Alvarado v. Potter
Filing
48
OPINION AND ORDER re 23 Motion for Summary Judgment. Defendant's motion for summary judgment is GRANTED. This case is DISMISSED with prejudice. Judgment shall be entered accordingly. The Jury Trial scheduled to commence on 5/9/2011 is vacated and set aside. Signed by Judge Francisco A. Besosa on 05/04/2011. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ALEX ALVARADO,
Plaintiff,
v.
JOHN
E.
GENERAL,
CIVIL NO. 09-1346 (FAB)
POTTER,
POSTMASTER
Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Pending before the Court is defendant John E. Potter’s motion
for summary judgment (Docket Nos. 23 and 25), which plaintiff Alex
Alvarado (“Alvarado”) opposed (Docket No. 29).
Defendant filed a
reply to plaintiff’s opposition (Docket No. 41).
I.
Statement of Uncontested Facts
Plaintiff Alvarado began working with the United States Postal
Service in 1991.
(Docket No. 24-2 at 5-12.)
In 2000, he began to
work full time as a letter carrier, 40 hours a week, 8 hours a day,
and on his own route.
(Docket No. 24-2 at 13-19.)
In 2002, his
work week was increased to 48 hours a week, and during the
Christmas holiday seasons from 2000 to 2008, plaintiff worked more
than 48 hours a week for two months each year.
Id.
At all times
Civil No. 09-1346 (FAB)
2
during the years 2000 to 2008, plaintiff was able to handle the job
of rural letter carrier.
Id.
Plaintiff worked with the Postal Service until February 16,
2008; after exhausting his annual and sick leave, he resigned on
April 29, 2008.
(Docket No. 24-2 at 5-12.)
Plaintiff applied for
U.S. Department of Labor Workmen’s Compensation benefits, which
were approved in May 2010 retroactively from February 16, 2008 to
September 25, 2010, netting him a lump sum of $79,507.
Id.
Alvarado also applied for and received Social Security benefits
effective August 2008.
Id.
In total, he will be receiving
approximately $3,600 per month, tax free.
Id.
Plaintiff has had a medical history of recurrent schizoaffective disorder since August 1992. (Docket No. 1.) He received
psychiatric treatment and medication, which were effective in
controlling the symptoms of his mental illness and allowed him to
perform
his
employment.
duties
Id.
as
a
rural
mail
carrier
throughout
his
Alvarado has been taking Zymbax and other
medication since he was 15 years old, the dosage of which has
increased throughout the years.
(Docket No. 24-2 at 23-27.)
He
claimed that the times he was late in delivering mail was because
of his medication.
Id. at 27.
Civil No. 09-1346 (FAB)
3
From 2007 to 2008, Alvarado was employed as a rural mail
carrier at the Bayamon Branch Station in Bayamon, Puerto Rico.
(Docket Nos. 24-1; 24-2 at 12.)
On January 23, 2007, Alvarado
requested an appointment with a dispute resolution specialist with
the Equal Employment Opportunity (“EEO”) office because of comments
that the president of the union of the mail carriers, Carmelo
Moyeno (“Moyeno”), made to him in November and December of 2006.
(Docket No. 30-2.)
Plaintiff’s claim, however, is for retaliation
and disability discrimination for events beginning April 19, 2007.
(Docket No. 24-2 at 20.)
On April 19, 2007, while Alvarado was
working at the post office and singing the song “En Mi Viejo San
Juan”, Moyeno said to Alvarado in front of his co-workers:
“Give
him the pill”; “He has not taken his pill”; “He needs his green,
yellow, red pill”; “Which pill hasn’t he taken?”. (Docket No. 24-2
at 20-21.) Also in 2007, plaintiff brought in some corn sticks for
his coworkers, and his supervisor, Ruben Maldonado (“Maldonado”),
mocked plaintiff by saying, “I am going to put you to work with
your family.”
(Docket No. 24-2 at 32-33.) Plaintiff understood
this comment to mean that Maldonado was going to dismiss plaintiff,
but such dismissal never occurred.
