over Plaintiff because Plaintiff, unlike S im o n e tti, had been the target of employee complaints and had a history of trouble with s u p e rv is o rs . But Plaintiff submits evidence that Simonetti, too, had been the target of

d is c ip lin a ry letters and that Quiñones most likely knew about them before he selected Simonetti. ( S e e Docket No. 32-5.) The evidence also shows that during the selection process, Quiñones s o u g h t the advice of Ortiz, who did not recommend Plaintiff for the position. Ortiz told Q u i ñ o n e s at that time that Plaintiff had a history of filing grievances and suits against

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s u p e rv is o rs , activity that Ortiz thought "disloyal". Quiñones reported that he relied heavily on O rtiz ' opinion when he made his decision. O n February 9, 2004, Plaintiff contacted an EEO counselor alleging that Quiñones' d e c is io n denying him the Loíza postmaster position was retaliation for his prior EEO activity. H e filed a formal complaint to that effect on June 14, 2004. Plaintiff exhausted his retaliation c la im through the administrative process and was ultimately unsuccessful. (See Docket No. 28 at 5-6.) O n December 3, 2008, Plaintiff filed suit in this court. (Docket No. 1.) Defendant m o v e d for summary judgment on October 16, 2009. (Docket No. 26.) Plaintiff responded (D o c k e t No. 34); Defendant replied to that response (Docket No. 37); and Plaintiff surreplied to that reply (Docket No. 41). II. S u m m a r y Judgment Under Rule 56(c) W e grant a motion for summary judgment "if the pleadings, the discovery and disclosure m a ter ials on file, and any affidavits show that there is no genuine issue as to any material fact a n d the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual d is p u te is "genuine" if it could be resolved in favor of either party and "material" if it potentially a f f e c ts the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2 0 0 4 ) . In evaluating a motion for summary judgment, we view the record in the light most f a v o ra b le to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

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T h e movant carries the burden of establishing that there is no genuine issue as to any m a te r ia l fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party has m a d e a preliminary showing that no genuine issue of material fact exists, the nonmovant must `p ro d u c e specific facts, in suitable evidentiary form, to establish the presence of a trialworthy is s u e .'" Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (quoting Triangle Trading Co. v . Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)). The nonmovant "may not rely merely on a lle g a t io n s or denials in its own pleading; rather, its response must . . . set out specific facts s h o w in g a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). III. A n a l y s is D ef en d an t argues that he is entitled to summary judgment because Plaintiff neither e x h a u ste d his administrative remedy as to his claim of age discrimination nor can establish a p rim a -f a cie case for age discrimination. (Docket No. 27.) Defendant further argues that, having n o viable age-discrimination claim, Plaintiff cannot succeed on his claim for retaliation. (Id.) W e address each argument in turn, noting at the outset that a claim of discrimination on the b a sis of age and a claim of retaliation for ADEA-protected activity are two separate claims. See G o m e z -P e re z v. Potter, 128 S. Ct. 1931, 1943 (2008) (contemplating separate claims). A. P la in tiff's Age-Discrimination Claim In his complaint, Plaintiff alleges age discrimination under the ADEA, claiming that D e f en d a n t selected "a younger, less qualified person" for the Loíza postmaster promotion. (See

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D o c k e t No. 1 at 7-8.) But in his opposition to summary judgment, and surreply to Defendant's re sp o n s e to same, Plaintiff effectively refines his claim to be solely one of retaliation. (See D o c k e t No. 34 at 13 (decrying Defendant's mischaracterization of Plaintiff's claim as one of "su b stan tiv e age discrimination"); 41 at 2-5 (same); id. at 4 ("This case is not about whether M r . Simonetti was much younger that [sic] Mr. Algarín, it is about whether Mr. Algarín was d en ied the promotions because he was filing `grievances' and `suits' based on age and other r e a so n s . . . ." (emphasis in original)).) We, thus, conclude that Plaintiff has abandoned his c la im of discrimination on the basis of age, and we decline to consider same. Cf. Schneider v. H a rris o n Elec. Workers Trust Fund, 382 F. Supp. 2d 261, 263 (D. Mass. 2005) (dismissing E R IS A claim that the court found abandoned by plaintiff during summary judgment), aff'd, S c h n e id e r v. Local 103 I.B.E.W. Health Plan, 442 F.3d 1, 2 (1st Cir. 2006). B. R eta lia tio n Under § 633a(a) T h e ADEA proscribes an employer's retaliation against an employee who "invoke[s] the s ta tu te 's protections." Ramirez Rodriguez v. Boehringer Ingelheim Pharms., Inc., 425 F.3d 67 ( 1 s t Cir. 2005) (discussing 29 U.S.C. § 623(d)); see Gomez-Perez, 128 S. Ct. at 1936 (re c o g n iz in g that said proscription applies to claims filed under 29 U.S.C. § 633a). To establish a prima-facie case of retaliation, a plaintiff must show that "(i) he engaged in ADEA-protected c o n d u c t, (ii) he was thereafter subjected to an adverse employment action, and (iii) a causal c o n n e c tio n existed between the protected conduct and the adverse action." Ramirez Rodriguez, 4 2 5 F.3d at 84 (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991)).

