Torres v. Hilton International of Puerto Rico, Inc.
Filing
77
OPINION AND ORDER denying 23 motion for summary judgment. Signed by Judge Salvador E. Casellas on 7/2/12. (PR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CLAUDIA I. TORRES
Plaintiff,
v.
Civil No. 10-1190 (SEC)
HILTON INTERNATIONAL OF
PUERTO RICO, INC
Defendant.
OPINION AND ORDER
Before the Court are defendant’s motion for summary judgment (Docket # 23),
plaintiff’s opposition thereto (Docket # 27), and the parties’ respective reply memoranda
(Dockets # 49 and 56). After reviewing the filings and the applicable law, defendant’s motion
is DENIED.
Factual and Procedural Background
Plaintiff Claudia I. Torres filed this suit against her former employer Hilton
International of Puerto Rico, Inc. (“Defendant”), pursuant to the Americans with Disabilities
Act (“ADA”)1 and to the laws of Puerto Rico. Docket # 1. Torres claims that Defendant
terminated her employment after learning of her mental disability through a request of
reasonable accommodation. With preliminary procedural nuances out of the way, Defendant
moved for summary judgment, and Torres opposed. The uncontested, material facts relevant
at this juncture follow.
Defendant owns and operates the Caribe Hilton Hotel located in San Juan, Puerto
Rico. It employs over 500 people. Docket # 28-1, p. 19, ¶ 1. Torres began working there on
February 23, 2001 as a Food & Beverage Attendant in the Room Service Department. Docket
# 23-1, ¶ 3. She was affiliated to the Gastronomical Workers’ Union, and a collective
1
42 U.S.C. § 12101 et seq.
2
bargaining agreement (“CBA”) governed her employment relationship with Defendant. Id.,
¶¶ 5 and 6. Under the CBA, barring exceptional circumstances, Defendant was required to
abide by a seniority system when making employee-related decisions such as shift
assignments, days off, and vacations. Id., ¶ 7. The CBA, however, nowhere established how
Defendant was to handle reasonable accommodation requests nor stated that those requests
had to be denied when contrary to the seniority system in place. Docket # 28-1, p. 31, ¶¶ 4041. At any rate, Defendant had to consider seniority when establishing Torres’ regular work
shifts within the Food & Beverage Department. Docket # 23-1, ¶ 8.
Torres’ performance at work was satisfactory at the beginning. Thus, in 2006,
Defendant awarded her with a certificate for “her commitment and dedication during the last
5 years of service.” Docket 28-1, p. 20, ¶ 2. Things took a turn for the worse thereafter,
however.
In March of 2007, Torres received a written coaching and counseling memo due to
eleven instances of tardiness and one unannounced absence. Docket # 23-1, ¶ 33. A three-day
suspension from work and pay followed five months later—Torres had been seen in the
employee parking lot stumbling around (apparently drunk), and she had fallen asleep in her
car without reporting to her shift. Id., ¶ 34. She showed up drunk to work again early in 2008,
and Defendant reprimanded her with a written warning. Id., ¶ 36. Another written warning
ensued seven days later, this one due to four instances of tardiness during the two preceding
weeks. Id., ¶¶ 37, 38. Then, in the summer of 2008, Torres was suspended from work and
pay (five days) for a second time—she had “finished her work shift but [had] remained at the
Hotel’s premises . . . at a different department than hers, consuming a juice without the
required authorization.” Id., ¶ 39.
Torres’ health deteriorated two weeks thereafter. She was hospitalized at a psychiatric
facility for seven days, and weeks later, went back in for a 16-day “Out-Patient Partial
Hospitalization Program.” Docket # 28-1, p. 25, ¶¶ 16-17. But because Torres properly
3
documented her hospitalization with Defendant, she was welcomed back to work when
cleared by the doctor. Docket # 23-1, ¶ 41. Notwithstanding, on August 25, 2008, Defendant
again suspended Torres from work and pay (five days) due to a “No Show-No Call,” (id., ¶
40), and her mental condition worsened to the point that she had to be hospitalized for
psychiatric reasons on September 1, 2008 (Docket # 28-1, p. 26, ¶ 20).