Id.
Plaintiff submitted Family Leave Act papers around July 2007.
Maldonado was aware of plaintiff’s medical conditions at that time.
Civil No. 09-1346 (FAB)
4
Plaintiff stated, however, that he could perform his duties of mail
delivery despite his mental condition and Maldonado was not aware
of
any
physical
or
mental
restrictions
plaintiff’s ability to perform his duties.
2.)
that would
impede
on
(Docket No. 24-5 at 1-
At the end of 2007, plaintiff’s supervisor, Armando Perez
(“Perez”), called plaintiff “crazy, crazy, you’re crazy” when
plaintiff showed Mr. Perez a Family Leave document.
In
2006
and
2007,
plaintiff’s
Id. at 34-35.
supervisor,
Jose
Colon
(“Colon”), subjected plaintiff to extra scrutiny and supervision.
Id. at 35-36.
In 2007 and 2008, plaintiff’s supervisor, Andrew
Zeisky (“Zeisky”), searched plaintiff’s private car for about 15-20
minutes.
Id. at 51-53.
Mr. Zeisky had a right to inspect
plaintiff’s vehicle because plaintiff used his private vehicle to
deliver mail.
Id.
On January 30, 2008, plaintiff did not arrive back at the post
office branch by 5:00 p.m., the official Postal Service closing
time, after delivering mail.
(Docket No. 24-2 at 27.)
At around
6:00 p.m., plaintiff’s supervisor, Brenda Rios (“Rios”), called
plaintiff’s cell phone because he had not returned to the branch.
Id. at 28.
recognize
Plaintiff did not answer his phone because he did not
the
phone
number,
so
Ms.
Rios
inquiring as to plaintiff’s whereabouts.
left
Id.
him
voicemail
Plaintiff did not
Civil No. 09-1346 (FAB)
5
call his supervisor to inform her that he would be late, but called
a co-worker, and returned to the postal office at 6:30 p.m.
at 28-30.
time-off
Id.
On February 6, 2008, plaintiff was issued a 14 day nosuspension
delivery.
for
improper
(Docket No. 33-2.)
conduct
and
delay
of
mail
The suspension related to an
incident that occurred on January 26, 2008.
Id.
Plaintiff’s
suspension was later reduced to a mere letter of warning, the
lowest level of disciplinary action.
30-8 at 1.)
(Docket Nos. 24-2 at 36-37;
On February 16, 2008, after a day’s work, around
6:00 p.m., plaintiff started to cry and felt humiliated as a result
of the January 30, 2008 incident with supervisor Rios. (Docket No.
24-2 at 38-44.)
On that date, plaintiff left the Postal Service
never to return to work.
Id.
Plaintiff was never discharged from
the Postal Service, nor did the Postal Service take away pay from
him.
Id. at 47-48.
On April 15, 2008, plaintiff filed a formal complaint of
discrimination
against
Moyeno,
Rios,
Awilda
Rodriguez
(“Rodriguez”), Armando Perez (“Perez”), and Maldonado.
No. 30-4.)
April 29,
(Docket
Plaintiff resigned from the Postal Service effective
2008,
after
exhausting
February 16, 2008 to April 29, 2008.
annual and
Id.
sick
leave
from
After his resignation,
plaintiff never went back to work and he is currently totally
Civil No. 09-1346 (FAB)
disabled to work.
6
(Docket No. 30 at 6-7.)
The Social Security
Administration found plaintiff totally disabled to work in August
2008.
Id. at 9-10.
Rios was not involved in plaintiff’s initial EEO activity from
January 23, 2007.
(Docket No. 24-4 at 2-3.)
Rios did not issue
the 14-day no-time-off suspension notice to the plaintiff.
at 4.
Id.
Plaintiff’s supervisor Rodriguez issued the suspension
notice, but Rios conducted the investigation that led to the
notice.
Id.
Rodriguez
was
a
customer
service
supervisor
temporarily assigned to the Bayamon branch from July 2007 to March
2008.