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O n c e the plaintiff establishes a prima-facie case, the burden shifts to the employer to p ro f f er a nondiscriminatory reason for the adverse action. Id. If the employer does so, the p lain tiff then must show that the employer's reason is "pretext masking retaliation." Id. At that p o in t, the court considering summary judgment must determine "whether the aggregate e v id e n c e of pretext and retaliatory animus suffices to make out a jury question." Id. (quoting M e s n ic k , 950 F.2d at 827). D e f en d a n t makes no argument regarding the sufficiency of Plaintiff's prima-facie case o f retaliation (see Docket Nos. 27; 37); he instead argues that Plaintiff's retaliation claim must f a il due to the failure of his age-discrimination claim (Docket No. 27 at 5). In so arguing, D e f e n d a n t misapplies Franceschi v. U.S. Department of Veterans Affairs, 514 F.3d 81 (1st Cir. 2 0 0 8 ) , wherein the First Circuit discussed the permissibility of entertaining retaliation claims th a t were not exhausted during administrative proceedings. There, the court found that while a plaintiff need not have exhausted his retaliation claim, so long as he exhausted an underlying d is c rim in a tio n claim, that "bootstrapped" retaliation claim cannot survive where the underlying c la im itself is dismissed for failure to exhaust. Franceschi, 514 F.3d at 86-87. That finding is in a p p o site to the case at hand, as Plaintiff's retaliation claim is not bootstrapped; Plaintiff e x h a u ste d his retaliation claim before the EEOC (see, e.g., Docket No. 28-4). Here, instead, we a p p ly clear First Circuit precedent that a retaliation claim does not depend on the viability of an u n d e rlyin g discrimination claim. See, e.g., Ramirez Rodriguez, 425 F.3d at 84 n.20 ("It is not

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e ss e n tia l to a plaintiff's prima facie case [of retaliation for ADEA-protected activity] that the u n d e rlyin g conduct actually constitute an ADEA violation."). A p p lyin g the proof structure laid out in Rodriguez Ramirez, and despite Defendant's f a i lu re to address the issue, we now consider whether Plaintiff has presented "evidence from w h ic h a reasonable jury could infer that the employer retaliated against him for engaging in A D E A -p ro te c te d activity." Mesnick, 950 F.2d at 828; see id. at 828-29 (discussing evidence o f retaliation sufficient to survive summary judgment). First, we find that Plaintiff can establish a prima-facie case of discrimination. Plaintiff filed an ADEA complaint, see, e.g., Fantini v. S a le m State College, 557 F.3d 22, 32 (1st Cir. 2009) (deeming formal and informal complaints o f Title VII discrimination statutorily-protected activity);1 he thereafter suffered an adverse e m p lo ym e n t action when he was refused the Loíza postmaster promotion, see White v. N.H. D e p 't of Corr., 221 F.3d 254, 262 (1st Cir. 2000) ("Adverse employment actions include . . . re f u sa ls to promote . . . ." (internal quotation marks omitted)); and record evidence suggests that Q u iñ o n e s denied Plaintiff's promotion in retaliation for Plaintiff's earlier complaint.2 Next, we

As to ADEA-protected activity that serves as the trigger for alleged retaliation, a plaintiff "must demonstrate only that [he] had a good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Fantini, 557 F.3d at 32 (internal quotation marks omitted). Defendant in this case does not claim that Plaintiff filed the relevant EEO complaints in bad faith. We note for the sake of clarity that while Fantini was a Title VII suit, the same analysis applies in the ADEA context. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 n.9 (1st Cir. 1996) ("The analytical framework for ADEA discrimination and retaliation cases was patterned after the framework for Title VII cases, and our precedents are largely interchangeable.") To explain this finding, we need only reference Ortiz' deposition, which describes the impression of Plaintiff that heavily influenced Quiñones' decision: "[H]e's a constant complainer,
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f in d that Defendant has offered a nondiscriminatory reason for the decision not to promote P la in tif f , namely that Plaintiff had trouble with employees and supervisors alike. See supra P a rt I. Finally, we find that plaintiff has presented evidence sufficient to support a reasonable ju ro r' s inference that Defendant's reason is pretextual.3 Considering the evidence as a whole, w e conclude that Plaintiff meets the Mesnick standard, supra, for surviving summary judgment o n his retaliation claim. IV . C o n c lu s io n F o r the reasons stated herein, we GRANT IN PART and DENY IN PART Defendant's m o tio n for summary judgment (Docket No. 26). We DISMISS Plaintiff's claim of age d is c rim in a tio n , but we RETAIN Plaintiff's retaliation claim. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 19 th day of January, 2010. s /J o s é Antonio Fusté J O S E ANTONIO FUSTE C h ie f U.S. District Judge

didn't get along with anybody, filing grievances, suits everywhere you go, you know? To me, that's disloyal." (Docket No. 38-6 at 3.) This supports the inference that retaliation motivated the adverse employment action in this case. See DeCaire v. Mukasey, 530 F.3d 1, 20 (1st Cir. 2008) ("[T]he protesting of illegal discrimination is protected by law and cannot be a basis for a loyalty test."). For example, Quiñones claimed that he selected Simonetti over Plaintiff because Simonetti experienced no conflict with employees or supervisors. See supra Part I. But Plaintiff's evidence shows that distinction illusory. Id. This calls into question the distinction that Quiñones claims drove his decision, leaving room for the inference that his decision was retaliatory.
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