Colon v. Tracey et al
Filing
110
OPINION AND ORDER re 69 Motion for Summary Judgment; and re 104 Report and Recommendation. The Court ADOPTS Magistrate Judge Velez-Rive's Report and Recommendation and GRANTS the defendants' motion for summary judgment. In accordance with this order and the order at docket number 43, this case is DISMISSED, with prejudice. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 06/21/2012. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NEYSA COLON,
Plaintiff,
v.
CIVIL NO. 10-2220 (FAB)
INFOTECH AEROSPACE SERVICES INC,
et. al.,
Defendants.
OPINION AND ORDER1
BESOSA, District Judge.
Before the Court is a Report & Recommendation (“R&R”) issued
by United States Magistrate Judge Velez-Rive.
(Docket No. 104.)
The R&R granted the motion for summary judgment filed by defendants
Infotech Aerospace Service, Inc. (“IAS”), Luis Mercado (“Mercado”),
Iveetzia Avilez (“Avilez”) and Jeffrey Tracey (“Tracey”) (hereafter
“defendants”).
(Docket No. 69.)
After an independent review of
the record and plaintiff Neysa Colon’s (“Colon”) objections to the
R&R, (Docket No. 108), the Court ADOPTS the R&R and GRANTS the
defendants’ motion for summary judgment.
I.
Procedural Background
Plaintiff Colon filed a complaint on December 13, 2010,
alleging that her employer, IAS, violated Title VII of the Civil
1
Justin Rowinsky, a second-year student at the Georgetown
University Law Center, assisted in the preparation of this Opinion
& Order.
Civil No. 10-2220 (FAB)
2
Rights Act of 1964, 42 U.S.C. § 2000(e) (2012) (“Title VII”); the
Equal Pay Amendment, 29 U.S.C. § 206(d)(1) (2012) (“EPA”); P.R.
Laws Ann. tit. 29, § 146 (2009) (“Law 100”); and P.R. Laws Ann.
tit. 29, § 194 (2009) (“Law 115”) by retaliating against her for
engaging “in protected conduct.”
(Docket No. 1 at p. 7.)
Colon
also alleged that defendants Mercado, Tracey and Avilez were
personally liable pursuant to Article 1802 of the Civil Code, P.R.
Laws Ann. tit. 31, § 5141 (2009), for their “conspiracy and
engagement in discriminatory acts” in concert with IAS.
8.
Id. at p.
Defendants filed a motion to dismiss Colon’s Law 100 claim
pursuant
to
Federal
Rule
of
Civil
Procedure
12(b)(6)
on
November 14, 2011, claiming that Colon had failed to establish
facts that could support judgment in her favor.
(Docket No. 28.)
The Court referred the motion to dismiss to Magistrate Judge VelezRive, who issued an R&R on December 21, 2011 that recommended
granting the motion.
(Docket No. 38.)
The Court adopted the R&R
in full and granted the defendants’ motion to dismiss Colon’s Law
100 without prejudice on January 10, 2012.
(Docket No. 43.)
Colon’s remaining claims were pursuant to Title VII, the EPA,
and Law 115.
On April 2, 2012, defendants filed a motion for
summary judgment on those remaining claims.
(Docket No. 69.)
Colon responded with her opposition on April 25, 2012, (Docket
No. 83), to which defendants filed a reply on May 10, 2012.
Civil No. 10-2220 (FAB)
(Docket No. 98.)
3
Magistrate Judge Velez-Rive issued an R&R on
May 21, 2012 that recommended granting the defendants’ motion for
summary judgment, and which is the subject of this order.
(Docket
No. 104.)
A.
Factual History
The complete factual record is contained in the R&R
(Docket No. 104), and the Court will not rehash it here.
The Court
will instead highlight the material facts relevant to Colon’s
remaining claims against the defendants and their motion for
summary judgment.
Colon was an employee of IAS’s
Human Resources (“HR”)
department from April 30, 2007 through her resignation on March 18,
2010.
(Docket No. 70 at ¶¶ 1, 97.)
meaning
that
including
employees.
her
oversight
role
of
Id. at ¶ 2.
encompassed
the
benefits
She was a “Generalist,”
various
and
responsibilities
compensation
of
IAS
In 2007, she was assigned to work on IAS’s
Affirmative Action Plan (“AAP”), a necessary condition of IAS’s
contract with the U.S. government.