(Docket No. 24-8 at 1.)
Plaintiff’s supervisor Zeisky made
the decision to issue the suspension based on information he
received from Rios and Rodriguez.
(Docket No. 24-6 at 5.)
On May 30, 2008, plaintiff’s supervisor Colon received from
him a
Family
Medical
Leave
Act
(“FMLA”)
packet,
which
Colon
submitted to the FMLA Coordinator, Richard Gonzalez, who approved
it for a once-a-month treatment for three months. (Docket No. 24-7
at 2.)
Most of the conversations between Colon and Alvarado
centered on his delays in delivering mail on his route.
Id. at 3.
Supervisor Colon was not involved in plaintiff’s 14 day no-time-off
suspension.
Id.
Civil No. 09-1346 (FAB)
II.
7
Summary Judgment Standard
The court’s discretion to grant summary judgment is governed
by Rule 56 of the Federal Rules of Civil Procedure.
states, in
judgment
pertinent
only
if
interrogatories,
part,
“the
and
that
the
pleadings,
admissions
on
court
may
grant summary
depositions,
file,
Rule 56
answers
together
with
to
the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.”
Fed.R.Civ.P. 56(c); see also Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 52.
(1st Cir. 2000).
Summary judgment is appropriate if “there is no genuine issue
as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law.”
See Fed.R.Civ.P. 56(c).
The party
moving for summary judgment bears the burden of showing the absence
of a genuine issue of material fact.
See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
Once a properly supported motion has been presented, the
opposing party has the burden of demonstrating that a trial-worthy
issue exists that would warrant the court’s denial of the motion
for summary judgment.
For issues where the opposing party bears
the ultimate burden of proof, that party cannot merely rely on the
absence of competent evidence, but must affirmatively point to
Civil No. 09-1346 (FAB)
8
specific facts that demonstrate the existence of an authentic
dispute.
See Suarez v. Pueblo Int’l., Inc., 229 F.3d 49 (1st Cir.
2000).
In
order
for
a
factual
controversy
to
prevent
summary
judgment, the contested facts must be “material” and the dispute
must be “genuine”.
“Material” means that a contested fact has the
potential to change the outcome of the suit under governing law.
The issue is “genuine” when a reasonable jury could return a
verdict for the nonmoving party based on the evidence.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
See
It is
well settled that “[t]he mere existence of a scintilla of evidence”
is insufficient to defeat a properly supported motion for summary
judgment.”
Id. at 252.
It is therefore necessary that “a party
opposing summary judgment must present definite, competent evidence
to rebut the motion.”
Maldonado-Denis v. Castillo-Rodriguez, 23
F.3d 576, 581 (1st Cir. 1994).
In making this assessment, the court “must view the entire
record in the light most hospitable to the party opposing summary
judgment, indulging in all reasonable inferences in that party’s
favor.”
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).
The court may safely ignore, however, “conclusory allegations,
Civil No. 09-1346 (FAB)
9
improbable inferences, and unsupported speculation.”
Medina-Muñoz
v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
III. Discussion
A.
Discrimination under the Rehabilitation Act
Alvarado alleges that he suffered discrimination by his
supervisors on the basis of his disability in violation of the
Rehabilitation Act, 29 U.S.C. § 701 et seq.
The Rehabilitation
Act, like its more famous sister statute, the Americans with
Disabilities
otherwise
Act
(“ADA”),
qualified
disability.
prohibits
individual
on
discrimination
the
basis
of
against
his
or
an
her
As a general proposition, the case law construing the
ADA applies equally to claims raised under the Rehabilitation Act.1
1
Neither party mentions the fact that in September of 2008 Congress
enacted the ADA Amendments Act, which by its own terms went into effect
on January 1, 2009.
Pub.L. No. 110-325 (2008) (“ADA AA”).