Torres was released from the hospital on October 1, 2008. Docket # Id., p. 24, ¶ 24.
And a week later, she visited Defendant’s Human Resources Department accompanied by
her mother. Id., ¶ 25. During the visit, Torres informed Defendant that she had been
diagnosed with bipolar disorder and was receiving psychiatric treatment; that she wanted to
return to work once cleared by the psychiatrist; and that she was interested in a transfer to
another department within Food & Beverage because there was too much gossip where she
worked. Id., ¶¶ 44 and 48.
Defendant denied Torres’ transfer request out of hand. Its representatives told her that
there was no opening available, and that if one came about, she would have to defer to any
employee with seniority over her. Id., ¶ 51. Defendant’s representatives also explained to
Torres that
the assignment of [Food and Beverage] Attendants in different
departments of the Hotel responded to a system set up by the Union and
established in the Collective Bargaining Agreement executed between
the Union and the Hotel in which employees were assigned to different
work areas based on their seniority. [That] . . . the work schedules in the
Hotel were based on the employee’s seniority and that employees with
more seniority choose whatever outlets they preferred to work in.
Id., ¶ 50. All the same, the meeting concluded with neither an agreement on a possible
accommodation for Torres nor on a date for her return to work.2
Defendant next addressed Torres on November 5, 2008, when it issued a termination
2
During the meeting, Torres denied an offer to request leave under the Family Medical
Leave Act (“FMLA”), 29 U.S.C. § 2615. Docket # 23-1, ¶ 46. But other than that, the parties’
submissions contain nothing about what was said about a specific date for Torres’ return to
work.
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letter bearing her name. Docket 23-1, ¶ 53.3 The letter, however, never reached Torres.
Docket # 28-1, p. 37, ¶ 63. So seven days later, when she was cleared to work, Torres
(psychiatrist’s certificate in hand) immediately reported to Defendant intending to be
scheduled back on her shift. Id. Defendant then provided her with a copy of the termination
letter, and this suit eventually ensued. Id.
As stated above, Defendant timely moved for summary judgment. It advances a twopronged argument: (1) that Torres was not a qualified individual under the ADA because of
her record of absenteeism; and (2) that the accommodation she requested (transfer to another
department) contravened the CBA’s seniority system, and thus fell under the “undue
hardship” exception to the reasonable accommodation requirement of the ADA. Plaintiff
opposed each of these contentions.
Standard of Review
The Court may grant a motion for summary judgment when “the pleadings,
depositions, answers to interrogatories, 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 judgment as a matter of law.” Fed. R. Civ. P. 569(c); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ramirez-Rodriguez v. Boehringer Ingelheim
Pharmaceuticals, Inc., 425 F.3d 67, 77 (1st Cir. 2005). In reaching such a determination, the
Court may not weigh the evidence. Casas Office Machs., Inc. v. Mita Copystar Am., Inc.,
42 F.3d 668, 684 (1st Cir. 1994). At this stage, the court examines the record in the “light
most favorable to the nonmovant,” and indulges all “reasonable inferences in that party’s
favor.” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994).
The summary judgment inquiry is grounded in the factual evidence available, since
3
In Defendant’s own words: “[a]s a result of Plaintiff’s no show, no call, for more than a
month, on November 5, 2008 Plaintiff was discharged.” Id. Torres disputes Defendant’s “no
show, no call” contention. According to Torres, she visited with her supervisor a week before her
termination, and he told her that she could return to work when cleared by the doctor. Docket #
28-1, p. 35, §§ 56-60. This factual controversy plays no role in the Court’s ruling.
5
“[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of
factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). Once the movant has averred that there is an absence of evidence to support the
nonmoving party’s case, the burden shifts to the nonmovant to establish the existence of at
least one fact at issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d
46, 48 (1st Cir. 1990) (citations omitted). “A factual issue is ‘genuine’ if ‘it may reasonably
be resolved in favor of either party and, therefore, requires the finder of fact to make ‘a
choice between the parties’ differing versions of the truth at trial.’” DePoutot v. Raffaelly,
424 F.3d 112, 117 (1st Cir. 2005) (quoting Garside, 895 F.2d at 48). A material fact, in turn,
is one that may affect the outcome of the suit under the governing law. Morris v. Gov’t Dev.