Id. at ¶ 4.
In December, 2008
Colon gave a copy of her AAP report to Mercado, the HR Manager who
Civil No. 10-2220 (FAB)
4
considered the report to be “six months late”2 and “a draft.”3
Id.
at ¶¶ 25, 29.
On
February
23,
2009,
IAS
hired
Ms.
Janice
Monge
(“Monge”) to work on the AAP report for 2009 (annual AAP reports
are required).
Id. at ¶ 26.
Mercado eventually asked Monge to
analyze Colon’s previously submitted AAP in July 2009, after Colon
had already resigned.
No. 70 at ¶ 28.)
Colon’s
(Docket No. 70-13 at p. 43:11-13 & Docket
Monge informed Mercado that several aspects of
previously
submitted
AAP
report
were
lacking
or
statistically deficient. (Docket No. 70-13 at p. 53:5-23.)
In December 2008, Mercado decided to cross-train certain
HR employees to ensure an employee’s functions could still be
performed by a back-up if necessary, and to have the employees gain
experience and “learn other things.” (Docket No. 70-6 at pp. 36:24 & 43:3-12.)
In January 2009, Colon and three other HR employees
were rotated to different roles as part of this cross-training
plan.
time
(Docket No. 70 at ¶¶ 11, 13, 15.)
that
Colon
had
participated
in
This was not the first
cross-training;
she
had
previously done so as part of a plan implemented in January 2008.
2
Mercado considered the AAP report late because it was for
the period of July 1, 2007 through June 30, 2008. (Docket No. 70-2
at p. 127.)
3
Mercado also indicated that Colon’s work on the AAP report
“was a long process” and that “[w]e had to follow up consistently.”
(Docket No. 70-6 at p. 11:24-25.)
Civil No. 10-2220 (FAB)
Id.
at
¶
16.
Colon
5
was
assigned
“Business
Partner”
responsibilities, a “pretty busy job” that made her the HR contact
person for potentially hundreds of IAS employees. Id. at ¶¶ 11-12.
In addition to Colon, two other HR “Generalists” were also given
“Business Partner” responsibilities at that time.
Id. at ¶ 17.
Colon’s evaluation and bonus for 2008 were favorable, and her
salary and benefits were not changed while she cross-trained.
Id.
at ¶¶ 19-20.
In March 2009, Colon was asked to participate in the
investigation of a claim raised by Ms. Anayanssi Diaz (“Diaz”), a
female employee from one of the departments assigned to Colon as
part of her “Business Partner” responsibilities.
Id. at ¶¶ 35-38.
Diaz alleged a pay disparity between herself and a male employee.
Id.
Because the investigation necessarily included an analysis of
various
employees’
salary
and
benefits,
Mercado
personally
instructed Colon and the other investigators to keep all of that
information confidential, and required his authorization prior to
disclosing any of it.
Id. at ¶¶ 39-40.
At some point Colon asked
to be removed from the investigation because she claimed to be
Diaz’s close friend.
Id. at ¶ 41.
In late May 2009, Colon was interviewed by the State
Insurance Fund (“SIF”) because she had witnessed Diaz have a panic
attack at work.
Id. at ¶¶ 42-45.
Colon was not asked to prepare
Civil No. 10-2220 (FAB)
6
a statement or report at that point in time.
Id.
Pursuant to IAS
protocol, HR employee Ms. Hermy Rosario (“Rosario”) escorted SIF
investigator Mr. Agrimalde Perez (“Perez”) throughout his time in
the IAS building.
Id. at ¶¶ 47-52.
Accordingly, Rosario remained
near but outside the room in which Perez interviewed Colon about
Diaz’s panic attack and subsequent insurance claim.
Id.
Colon
made no comments about the presence of Rosario at the time of the
interview or after it.
Id.
On June 12, 2009, Rosario informed Avilez (who in turn
told
Mercado)
that
she
had
found
a
fax
transaction
report
indicating that someone had faxed confidential information from the
investigation of Diaz’s claim to SIF investigator Perez.
No. 99 at ¶ 53.)
(Docket
Mercado interviewed Colon who admitted that she
had faxed the information even though it was confidential and she
had
not
requested
instructed.4
prior
approval
from
Mercado
(Docket No. 70 at ¶¶ 55, 64-65.)
as
he
had
The IAS employee
manual indicates that disclosing information deemed confidential by
the company is a violation sanctionable by corrective disciplinary
action.