The
overarching purpose of the act is to reinstate the “broad scope of
protection” available under the ADA and the Rehabilitation Act. Id. at
§§ 2(b), 7; see also Mastrolia v. Potter, No. 08-5967, 2010 WL 1752531,
at *3 (D.N.J. Apr. 27, 2010) (finding that “the ADA standards apply to
the Rehabilitation Act . . .”.) Among other things, the ADA AA rejects
the United States Supreme Court’s interpretation of the term disability
in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) and
Sutton v. United Air Lines, 527 U.S. 471, 492 (1999). Id. The Court
need not concern itself with the ADA AA, however, because the amendments
do not apply retroactively. See Carreras v. Sajo, Garcia & Partners, 596
F.3d 25, 33 (1st Cir. 2010); Fournier v. Payco Foods Corp., 611 F.Supp.2d
120, 129 n. 9 (D.P.R. 2009).
Civil No. 09-1346 (FAB)
10
Calero-Cerezo v. United States Department of Justice, 355 F. 3d 6,
19 (1st Cir. 2004).
Plaintiff Alvarado bears the initial burden of proving
each element of his claim for disability discrimination. Mendez v.
West, 177 F.Supp.2d 121, 125 (D.P.R. 2001).
To establish a prima
facie case of disability discrimination, or more specifically, for
failure to accommodate under the Rehabilitation Act, plaintiff
Alvarado must establish the following three elements:
suffered from
a
“disability”
within
the
meaning
(1) that he
of
the Act;
(2) that he was a qualified individual in that he was able to
perform the essential functions of his job, either with or without
a reasonable accommodation; and (3) that despite his employer’s
knowledge
of
his
disability,
the
employer
did
not
offer
a
reasonable accommodation for the disability. Calero-Cerezo, 355 F.
3d at 20; Lebron-Torres v. Whitehall Laboratories, 251 F.3d 236,
239 (1st Cir. 2001).
For the purposes of the ADA and the Rehabilitation Act,
a disability is either (1) a physical or mental impairment which
substantially limits one or more of an individual’s major life
activities; (2) a record of such an impairment; or (3) being
regarded as having such an impairment.
42 U.S.C. § 12102(2).
Alvarado argues that he actually suffered from a mental impairment
Civil No. 09-1346 (FAB)
that
substantially
11
limited
more
than
one
of
his
major
life
functions.
The determination of whether a plaintiff is disabled
under the Act must be made on a case-by-case basis.
Toyota Motor
Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).
The
analysis of whether plaintiff Alvarado has a disability within the
meaning of the statute depends upon three factors:
(1) whether he
suffered a physical or mental impairment; (2) whether a life
activity
limited
by
the
impairment
qualifies
as
major;
and
(3) whether the impairment substantially limited a major life
activity.
Calero-Cerezo, 355 F. 3d at 20.
The burden is on
plaintiff Alvarado to establish these three elements. Id. Alvarado
has successfully satisfied the first two elements, but he fails to
satisfy the third.
A mental or psychological disorder, including emotional
or mental illness, qualifies as a physical or mental impairment.
29 C.F.R. § 1630.2 (h)(2).
It is undisputed that Alvarado suffers
from a schizo-affective disorder, which qualifies as a mental
impairment.
Calero-Cerezo, 355 F.3d at 20 (recognizing that
depression is a mental impairment and may constitute a disability
under federal law in some circumstances); see Toledo v. Sanchez,
454 F.3d 24, 32 (1st Cir. 2006) (finding that plaintiff with
Civil No. 09-1346 (FAB)
12
schizo-affective disorder properly alleged that he had a mental
impairment).
Accordingly, Alvarado has easily shown that he has a
mental impairment.
Alvarado has also shown that his impairment affects a
“major” life activity.
The First Circuit Court of Appeals has
defined a major life activity as “an activity of central importance
to people’s daily lives.”
Calero-Cerezo, 355 F. 3d at 21 (citing
Toyota
at
Motor,
534
U.S.
197).
The
Calero-Cerezo
court
specifically noted that sleeping and working, the two activities
cited by
plaintiff
as
being
affected by
his
impairment,
are
recognized as major life activities for the purposes of the ADA.