Bank of P.R., 27 F.3d 746, 748 (1st Cir. 1994).
At any rate, to defeat summary judgment, the opposing party may not rest on
conclusory allegations, improbable inferences, and unsupported speculation. Hadfield v.
McDonough, 407 F.3d 11, 15 (1st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). Nor will “effusive rhetoric” and “optimistic
surmise” suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d
957, 960 (1st Cir. 1997). Accordingly, once the party moving for summary judgment has
established an absence of material facts in dispute, and that judgment is proper as a matter
of law, the “party opposing summary judgment must present definite, competent evidence
to rebut the motion.” Mendez-Laboy v. Abbott Lab., Inc., 424 F.3d 35, 37 (1st Cir. 2005)
(quoting Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994)). “The
non-movant must ‘produce specific facts, in suitable evidentiary form’ sufficient to limn a
trial-worthy issue . . . . Failure to do so allows the summary judgment engine to operate at
full throttle.” Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir. 1991) (warning
that “the decision to sit idly by and allow the summary judgment proponent to configure the
record is likely to prove fraught with consequence”); Medina-Muñoz, 896 F.2d at 8 (quoting
6
Mack v. Great Atl. & Pac. Tea Co., Inc., 871 F.2d 179, 181 (1st Cir. 1989)) (holding that
“[t]he evidence illustrating the factual controversy cannot be conjectural or problematic; it
must have substance in the sense that it limns differing versions of the truth which a fact
finder must resolve”).
Applicable Law and Analysis
The ADA Claims
Congress enacted the ADA “to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §
12101(b)(1). The purpose of the ADA is to protect qualified individuals from disability-based
employment discrimination. Id., § 12112(a). Accordingly, it encompasses all employment
practices, including, but not limited to, job application procedures, hiring, firing,
advancement, and compensation. Id.
To succeed under the ADA, in the absence of direct evidence of discrimination, a
party must rely on the three-pronged burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, a plaintiff must first
make a prima facie showing of disability discrimination by proving through a preponderance
of the evidence that she was 1) disabled within the meaning of the Act; 2) able to perform
the essential functions of her job, with or without reasonable accommodation; and 3)
discharged or adversely affected, in whole or in part, because of her disability. Tobin v.
Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005). If the plaintiff satisfies the first
prong of the framework, the burden then shifts to the defendant, who must articulate a
legitimate, non-discriminatory reason for its employment decision and produce credible
evidence to show that the reason advanced was the real reason. Freadman v. Metropolitan
Property and Cas. Ins. Co., 484 F.3d 91, 99 (1st Cir. 2007).
Once defendant offers a legitimate non-discriminatory reason, the initial inference of
discrimination evaporates, and the burden then shifts back to the plaintiff. At this stage, the
plaintiff must advance evidence to establish that defendant’s non-discriminatory justification
7
is a mere pretext cloaking discriminatory animus. Freadman, 484 F.3d at 99. In other words,
“the plaintiff must muster proof that enables a fact finder to rationally conclude that the
stated reason behind the adverse employment decision is not only a sham, but a sham
intended to cover up the proscribed type of discrimination.” Laurin v. Providence Hosp.,150
F.3d 52, 58 (1st Cir. 1998).
In this case, Defendant premises its challenge to Torres’ ADA claims on the first
prong of the McDonnell Douglas burden shifting framework. It first contends that Torres’
record of absenteeism suffices to show that she was unable to perform the essential functions
of her job, with or without reasonable accommodation.4 As stated above, performance of the
essential functions of the job is a sine qua non for a successful ADA claim. Attendance is,
of course, an essential function of any job. Rios-Jimenez v. Principi, 520 F.3d 31, 42 (1st Cir.