4
Id. at ¶¶ 63, 66.
On June 16, 2009, Tracey and Avilez met
The Court notes that there is a factual dispute as to
whether SIF investigator Perez specifically requested the
information (as Colon avers) or whether Colon faxed the information
on her own initiative.
Regardless, the Court finds Colon’s
admission that she faxed the information without requesting prior
approval from Mercado as the material and undisputed fact relevant
to this section of her complaint and the R&R’s analysis.
Civil No. 10-2220 (FAB)
7
with Colon to discuss her faxing of the confidential information.
Id. at ¶¶ 70-71.
Colon also admitted to having confidential
information on her personal “pen drive” and personal data drive on
IAS’s server (“H drive”), even though such confidential information
is only permitted on the password protected “O drive.”
Id. at ¶¶
72-77. Mercado and Avilez informed Colon that she was being placed
on a three day suspension with pay while they investigated her
violation of IAS policy.
Id. at ¶¶ 79, 81.
IAS regards suspension
with pay as an “administrative leave” that is not considered a
disciplinary action.
Id.
IAS ultimately decided to issue a final corrective action
to Colon when she returned to work in the form of a formal written
warning advising her that future conduct warranting discipline may
entail termination of her employment.
Id. at ¶¶ 89-91.
Before
beginning her suspension, Tracey and Avilez had told Colon that
they wished to keep the investigation of her conduct confidential
for her privacy and benefit.
Id. at ¶¶ 84-85.
Because Colon’s
identification badge had been taken from her before she served her
suspension,
and
IAS
wished
to
keep
the
suspension
itself
confidential, Avilez left a voicemail with Colon that stated she
should
contact
Tracey
so
identification badge to her.
that
he
Id. at
could
return
¶¶ 85-87.
Colon’s
Instead of
contacting Tracey and returning to work, however, Colon reported to
Civil No. 10-2220 (FAB)
8
the SIF because she feared for her “personal security” and that it
“could be” that Tracey would “attack” her.
Id. at ¶ 93; Docket No.
70-2 at p. 287. During that period of time, IAS kept her position
open as required by law.
Id. at ¶¶ 94-95.
resigned on March 8, 2010.
Id. at ¶ 96.
B.
Colon eventually
Colon’s Objections to the R&R’s Findings
Defendants moved for summary judgment on all of Colon’s
remaining claims.
(Docket No. 69.)
The R&R determined that the
defendants’ motion for summary judgment should be granted because
there was no genuine issue of material fact in dispute, and no
reasonable jury could find for Colon on any of her claims.
(Docket
No. 104 at pp. 30-31.)
Colon
conclusions.
timely
objected
(Docket No. 108.)
to
several
of
the
R&R’s
First, she objects to the R&R’s
legal analysis of the proximity element in employee retaliation
claims.
Id.
at
p.
3.
Second,
Colon objects to
the
R&R’s
conclusion that IAS had a legitimate reason to reassign her AAP
responsibilities because the report was late and contained mistakes
and omissions; Colon contends that the record and relevant facts
dispute those conclusions.
to
the
R&R’s
findings
Id. at pp. 5-6.
concerning
Third, Colon objects
her personal
pen
drive
and
disclosure of confidential information to the SIF, arguing that
IAS’s determination that certain documents are confidential does
Civil No. 10-2220 (FAB)
9
not “defeat legally imposed duties” such as cooperating with an SIF
investigation.
Id. at pp. 7-8, 10.
Finally, Colon argues that the
R&R improperly viewed each of IAS’s actions as discrete rather than
a “reprisal course of action.”
II.
Id. at p. 11.
Legal Standards
A.
Standard under 28 U.S.C. § 636(b)(1)
A district court may refer a case to a magistrate judge
for a report and recommendation.
See 28 U.S.C. § 636(b)(1)(B)
(2012); Fed.R.Civ.P. 72(b); Loc. Rule 72(b).
affected
by
the
report
and
Any party adversely
recommendation
may
file
written
objections within fourteen days of being served with the magistrate
judge’s report. See 28 U.S.C. § 636(b)(1) (2012); Loc. Rule 72(d).