Id.
Alvarado has been unable, however, to establish that any
of
the
alleged
major
life
activities
impairment are “substantially” limited.
affected
by
his
mental
The word substantially
means “considerable” or “specified to a large degree” but it should
“not be equated with utter inabilities.”
at 21 (internal citations omitted).
Calero-Cerezo, 355 F. 3d
In addition, “if a person is
taking measures to correct for, or mitigate a physical or mental
impairment,
the
effects
of
those
measures–both
positive
and
negative–must be taken into account when judging whether that
person is ‘substantially limited’ in a major life activity and thus
Civil No. 09-1346 (FAB)
‘disabled’ under the Act.”
13
Sutton v. United Airlines, Inc., 527
U.S. 471, 482 (1999) (“A person whose physical or mental impairment
is corrected by medication or other measures does not have an
impairment that presently [sic] ‘substantially limits’ a major life
activity.”).2
The Court briefly pauses from its analysis to determine
whether the documents submitted by plaintiff in support of his
claim that his major life activities were “substantially” limited
by his mental impairment are admissible evidence.
Plaintiff has
submitted a psychiatric report prepared by Dr. Fernando Cabrera,
plaintiff’s psychiatric expert, and a psychiatric evaluation report
prepared by Dr. Jaime Toro, who was chosen by the Postal Service to
perform a disability analysis on plaintiff while he was on medical
leave from work.
(Docket Nos. 30 at 24-25, 30-12, & 33-3).
In
defendant’s response to plaintiff’s statement of additional facts,
defendant alleged that the reports submitted by plaintiff are
2
The Court again notes that while the ADA AA, among other things,
rejects the United States Supreme Court’s interpretation of the term
disability as articulated in Sutton, the law is not retroactive. Because
the disputed activity here occurred before the law went into effect, the
law does not apply here. supra note 1. Thus, in determining whether
plaintiff is “substantially limited” in a major life activity and may be
considered “disabled” under the ADA and the Rehabilitation Act, the Court
takes into account the measures taken to correct for or mitigate
plaintiff’s mental impairment. See Sutton, 527 U.S. at 482.
Civil No. 09-1346 (FAB)
14
inadmissible evidence because they are hearsay and fail to comply
with the requirements of Rule 56(e), because they have not been
properly authenticated.
See Docket No. 38 at 1.
The First Circuit
Court of Appeals has held that “[t]o be admissible at the summary
judgment stage, documents must be authenticated by and attached to
an affidavit that meets the requirements of Rule 56(e).”
Carmona
v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000) (citations and
internal
quotation
marks
omitted).
Neither
of
plaintiff’s
psychiatric reports was submitted with an authenticating affidavit,
and thus, the reports are inadmissible for purposes of summary
judgment.
Castro-Medina v. Procter & Gamble Commercial Co., 565
F.Supp.2d 343, 360 n. 3 (D.P.R. 2008) (striking plaintiff’s expert
report prepared by a psychiatrist where it was submitted without an
authenticating affidavit).
A thorough review of the rest of the record reveals that
with the help of his medication and psychological treatment,
Alvarado can function without “substantial” limitations on his
major life activities. Alvarado claims that “[n]otwithstanding the
ameliorative
depression
effects
and
of
insomnia
medications,
had
his
persisted”
impairment is permanent [and] long-term.”
and
acute
that
symptoms
“his
of
mental
(Docket No. 29 at 9.)
The record has established, however, that although Alvarado has had
Civil No. 09-1346 (FAB)
15
a medical history of a recurrent schizo-affective disorder since
August 1992, his psychiatric treatment and medication were so
effective at controlling the symptoms of his illness “that he was
able to perform his duties as a Rural Carrier throughout his
employment.”
(Docket Nos. 24 at 1; 30 at 1.)
While plaintiff may
have been consistently late in delivering mail because of his
medication, he admits that he “was able to perform the essential
duties of his position of letter carrier because his symptoms were
under
control
by
psychiatric
(Docket No. 29 at 9.)
treatment
and
pharmacotherapy.”