2008). “Gross attendance problems can [therefore] prevent a disabled person from being
qualified for a position even when the attendance problem is related in whole or in part to the
disability.” Castro-Medina v. Procter & Gamble Commercial Co., 565 F.Supp. 2d 343, 369
(D.P.R. 2008). Indeed, the law is uncontested in this regard: an employee who frequently
misses work, valid excuse or not, is not a qualified individual able to perform the essential
functions of her job, either with or without reasonable accommodation. See e.g. ColonFontanez v. Municipality of San Juan, 660 F.3d 17, 33-34 (1 Cir. 2011); Rios-Jimenez, 520
F.3d at 42; Jackson v. Veterans Admin., 22 F.3d 277, 277-79 (11th Cir. 1994); Tyndall v.
National Educ. Ctrs., Inc. of California, 31 F.3d 209, 213 (4th Cir. 1994); Castro-Medina,
565 F.Supp. 2d at 369; Walders v. Garrett, 765 F.Supp. 303, 309 (E.D. Va. 1991).
4
Defendant neither contests that Torres was disabled for ADA purposes nor refutes that
her termination constituted an adverse employment action. Moreover, despite Torres’ less than
stellar personnel record, Defendant presents no argument under the second prong of the burden
shifting framework. The stated reason for Torres’ termination was “job abandonment.” Docket
23-1, ¶ 53. Accordingly, at this stage, Torres’ allegation that she visited with her supervisor days
before her termination, and that he told her then that she could return to work when cleared by
the doctor, would have weighed heavily against a ruling for Defendant on such prong of the
framework.
8
Defendant clings to the foregoing case law and presents the Court with an exhaustive
recount of Torres’ personnel record, underscoring each and every one of her absences.
Defendant’s position, however, is problematic for at least three reasons. First, it is undisputed
that Torres never obtained reasonable accommodation in connection with her bipolar disorder
diagnosis. It follows then that even though the uncontested evidence of record shows that
Torres frequently missed work prior to her termination, the record lacks evidence to support
the conclusion that Torres’ attendance issues would have continued had she received
reasonable accommodation. Courts faced with similar scenarios have generally denied
summary judgment. See e.g. Taylor v. Phoenixville School Dist., 184 F.3d 296, 218 (1999)
(“When the disability involved is one that is heavily stigmatized in our society—as is true
when the employee is voluntarily or involuntarily committed to a mental institution—courts
should be especially wary on summary judgment of underestimating how well an employee
might perform with accommodations . . . .”). Torres underscores this point in her submissions
to the Court, but Defendant nowhere addresses it.
Second, Defendant’s position runs contrary to many of the cases it relies upon, where
plaintiffs were terminated because, among other reasons, they received reasonable
accommodation but still failed to correct absenteeism problems. See Colon-Fontanez, 660
F3d at 35 (“The record, both pre-dating and post-dating her [reasonable accommodation],
ma[de] overwhelmingly clear that [she] could not satisfy regular attendance requirements.”);
Rios-Jimenez, 520 F.3d at 42 (noting that plaintiff “had a spotty attendance record even after
she was permitted to work part-time as recommended by her psychiatrists”); Castro-Medina,
565 F.Supp. 2d 343 (noting that plaintiff, who had been absent from work for 878 days
during a span of three years and seven months, conceded that defendant “allowed her to take
numerous leaves of absences for the diagnosis and treatment of her medical conditions”);
Tyndall., 31 F.3d at 214 (finding that defendant’s “extensive accommodations of [plaintiff’s]
lupus condition did not improve her attendance level”); Walders, 765 F.Supp at 309
(“[D]uring the course of her tenure [defendant] provided plaintiff with various combinations
9
of leave and restrictions, none of which proved effective.”). Defendant nowhere
acknowledges this discrepancy, which significantly weakens the position it advances.
Last but not least, the record before the Court shows that Defendant tolerated Torres’
absenteeism through the years. To be sure, Defendant did reprimand Torres for unauthorized
absences. But it was not until Torres notified Defendant that she had been diagnosed with
bipolar disorder, that Defendant terminated her employment. Such a temporal proximity
between a reasonable accommodation request and an adverse employment action generally
raises a red flag that can preclude summary judgment. See D.B. ex el rel. Elizabeth B. v.