A party that files a timely objection is entitled to a de novo
determination
of
“those
portions
of
the
report
or
specified
proposed findings or recommendations to which specific objection is
made.”
Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92
(D.P.R. 2005) (citing United States v. Raddatz, 447 U.S. 667, 673
(1980)).
review.
1992).
Failure to comply with this rule precludes further
See Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir.
Furthermore, the objecting party must put forth more than
“[c]onclusory objections that do not direct the reviewing court to
the issues in controversy.”
Velez-Padro v. Thermo King de Puerto
Rico, Inc., 465 F.3d 31, 32 (1st Cir. 2006).
Civil No. 10-2220 (FAB)
10
In conducting its review, the court is free to “accept,
reject,
or
modify,
in
whole
or
in
part,
recommendations made by the magistrate judge.”
the
findings
or
28 U.S.C. § 636
(a)(b)(1) (2012); Templeman v. Chris Craft Corp., 770 F.2d 245, 247
(1st Cir. 1985); Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc.,
286 F. Supp. 2d 144, 146 (D.P.R. 2003).
The Court may also accept
those parts of the report and recommendation to which the parties
do not object.
See Hernandez-Mejias v. Gen. Elec., 428 F.Supp.2d
4, 6 (D.P.R. 2005) (citing Lacedra v. Donald W. Wyatt Detention
Facility, 334 F.Supp.2d 114, 125-126 (D.R.I. 2004)).
B.
Standard for Summary Judgment under Federal Rule 56(c)
and Local Rule 56
Summary judgment is appropriate when the moving party
cites “depositions” and “documents” that establish there is “no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”
Loc. Rule 56.
the
potential
Fed.R.Civ.P. 56(a), 56(c)(1)(A);
If a fact is contested by the parties, it must have
to
“affect
the
outcome
of
the
suit
under
the
governing law” in order to qualify as a genuine dispute over a
material fact.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
This threshold ensures that the “mere existence of some
alleged factual dispute” that is “irrelevant or unnecessary” will
not prevent summary judgment when a reasonable jury could not find
Civil No. 10-2220 (FAB)
for the non-movant.
11
Id. at 247-48, 252.
The initial burden is on
the moving party to demonstrate “the absence of a genuine issue of
material fact.”
(1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 323
Upon that showing, the non-movant must “present definite,
competent evidence to rebut the motion.”
Maldonado-Denis v.
Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994) (internal
citation omitted).
If the non-movant bears the ultimate burden of
persuasion, it must demonstrate that there is a dispute over a
material fact “essential to that party’s case.” Celotex Corp., 477
U.S. at 322.
The Court “must view the entire record in the light most
hospitable” to the non-movant, and draw “all reasonable inferences
in that party’s favor.”
(1st
Cir.
1990).
determinations”
functions.”
Griggs-Ryan v. Smith, 904 F.2d 112, 115
The
or
Court
weigh
the
does
not
evidence,
Anderson, 477 U.S. at 255.
make
for
“[c]redibility
those
are
“jury
The Court also does not
need to consider “conclusory allegations, improbable inferences,
and
unsupported
speculation.”
Medina-Muñoz
v.
R.J.
Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
The First Circuit Court of Appeals has “emphasized the
importance of local rules similar to Local Rule 56 [of the District
of Puerto Rico].”
Hernandez v. Phillip Morris USA, Inc., 486 F.3d
1, 7 (1st Cir. 2007).
Rules such as Local Rule 56 “are designed to
Civil No. 10-2220 (FAB)
12
function as a means of “‘focusing a district court’s attention on
what is - and what is not - genuinely controverted.’”
Id. (quoting
Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 2006)).
Local
Rule 56 imposes guidelines for both the movant and the party
opposing summary judgment.
A party moving for summary judgment
must submit factual assertions in “a separate, short, and concise
statement of material facts, set forth in numbered paragraphs.”
Loc. Rule 56(b).
A party opposing a motion for summary judgment
must “admit, deny, or qualify the facts supporting the motion for
summary judgment by reference to each numbered paragraph of the
moving party’s statement of facts.”
Loc. Rule 56(c).
Facts which
are properly supported “shall be deemed admitted unless properly
controverted.”
Loc. Rule 56(e); P.R. Am. Ins. Co. v. Rivera-
Vazquez, 603 F.3d 125, 130 (1st Cir. 2010).
