colon-ortiz v. Geren

Filing 30

OPINION AND ORDER GRANTING 18 MOTION for Summary Judgment filed by Pete Geren. Judgment shall enter dismissing Plaintiff's complaint in its entirety. Signed by Chief Judge Jose A Fuste on 8/25/2010.(mrj)

Colon-Ortiz v. Geren

Doc. 30

UNITED STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO G L A D Y S COLÓN-ORTIZ, P la in tif f , v. S E C R E T A R Y OF THE ARMY, D e f e n d a n t.

C iv il No. 09-1525 (JAF)

O P I N I O N AND ORDER P la in tif f brought this action under Title VII of the Civil Rights Act ("Title VII"), 42 U .S .C . §§ 2000e to e-17, alleging discrimination on the basis of her national origin. (Docket N o . 1.) Defendant moves for summary judgment under Federal Rule of Civil Procedure 5 6 (c ). (Docket Nos. 18; 19; 20.) Plaintiff opposes (Docket Nos. 21; 22), and Defendant re s p o n d s (Docket No. 25). I. F a c tu a l Synopsis W e derive the following facts from the parties' motions, statements of material facts, a n d exhibits. (Docket Nos. 18; 19; 20; 21; 22; 25.) Plaintiff is currently employed by D e f e n d a n t as the Education Liaison and Outreach Services director at Fort Buchanan, in San J u a n , Puerto Rico. In June 2007, when she applied for this position, she lived in South Korea

Dockets.Justia.com

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w ith her husband. Defendant claims that she lived there under a visa status that precluded h e r from making South Korea her place of permanent residence. Defendant also maintains th a t Plaintiff's permanent residence was at all times Puerto Rico, where Plaintiff lived and w o rk e d for Defendant prior to having moved to South Korea. Plaintiff claims that at the tim e she applied for her current position, her permanent residence was South Korea. O n January 8, 2008, Plaintiff and Defendant completed a transportation agreement, w h ic h guaranteed Plaintiff particular benefits related to her move to Puerto Rico and which e x p i r e d on January 11, 2009. (See Docket Nos. 20-4; 21-3.) Plaintiff states that she was g u a ra n te e d those benefits for a minimum of two years. (Docket No. 21-1 at 1.) On N o v e m b e r 18, 2008, Plaintiff requested an extension of the transportation agreement, and D e f e n d a n t denied that request on November 28, 2008. Plaintiff claims that Defendant denied the extension because she is of Puerto Rican d e s c e n t. Defendant explains that she was denied the extension because her home of record w a s always Puerto Rico; as a permanent resident of Puerto Rico, Plaintiff was appointed to h e r current position as an employee returning to her home of record. As such, Defendant e x p la in s , she was always ineligible for a transportation agreement lasting beyond one year. Plaintiff counters that her home of record was South Korea when she applied for her current p o s itio n and that Defendant's determination that her home of record was Puerto Rico was b a s e d entirely on her national origin.

Civil No. 09-1525 (JAF) II. S u m m a r y Judgment Under Rule 56(c)

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W e grant a motion for summary judgment "if the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue as to any m a te ria l fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is "genuine" if it could be resolved in favor of either party and "material" if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 F .3 d 6, 19 (1st Cir. 2004). In evaluating a motion for summary judgment, we view the record in the light most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 1 5 7 (1970). T h e movant carries the burden of establishing that there is no genuine issue as to any m a te ria l fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party h a s made a preliminary showing that no genuine issue of material fact exists, the nonmovant m u s t `produce specific facts, in suitable evidentiary form, to establish the presence of a tria lw o rth y issue.'" Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (quoting Triangle T ra d in g Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)). The nonmovant "may not re ly merely on allegations or denials in its own pleading; rather, its response must . . . set out s p e c if ic facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).