Esposito, 675 F.3d 26, 42 (1st Cir. 2012). At any rate, the stated reason for Torres’
termination was “job abandonment” rather than her previous absenteeism problems, so the
Court takes Defendant’s focus on Torres’ absences with caution and ponders whether it may
constitute an improper, after-the-fact attempt at window dressing. None of Defendant’s
submissions at this stage has foreclosed this possibility; accordingly, Defendant’s
overemphasis on Torres’ absenteeism misses the mark.
Defendant’s fallback position also falters. As previously mentioned, Defendant also
contends that the accommodation Torres requested (transfer to another department)
contravened the CBA’s seniority system, and thus fell under the “undue hardship” exception
to the reasonable accommodation requirement of the ADA. Defendant premises this
argument on a line of cases standing for the general principle that accommodations that
contravene the rules of a seniority system are not reasonable for ADA purposes. See e.g. U.S.
Airways, Inc. v. Barnett, 535 U.S. 391, 403-05 (2002). Defendant, however, has failed to put
the Court in a position to apply those cases to the undisputed facts brought forth at this stage.
For example, although it is an undisputed fact of record that the CBA contained a
clause exempting enforcement of the seniority system under exceptional circumstances
(Docket # 23-1, ¶ 7), the record is devoid of evidence to conclude that Torres’ circumstances
fell outside the scope of such clause. Similarly, Defendant failed to introduce evidence to
account for the undisputed fact that the CBA nowhere established how Defendant was to
10
handle reasonable accommodation requests nor stated that those requests had to be denied
when contrary to the general provisions of the seniority system. Docket # 28-1, p. 31, ¶¶ 4041. The Court therefore cannot credit Defendant’s contention that Torres’ transfer request
ran contrary to the CBA’s seniority system. Indeed, a jury presented with the facts just
described may arrive at the opposite conclusion.
Still, Defendant’s contentions on this front fail for yet another reason. The ADA
requires covered employers to engage in an informal, interactive process with a qualified
employee once appraised of the need for reasonable accommodation. 29 C.F.R. §
1630.2(o)(3). This process calls for the employer to engage the employee in a meaningful
dialogue to “identify the precise limitations resulting from the disability and the potential
reasonable accommodation that could overcome those limitations.” Id.; see also Tobin, 433
F.3d at 108. The rationale behind this process is both sound and simple:
The process must be interactive because each party holds information the
other does not have or cannot easily obtain. . . . [The] employer will not
always know what kind of work the worker with the disability can do,
and conversely, the worker may not be aware of the range of available
employment opportunities, especially in a large company.
Taylor, 184 F.3d at 316. Accordingly, an employer’s failure to engage in the interactive
process may, on itself, “constitute a failure to provide reasonable accommodation that
amounts to a violation of the ADA.” Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (1st
Cir. 1996).
Here, Defendant posits that it engaged in the requisite interactive process when it
explained to Torres that a transfer was not an alternative due to the CBA’s seniority system.
Docket # 49, p. 8. Two obvious flaws fatally afflict this argument. First, the Court already
established that the record does not support the conclusion that the CBA’s seniority system
prohibited Torres’ transfer request. Second, an employer’s duty under the interactive process
goes far beyond articulating a feasible explanation to reject an employee’s suggested
accommodation. See Taylor, 184 F.3d at 315-16 (“The interactive process would have little
11
meaning if it was interpreted to allow employers, in the face of a request for accommodation,
simply to sit back passively, offer nothing, and then, in post-termination litigation, try to
knock down every specific accommodation as too burdensome.”). In fact, a qualified
employee need not come forward with a reasonable accommodation proposal of her own. It
is the employers’ burden to “take steps to understand and address their employee’s
disabilities,” Tobin, 433 F.3d at 108 n. 7, as they “will often hold more information than the
employee about what adjustments are feasible in the employee’s current position.” Taylor,