Due to the importance
of this function to the summary judgment process, “litigants ignore
[those rules] at their peril.”
C.
Hernandez, 486 F.3d at 7.
Legal Standard for Proving Employer Retaliation
To prove that an employer retaliated in violation of
Title VII and the EPA, a plaintiff bears the initial burden of
making a prima facie showing that:
(1) she engaged in protected
activity, (2) she suffered an adverse employment action, and (3) a
causal connection existed between the protected activity and the
adverse employment action.
See, e.g., Hodgens v. General Dynamics
Civil No. 10-2220 (FAB)
13
Corp., 144 F.3d 151, 160-161 (1st Cir. 1998) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Similarly, under
Law 115, a plaintiff must prove that she engaged in protected
activity
and
employment.”
was
then
“discriminated
against
regarding
her
See Velez v. Janssen Ortho, LLC, 467 F.3d 802, 809
(1st Cir. 2006) (also holding that “Title VII and Law 115 are
largely symmetrical in scope”).
The employer then has a burden of persuasion to offer a
“legitimate,
nondiscriminatory
is
the
basis
for
of
the
the
adverse
employment
decision”
complaint.
See Mesnick v. General Elec. Co., 950 F.2d 816, 823
(1st Cir. 1991).
that
justification
plaintiff’s
If the employer satisfies that requirement, the
plaintiff then “retains the ultimate burden of showing that the
employer’s
stated
retaliati[on].”
reason
.
.
.
was
in
Hodgens, 144 F.3d at 161.
fact
a
pretext
for
When evaluating a
plaintiff’s claim of pretext, courts should focus on “whether the
employer believed its stated reason to be credible,” even though
the “employer’s good faith belief is not automatically conclusive.”
Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 45-46 (1st
Cir. 2002) (quoting Mesnick, 950 F.2d at 823-24).
The plaintiff
must introduce facts that would allow a reasonable jury to find
that the employer’s stated rationale is a “sham,” Mesnick, 950 F.3d
at 824 (internal citation omitted), and can do so by highlighting
Civil No. 10-2220 (FAB)
14
“weaknesses, implausibilities, inconsistences, incoherencies, or
contradictions in the employer’s proffered legitimate reasons.”
Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 662-63
(1st Cir. 2010).
III. Discussion
Even though timely objections to an R&R entitle the objecting
party to de novo review of the findings, “the district court should
be spared the chore of traversing ground already plowed by the
Magistrate.”
Gonzalez-Ramos
v.
Empresas
Berrios,
Inc.,
360
F.Supp.2d 373, 376 (D.P.R. 2005) (citing Sackall v. Heckler,
104 F.R.D. 401 (D.R.I. 1984)).
The party’s objections must be
grounded “in fact . . . and warranted by existing law or a good
faith argument for the extension” rather than a reiteration of
arguments already considered and rejected by the Magistrate Judge.
Id.
The Court will first summarize the R&R’s findings of law, and
then address each of Colon’s objections.
A.
The R&R’s Findings of Law
The R&R concluded that Colon failed her burden to prove
by a preponderance of the evidence that IAS retaliated against her
in violation of Title VII, the EPA, and Law 115.
at pp. 23-25.)
(Docket No. 104
Specifically, the R&R noted that Colon failed to
establish a prima facie case as well as prove successfully to that
IAS’s stated rationale was a pretext for retaliation (assuming
Civil No. 10-2220 (FAB)
15
Colon had made a prima facie case to begin with).
26.
Id. at pp. 25-
The R&R held that Colon’s faxing of confidential salary
information in direct contradiction to instructions given to her
personally by Mercado, and the keeping of confidential information
on her pen drive and H drive in contravention of IAS policies, were
violations of the terms of her employment rather than protected
conduct. Id. at p. 24; see also Texas Instruments v. N.L.R.B., 637
F.2d 822, 833 (1st Cir. 1981) (holding that violation of a company
rule that “prohibited disclosure of classified material” was a
“good” reason for discharging the employees).
In addition, the R&R held that Colon had not suffered an
adverse employment action, the second requirement to establish a
prima facie case.
(Docket No. 104 at pp. 27-29.)
The R&R held
that Colon had failed to demonstrate mistreatment that “could well
dissuade a reasonable worker from making or supporting a charge of
discrimination.”
Burlington N & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006).