Civil No. 09-1525 (JAF) III. A n a ly s is

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D e f e n d a n t argues that he is entitled to summary judgment because, inter alia,1 Plaintiff c a n n o t make the showings required to prevail on a Title VII claim, under a theory of either d is p a ra te treatment or disparate impact. (Docket No. 19 at 7­17.) A. D is p a r a te Treatment T o prove a claim of disparate treatment, a plaintiff must show that (1) she is a member o f a protected class; (2) she was qualified for the position and met her employer's e x p e c t a ti o n s ; (3) she suffered an adverse employment action; and (4) similarly-situated e m p l o ye e s outside the protected class received more favorable treatment. See Prescott v. H ig g in s , 538 F.3d 32, 41 (1st Cir. 2008). In this case, Plaintiff has made no showing of more favorable treatment of a similarly s itu a te d non­Puerto Rican. The closest she comes is stating via affidavit that "Ms. Kathleen H a m b u rg transferred from Germany to Puerto Rico on a two year transportation agreement." (Docket No. 21-1 at 2.) This falls far short of establishing that Ms. Hamburg is both outside th e protected class and situated similarly to Plaintiff. In addition, Plaintiff fails to establish

Defendant advances two additional arguments for summary judgment in his favor: (1) Plaintiff failed to contact her EEOC counselor within forty-five days of the alleged adverse employment action; and (2) Plaintiff cannot obtain compensatory damages via this lawsuit because she failed to request same before the EEOC. (Docket No. 19 at 17­24.) Each pertains to Plaintiff's exhaustion of her administrative remedies, which does not affect this court's subject matter jurisdiction. See, e.g., Frederique-Alexandre v. Dep't of Natural & Envtl. Res. P.R., 478 F.3d 433, 440 (1st Cir. 2007) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). Because we dismiss Plaintiff's complaint on other grounds, we decline to address these arguments.

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h e r competence to testify as to Ms. Hamburg's situation. That being the case, Plaintiff's a v e rm e n t regarding Ms. Hamburg appears to be inadmissible hearsay, see Fed. R. Evid. 802, w h ic h we cannot consider on summary judgment, see Fed. R. Civ. P. 56(e)(1) ("[An] o p p o s i n g affidavit must be made on personal knowledge, set out facts that would be a d m i s s i b le in evidence, and show that the affiant is competent to testify on the matters s ta te d ." ) . G iv e n Plaintiff's failure to sustain a genuine issue of material fact as to whether a s im ila rly-s itu a te d individual outside the protected class received more favorable treatment, w e find Defendant entitled to summary judgment on Plaintiff's disparate treatment claim. B. D is p a r a te Impact T o prove a claim of disparate impact, a plaintiff must (1) identify the challenged e m p lo ym e n t practice or policy and pinpoint the employer's use of it; (2) demonstrate a d is p a ra te impact on a group characteristic that falls within the protective ambit of Title VII; a n d (3) demonstrate a causal relationship between the identified practice and the disparate im p a c t. EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 601 (1st Cir. 1995), c e rt. denied, 516 U.S. 814 (1995). Generally, plaintiffs submit statistical proof to

d e m o n s tra te a disparate impact on a group characteristic. See id. at 606; see also Bramble v . Am. Postal Workers Union, 135 F.3d 21, 26 (1st Cir. 1998) ("Statistics . . . are commonly a basic component of a disparate impact claim.").

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N o w h e re in the record does Plaintiff even mention the effect of the alleged unlawful d is c rim in a tio n on other Puerto Ricans. (See Docket Nos. 1; 21; 21-1.) Even if such an effect c a n be inferred from Plaintiff's submissions to date, she has failed to submit the evidence re q u ire d to support it by this stage of her litigation. Plaintiff, therefore, fails to sustain a g e n u in e issue of material fact as to whether the alleged discrimination affects other Puerto R ic a n s , and Defendant is entitled to summary judgment on Plaintiff's disparate impact claim. IV . C o n c lu s io n F o r the foregoing reasons, we hereby GRANT Defendant's motion for summary ju d g m e n t (Docket No. 18), and DISMISS Plaintiff's complaint (Docket No. 1) in its entirety. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 25 th day of August, 2010. s /J o s é Antonio Fusté J O S E ANTONIO FUSTE C h ie f U.S. District Judge