184 F.3d at 316.
Furthermore, Torres’ opposition memoranda provides valid examples of the kind of
steps a jury could determine were available for Defendant to discharge its duties under the
interactive process: 1) Defendant could have asked her for information about her bipolar
disorder diagnosis; 2) Defendant could have consulted with her doctor about needed
accommodations; 3) Defendant could have referred her to a professional counselor or
established a so-called Employee Assistance Plan (both alternatives provided for under
Defendant’s internal policies); or 4) Defendant could have helped her contact external
resources to address her disability. Docket # 27, pgs. 20-21. Moreover, the Court notes that
Defendant, at the very least, could have summoned Torres’ Union representative to explore
viable accommodation alternatives under the CBA. The record presented to the Court shows
that Defendant took none of these actions, which suffices to deny the pending motion. See
Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998) (“[i]n a case involving an employee
with mental illness, the communication process becomes more difficult, and [i]t is crucial
that the employer [is] aware of the difficulties, and help the other party determine what
specific accommodations are necessary”) (quotation marks and citations omitted; alterations
in original). But even worse, the record seems to reflect that Defendant rejected Torres’
reasonable accommodation request out of hand, with no significant interaction whatsoever
regarding possible alternatives to address her situation. The Court is aware of no authority
warranting summary judgment under such scenario, and Defendant has certainly come
12
forward with none; the reason, perhaps, being that binding precedent directs otherwise. See
Katz v. City Metal Co., Inc., 87 F.3d 26, 33 (1st Cir. 1996) (reversing summary judgment
where accommodations sought were “rejected out of hand” and stating that “[w]ith respect
to known disabilities . . . the emphasis is on encouraging the employer to ‘engage in an
interactive
process
with
the
individual
to
determine
an
effective
reasonable
accommodation’”).
Defendant makes much of the fact that Torres expressly declined an invitation to
complete the necessary forms to request leave under the FMLA. Docket # 23-3, p. 19. But
in so arguing, Defendant disregards that leave under the FMLA does not constitute
reasonable accommodation, but rather, a right provided under a completely different statutory
scheme. See Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001). And the proposition
that an employer’s duty to engage in an interactive process under the ADA may be
discharged by presenting an employee with rights she already enjoys is nothing less than
counterintuitive, to say the least.
Defendant similarly faults Torres for providing a poor explanation for the requested
accommodation. According to Defendant, Torres’ proffered reason for the transfer—that
there was too much gossip in the Room Service Department—“was not a reasonable
accommodation as a matter of law because it was not an accommodation at all as that term
ought to be understood.” Docket # 23-3, p. 20. Nevertheless, “[w]hat matters under the ADA
are not formalisms about the manner of the request, but whether the employee or a
representative for the employee provides the employer with enough information that, under
the circumstances, the employer can be fairly said to know of both the disability and desire
for an accommodation.” Taylor, 184 F.3d at 313. The record here shows that Defendant
knew about both Torres’ disability and her desire to obtain reasonable accommodation.
Therefore, that the reason proffered for the requested accommodation was less than clear is
of no consequence. Id.; see also Bultemeyer v. Fort Wayne Community Schools, 100 F.3d
1281, 1286 (7th Cir. 1996) (“[P]roperly participating in the interactive process means that
13
an employer cannot expect an employee to read its mind and know that he or she must
specifically say ‘I want reasonable accommodation,’ particularly when the employee has a
mental illness.”).
To boot, Defendant’s fallback contention fails for two reasons: first, its factual
premise—that the CBA’s seniority system prohibited Torres’ transfer—is unsupported by
the undisputed evidence of record; and second, whether Defendant complied with the
requisite interactive process is disputed. Indeed, on the record presented to the Court here,
a jury may very well find for Torres on both of these issues.
Supplemental Law Claims
Because Defendant’s plea for the dismissal of Torres’ state-law claims assumes the
dismissal of her federal-law claims, the Court need not address the same.
Conclusion
For the forgoing reasons, Defendant’s summary judgment motion is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 2nd day of July, 2012.
s/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge
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