Evaluating an adverse employment action is an objective
test, “judged from the perspective of a reasonable person in the
plaintiff’s position.”
Id. at 71.
The R&R further held that
Colon’s stated rationale for choosing to resign was not a factual
dispute because the voicemail left on her phone was not threatening
in any way, and there was no evidence of animosity between Colon
Civil No. 10-2220 (FAB)
16
and Tracey at any time.
(Docket No. 104 at p. 29.) (holding that
the message was spoken in “a modulated tone of voice” and was
“highly professional.”)
The R&R also concluded that because the
evidence did not support a finding of an adverse employment action,
and
Colon
had
not
engaged
in
protected
conduct,
the
“mere
proximity” of the actions Colon considered adverse was not enough
to establish a causal connection.
The
R&R
continued
to
Id. at p. 19.
find
that
even
if
Colon
had
established a prima facie case of retaliation, IAS’s stated reasons
for cross-training Colon and suspending her with pay were “facially
adequate” and therefore the burden would remain with Colon to prove
that IAS’s actions were pretextual. (Docket No. 104 at pp. 25-26);
see also Davila v. Corporacion de Puerto Rico para la Difusion
Publica, 498 F.3d 9, 16 (1st Cir. 2007).
The R&R found that
Colon’s arguments as to pretext were “limited,” and failed to
establish a factual dispute over IAS’s stated rationale for its
decisions.
(Docket No. 104 at pp. 25-26.)
Based on Colon’s
failure to establish both a prima facie case and to demonstrate
that IAS’s rationale was a pretextual sham, the R&R recommended
granting the defendants’ motion for summary judgment.
B.
Colon’s Objections to the R&R’s Findings
An
objecting
party
must
“specifically
identify
the
portions of the proposed findings and recommendations to which
Civil No. 10-2220 (FAB)
objection is made.”
17
Loc. Rule 72(d).
In contrast, Colon’s
objections were not all clearly identified and linked to specific
findings and conclusions in the R&R.
This failure parallels
Colon’s brief opposing the defendants’ motion for summary judgment
that contained conclusory statements and lacked proper citations to
the
record.
(Docket
No.
83.)
The
“anti-ferret”
rule
is
specifically aimed at permitting the Court to “adjudicate a summary
judgment motion without endless rummaging through a plethoric
record.”
See Puerto Rico American Ins. Co. v. Rivera-Vazquez, 603
F.3d 125, 131 (1st Cir. 2010).
attempted
to
group
Colon’s
Despite that rule, the Court has
objections
to
the
R&R’s
together based on the applicable substantive law.
findings
The Court will
generally adhere, however, to the order of the objections as they
are presented in Colon’s motion.
i.
(Docket No. 108.)
The Temporal Proximity between the alleged Adverse
Employment Action and alleged Protected Conduct is
Irrelevant
Colon objects to the R&R’s “legally flawed” (Docket
No. 108 at p. 3) finding that the “mere proximity” of IAS’s alleged
adverse employment actions against Colon were insufficient to
establish pretext “without any indication of discrimination or
retaliation.”
(Docket No. 104 at p. 19.)
After a de novo review
of the law, the Court concludes that Colon misunderstood the R&R’s
finding.
Civil No. 10-2220 (FAB)
18
Although a “particularly close temporal proximity”
between the protected conduct and adverse employment action can be
“strongly suggestive of retaliation,” it is only one of three
requirements for establishing a prima facie case of retaliation.
See Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49
(1st Cir. 2010) (internal quotation omitted) (holding that being
fired within two weeks of reporting sexual harassment is an adverse
employment action sufficiently proximate to engaging in protected
activity).
Colon contends in her objection to the R&R that the
cross-training was contemporaneous with her turning in the AAP
report.
(Docket No. 108 at pp. 3-4.)
Evaluating a causal
connection is necessary only after determining that an employee
engaged in protected conduct and then encountered an adverse
employment action. For example, the First Circuit Court of Appeals
addressed the proximity issue only after concluding that reporting
sexual harassment was protected conduct, and holding that the
employee’s termination was an adverse employment action.
Collazo,
617 F.3d at 47-49.
In contrast to Collazo, the R&R specifically found
that
Colon’s
protected
disclosure
conduct,
and
of
that
confidential
IAS’s
information
cross-training
was
not
program
and
reassignment of AAP responsibilities were not adverse employment
actions.