Finally, plaintiff’s allegations that
stressful situations at work caused him restlessness during the
night and fatigue during working hours are not supported by the
record and do not rise to the level of “substantially” limiting his
Civil No. 09-1346 (FAB)
16
major life activities of working3 or sleeping4.
Accordingly, the
Court
Alvarado
must
hold
that,
pursuant
to
statute,
is
not
“substantially limited” in any of the alleged major life activities
affected by his mental impairment.
Based on the Court’s finding
that Alvarado is not “disabled” under the Rehabilitation Act, the
Court need not engage in a discussion of whether Alvarado was a
qualified individual or a victim of a hostile work environment.
Therefore, defendant’s motion for summary judgment on plaintiff’s
discrimination claim is GRANTED.
B.
Retaliation
Alvarado alleges that the Postal Service took retaliatory
actions against him because he engaged in the protected activity of
attempting to enforce his rights under Title VII.
In order to
3
See Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69,
84-85 (2nd Cir. 2000) (holding that plaintiff alleging disability must
prove that it is the impairment, “and not some other factor or factors,
that causes the substantial limitation”); Nyrop v. Independent School
Dist. No. 11, 616 F.3d 728, 735 (8th Cir. 2010) (finding no disability
despite appellant’s complaint of fatigue where conditions did not impair
appellant’s ability to care for herself); Weiler v. Household Finance
Corp., 101 F.3d 519, 524 (7th Cir. 1996) (“The major life activity of
working is not ‘substantially limited’ if a plaintiff merely cannot work
under a certain supervisor because of anxiety and stress related” to her
job).
4
See Colwell v. Suffolk County Police Dept., 158 F.3d 635, 644 (2nd
Cir. 1998) (plaintiff’s allegation that “he takes a medication as a sleep
aid and . . . usually get[s] a tough night’s sleep” was not sufficient
“to establish that the degree of limitation he suffers is substantial.”)
(internal quotation marks omitted).
Civil No. 09-1346 (FAB)
establish
a
prima
facie
17
case
plaintiff Alvarado must show:
of
retaliation
under
the
ADA,
(1) that he engaged in protected
conduct; (2) that he suffered an adverse employment action; and
(3) that there was a causal connection between the protected
conduct and the adverse employment action.
Carreras, 596 F.3d
at 35 (internal citations omitted.)
Alvarado’s specific allegations regarding his retaliation
claim are convoluted; he appears to have misstated relevant dates
in his statement of facts and opposition to defendant’s motion for
summary judgment.
Court
finds
the
Upon an independent review of the record, the
relevant
information
to
be
as
follows.
On
January 23, 2007, Alvarado requested a counseling appointment with
a dispute resolution specialist with the EEO office because of
comments that Moyeno had made to him in November and December of
2006.
(Docket
disputes,
that
No.
30-2.)
he
informed
Alvarado
alleges,
Maldonado
and
discrimination complaint on April 19, 2007.
at 2.)
and
Moyeno
defendant
of
his
(Docket No. 30-1
On April 15, 2008, plaintiff filed a formal complaint of
discrimination for disability and retaliation against Moyeno, Rios,
Rodriguez, Perez, and Maldonado for alleged acts which occurred
between April 19, 2007 and January 2008.
(Docket No. 30-4.)
Civil No. 09-1346 (FAB)
18
The Supreme Court has held that for a plaintiff to prove
that he or she suffered an adverse employment action, he or she
“must
show
that
a
reasonable
employee
would
have
found
the
challenged action materially adverse”, which is to say that “it
might well have dissuaded a reasonable worker from making or
supporting a charge of discrimination.”
Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal
quotation marks omitted).
The adverse employment action plaintiff
claims to have suffered is his constructive discharge caused by an
alleged intensification of his hostile working environment after he
filed his initial complaint in January 2007. (Docket No. 29 at 1824.)