This is the basis for the R&R’s conclusion that “mere
Civil No. 10-2220 (FAB)
19
proximity” was not enough “without any indication of discrimination
or retaliation.”
(Docket No. 104 at p. 19.)
The Court now turns
to Colon’s objections to the R&R’s findings concerning IAS’s
actions and Colon’s alleged protected conduct.
ii.
IAS had a Legitimate Business Rationale for its
Actions
Colon also objected to the R&R’s finding that the
late submission of her AAP and the mistakes and omissions it
contained were sufficient to justify IAS’s decision to remove
Colon’s responsibility to produce AAP reports.
pp. 5-6.)
(Docket No. 108 at
First, the Court notes that these two objections are
essentially identical to arguments made in Colon’s motion opposing
summary judgment. (Docket No. 83.) Colon had highlighted the fact
that Monge’s opinion of Colon’s AAP report was not solicited until
July 2009 (after Colon had resigned), and that Mercado “never
contacted Colon to inquire” about the AAP.
Id. at pp. 3-4.
Despite this argument, the R&R cited Mercado’s sworn deposition
that he “knew something was missing” from Colon’s AAP report when
she submitted it in December 2008 (Docket No. 70-6 at p. 34), and
that he had considered it just a “draft.”
p. 125:23-25.)
a
manager
(Docket No. 70-2 at
The R&R then concluded that Mercado’s concerns as
were
sufficient
responsibility to Monge.
to
justify
reassigning
(Docket No. 104 at p. 19.)
the
AAP
Civil No. 10-2220 (FAB)
20
In addition, even if Mercado was not aware of any
deficiencies in Colon’s AAP report, “employers must be accorded
reasonable flexibility in operational matters.” Ahern v. Shinseki,
629 F.3d 49, 56 (1st Cir. 2010).
Thus, Mercado’s decision to
cross-train IAS employees to ensure that backups were available to
fill in when needed was a legitimate business decision regardless
of the alleged quality of Colon’s work product.
IAS’s
HR
department
had
cross-trained
See id. Moreover,
employees
previously,
including Colon herself in 2008. (Docket No. 70-2 at p. 249:21-24,
Docket No. 70 at ¶ 16.)
This prior history also demonstrates that
IAS’s cross-training of Colon did not “deviate[] inexplicably from
one of
its
standard
business
practices.”
See
Kouvchinov v.
Parametric Tech. Corp., 537 F.3d 62, 68 (1st Cir. 2008).
The Court
agrees with the R&R’s finding that Mercado’s decision to crosstrain Colon and reassign her AAP responsibilities to Monge were
legitimate business decisions regardless of the timing of Monge’s
eventual evaluation of Colon’s AAP report.
iii. Colon’s Disclosure of Confidential Information was
not Protected Conduct
Colon also objects to the R&R’s findings regarding
her disclosure of confidential salary information to the SIF and
the storage of similar information on her personal pen drive and
personal H drive.
(Docket No. 108 at pp. 7-9.)
Regarding Colon’s
Civil No. 10-2220 (FAB)
pen
drive
and
H
drive,
21
it
is
IAS
policy
that
confidential
information (including employees’ salary and benefits) are not
permitted in personal drives or pen drives.
p. 75:1-11.)
(Docket No. 70-10 at
Whether or not Colon was permitted to have a pen
drive is therefore not a material fact in dispute, because the
dispositive and undisputed fact is that she had confidential
information on her personal drives.
(Docket No. 70-8 at p. 62:11-
25.)
Colon also argues that providing information about
potential gender pay disparity to the SIF was protected conduct
satisfying one of the three requirements necessary for a prima
facie case.
(Docket No. 108 at pp. 10-12.)
Puerto Rico Law 115,
Title VII and the EPA are “largely symmetrical in scope,” and can
therefore be analyzed together.
See Velez v. Janssen Ortho, LLC,
467 F.3d 802, 809 (1st Cir. 2006); Uphoff-Figueroa v. Alejandro,
597 F.3d 423, 433 (1st Cir. 2010) (“Employees must establish they
engaged in activity protected under law 115 and then suffered
discrimination at work.”).
Colon’s disclosure of Diaz’s salary
information to the SIF was in contravention of IAS policy, a fact
Colon admitted.
(Docket No. 70-2 at p. 182:12-18.)
Colon’s chief
objection to the R&R’s findings regarding this incident focuses on
the factual dispute over whether SIF investigator Perez asked for
the information, or if Colon voluntarily faxed it to him.
(Docket
Civil No. 10-2220 (FAB)
No. 108 at p. 9.)
22
Colon raised this argument prior to the R&R, and
the magistrate judge rejected it by focusing on the undisputed and
material
fact
that
Colon
confidential information.5
knew
she
had
improperly
disclosed
(Docket No. 70 at ¶¶ 70-71.)
Colon
ignored instructions contained in the IAS employee manual (and also
given to her personally) not to disclose any salary information
without prior authorization.
Her actions were violations of IAS
policies rather than protected conduct, and were sufficient to
permit an administrative investigation of Colon.
iv.
IAS’s Actions were not a “Reprisal Course of Action”
Finally, Colon objects to the R&R’s characterization
of the “alleged adverse employment actions” as legitimate business
decisions and discrete incidents rather than “part of a reprisal
course of action taken against” Colon.
(Docket No. 108 at p. 11.)
Colon also raised many of these objections before the magistrate
judge, and the R&R properly ruled for the defendants.
First, each of IAS’s actions highlighted by Colon
were not adverse employment actions.
For example, as discussed
above, the decision to cross-train Colon was a legitimate business
5
Colon’s objections also included reference to P.R. Laws Ann.
Tit. 11, §§ 20, 28 as evidence that “salary information must be
provided to SIF.”
(Docket No. 108 at p. 10.)
Both sections,
however, use “employer” rather than “employee” when discussing a
company’s legal obligations. In short, Colon is not authorized nor
required to provide any information to SIF regarding compensation.
Civil No. 10-2220 (FAB)
decision
that
had
been
23
done
previously.
Moreover,
Colon’s
compensation and benefits were never negatively affected, and she
was one of many HR employees who were cross-trained.
A “temporary
rotation of responsibilities” does not qualify as “an adverse
employment action” sufficient to establish a prima facie case of
employer retaliation.
Morales-Vallellanes v. Potter, 605 F.3d 27,
38 (1st Cir. 2010); see also Ahern, 629 F.3d at 56 (“[T]he shortterm
reassignments
of
which
the
plaintiffs
complain
cannot
plausibly be said to constitute materially adverse actions.”). Nor
was the decision to place Colon on paid administrative leave
considered a “disciplinary action” pursuant to IAS guidelines.
(Docket No. 70 at ¶¶ 81-82.)
After concluding the investigation,
Mercado and Avilez decided to issue a final corrective action to
Colon that would function as a final warning to her.
Id. at ¶ 89.
At no time did Mercado or Avilez consider suspending Colon without
pay or terminating her employment.
Id. at ¶ 91.
Because each of
these actions were not adverse individually, viewing them combined
makes no significant legal difference.
Finally, because Colon did
not object to the R&R’s finding that her resignation was voluntary,
and that she failed to satisfy the objective “reasonable person”
test required for evaluating adverse employment action, the Court
accepts that portion of the R&R.
Co., 548 U.S. at 57.
See Burlington N. & Santa Fe Ry.
Civil No. 10-2220 (FAB)
V.
24
Conclusion
Colon’s objections to the R&R do not highlight any disputed
fact that is material to her case.
Not only has she failed to
establish a prima facie case of retaliation, she has not carried
her burden of proving that IAS’s stated rationale for its business
decisions was merely pretextual.
“Workplaces are rarely idyllic
retreats,” and Colon has not provided enough evidence to permit a
reasonable jury to find in her favor on her claims under federal
and state law.
See Marrero v. Goya of Puerto Rico, Inc., 304 F.3d
7, 23 (1st Cir. 2002) (internal quotation omitted).
Because the
Court’s role is not to be a “vehicle for judicial review of
business decisions,” summary judgment for defendants is proper.
See Gray v. New England Tel. and Tel. Co., 792 F.2d 251, 255 (1st
Cir. 1986).
For the reasons expressed above, the Court ADOPTS Magistrate
Judge Velez-Rive’s R&R and GRANTS the defendants’ motion for
summary judgment.
In accordance with this order and the order at
docket number 43, this case is DISMISSED, with prejudice. Judgment
shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 21, 2012.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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