Importantly, the Supreme Court has noted that a court need
only consider “the challenged retaliatory act, not the underlying
conduct that forms the basis of the Title VII complaint.”
Id.
at 69.
The Court considers the allegations made by plaintiff
after he made his initial complaint in January 2007 until the time
he resigned in April 2008.
Plaintiff alleges that during that
period of time he was subjected to jokes and ridicule by his
supervisors
and
colleagues.
He
further
alleges
that
he
was
subjected to extra scrutiny and supervision. Plaintiff claims that
on at least one occasion, his supervisor searched his private car
Civil No. 09-1346 (FAB)
19
for 15-20 minutes, but admits that the supervisor had a right to do
so, because plaintiff used his private car to deliver mail.
On
January 30, 2008, plaintiff alleges that he received an angry
voicemail from his supervisor because he was an hour and a half
late returning to the post office after closing time.
Plaintiff
admits he did not answer his phone when his supervisor called
because he did not recognize the number, and that he did not notify
a supervisor that he would be late.
On February 6, 2008, plaintiff
was issued a 14 day no-time-off suspension for improper conduct and
delay of mail delivery, which was later reduced to a mere letter of
warning,
the
lowest
level
of
a
disciplinary
action.
On
February 16, 2008, at around 6:00 p.m., plaintiff suffered a
nervous breakdown allegedly as a result of the January 30 incident
and left work, never to return again.
He formally resigned on
April 29, 2008, after exhausting his annual and sick leave.
The Court finds that the alleged harassment suffered by
plaintiff
does not
environment” claim.
give
rise
to
an
actionable
“hostile work
While proof of intensified harassment after
filing a complaint may support a claim of retaliation, it is wellsettled that “[a]n employee’s decision to report discriminatory
behavior cannot immunize that employee from those petty slights or
minor annoyances that often take place at work and that all
Civil No. 09-1346 (FAB)
employees experience.”
jokes
and
ridicule
20
Burlington Northern, 548 U.S. at 68.
experienced
by
plaintiff
may
The
have
been
insensitive and hurtful, but they do not objectively rise to the
level of a “hostile work environment.”
Cf. Quiles-Quiles v.
Henderson, 439 F.3d 1, 8-9 (1st Cir. 2006) (upholding jury’s
finding that a “hostile environment was motivated by a desire to
retaliate” where the harassment included “threats . . . screaming
tirades . . . and efforts . . . to interrupt [plaintiff’s] pursuit
of a union grievance.”); Noviello v. City of Boston, 398 F.3d 76,
93-94
(1st
Cir.
2005)
(finding
retaliatory
harassment
where
plaintiff was falsely accused of misconduct, subjected to “work
sabotage” and harassing insults, and endured “continued tormenting”
and physical threats.)
An employee’s perceptions and subjective
beliefs of discrimination “cannot govern a claim of constructive
discharge,
if,
and
to
the
extent
that,
the
perceptions
are
unreasonable.” Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 481 (1st
Cir.
1993).
supervisors,
Moreover,
both
in
the
terms
of
actions
the
taken
extra
by
plaintiff’s
scrutiny
plaintiff
experienced and the reaction of his supervisor to his extreme
tardiness and improper conduct, were entirely appropriate given the
circumstances and had a legitimate, non-discriminatory purpose. For
the reasons stated, plaintiff’s allegations do not rise to the
Civil No. 09-1346 (FAB)
21
level of intolerableness that would have compelled a “reasonable
worker” to resign.
See Burlington Northern, 548 U.S. at 68.
Therefore, defendant’s motion for summary judgment on plaintiff’s
retaliation claim and hostile environment claim is GRANTED.
C.
Conclusion
For the reasons stated above, defendant’s motion for
summary
judgment
prejudice.
is
GRANTED.
This
case
is
DISMISSED
with
Judgment shall be entered accordingly.
The Jury Trial scheduled to commence on May 9, 2011 is vacated
and set aside.
IT IS SO ORDERED.
San Juan, Puerto Rico, May 3, 2011.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
United States District Judge
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