Sanchez-Bonilla v. Shinseki

Filing 14

OPINION AND ORDER denied 7 Motion for Judgment on the Pleadings/Motion to Dismiss; exhibits to 10 Opposition to Motion for Judgment on the Pleadings/Motion to Dismiss are STRICKEN from the record. Signed by Judge Carmen C. Cerezo on 1/18/2012. (mld)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIA SANCHEZ-BONILLA
Plaintiff
vs

CIVIL 11-1322CCC

ERIC K. SHINSEKI, Secretary, Department of
Veterans Affairs
Defendant

OPINION AND ORDER
María Sánchez-Bonilla (Sánchez) has filed this action pursuant to Title VII and Age
Discrimination in Employment Act (ADEA) alleging age discrimination, a hostile work
environment, and retaliation by her employer, the Department of Veterans Affairs, (the VA)
for having filed a charge with the Equal Employment Opportunity Commission (EEOC). The
case is now before us on the Motion for Judgment on the Pleadings Pursuant to Rule 12(c)
and Motion to Dismiss Pursuant to Rule 12(b)(6) filed by defendant Eric K. Shinseki,
Secretary of the VA (docket entry 7), which plaintiff opposed (docket entry 10).
A.

Pleading Standards
Under Fed. R. Cv. P. 8(a)(2), a pleading must contain a “short and plain statement

of the claim showing that the pleader is entitled to relief.” While the rule does not require
a detailed factual allegation, it does demand more than an unadorned, “the
defendant-unlawfully-harmed-me” accusation.

Iqbal v. Ashcroft, 129 S.Ct. 1937,

1949 (2009). A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. Bell Atlantic v.

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2

Twombly, 550 U.S. 544, 570 (2008). The court must be able to draw the reasonable
inference that the defendant is liable for the misconduct alleged. Id., at 556.
The plausibility standard is not akin to a “probability requirement,” but it asks
for more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility.”
Iqbal, supra, at 1949.
The tenet that a court must accept as true all the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, doe not suffice. Twombly, supra, at 555.
Section 1983 requires three elements for liability: deprivation of a right, a causal
connection between the actor and the deprivation, and state action. 42 U.S.C. § 1983. “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, at 1949.
We, thus, must conduct our analysis by first identifying the allegations of the
complaint that are no more than legal conclusions, which are not to be considered, and then
zero on the well-pleaded non-conclusory factual allegations to determine whether they, by
itself, plausibly give rise to an entitlement to relief.
B.

Factual Allegations
Sánchez, who is over 50 years old, alleges in her complaint that she commenced

working as a psychiatrist for the VA on September 2, 2000 as a staff physician practicing as
a psychiatrist. She contends that she was given only the institutional orientations given to
all newly hired employees. That is, she was not given a functional statement or position
description of her duties or any training related to her job performance or execution of duties.
She states that she was not aware of the required evaluations, competence assessment and
specific service responsibilities, nor were the responsibilities and protocols for the Mental
Health Clinic that she was supposed to implement explained to her.

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3

Sánchez further contends that her supervisor, Dr. Reyes-Rabanillo (Reyes), whom
she avers is younger than 40 years old, was rude and uncooperative and, therefore,
“[p]laintiff was forced to learn by experience the Agency’s regulations and her expected
duties.” Complaint, at ¶15. Plaintiff further alleges that Reyes would demean her and her
experience and reprimand her for allegedly failing to follow applicable regulations, impose
changes in treatment for her patients and threaten her with the loss of her position.
Sánchez avers that Reyes created a tense work environment, and that Reyes’ action against
her violated the state code of medical ethics. Reyes also allegedly gave her a lower
evaluation purportedly based on patients’ complaints without granting her an opportunity to
reply, while other younger physicians under Reyes supervision were not reprimanded or
placed on performance improvement plans.
Sánchez further contends that she was unjustly given an unsatisfactory performance
rating and was placed on a performance improvement plan. On July 29, 2009, plaintiff
received an email from Dr. Angie Zayas, that labeled plaintiff’s professional conduct as
worrisome. (¶36). Thereafter, plaintiff filed her EEOC complaint. After Reyes became the
service chief, Zayas became her new supervisor. Zayas, too, allegedly gave her a negative
evaluation. Plaintiff then filed a second EEOC charge.
C.

Analysis
Defendant contends that plaintiff cannot establish a prima facie case of age

discrimination, and that defendant did not retaliate against plaintiff. As can be discerned
from both the motion and the opposition, Sánchez’ filed two charges with the EEOC: the first
for age discrimination and hostile work environment and a second one for age discrimination
and reprisal. In her opposition, Sánchez challenges defendant’s conclusion that she fails

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4

to state a claim by identifying various actions which she contends are material adverse
changes in the terms and conditions of her employment.1
A review of Sánchez’ complaint reflects that she has stated factual allegations
creating a hostile work environment. Also, she does alleges employment actions taken
against her that could be considered adverse. Absent direct evidence of discrimination,
which Sánchez has not averred, in order to plead a prima facie cause of action for age
discrimination, she must show: (1) that she was at least forty years old when the events
occurred; (2) that she was qualified for the position; (3) that she suffered an adverse
employment action; and (4) that others similarly situated but outside the protected group
received more favorable treatment. Mzyk v. North East Independent School District,
397 Fed. Appx. 13, 15 (5th Cir. 2010).
Plaintiff alleges that she was over 50 years at the time of the events. While she
points to her years of experience as evidence of her qualifications, it is clear from her own
allegations that there is an issue of fact as to her quality of her performance of her duties;
most of the alleged adverse actions relate to her supervisor’s poor opinion of her abilities
and job performance. The acts alleged, such as placing her in a performance improvement
plan, giving her an unsatisfactory performance appraisal and placing her in a Focused
Professional Practice Evaluation, if unwarranted, could be considered by a jury as adverse
employment actions. Sánchez has also averred that patients complained about other
younger physicians under Reyes-Rabanillo’s supervision, but these physicians were not

1

In an effort to bolster in her opposition, instead of requesting to amend it, plaintiff has
submitted five exhibits totaling 53 pages, including deposition testimony, in support of her
opposition. These exhibits are STRICKEN. This is not a motion for summary judgment; it
is a motion to dismiss, based on the pleadings alone. “[T]he Court is under no duty to
exercise imagination and conjure what a plaintiff might have alleged, but did not, and do
counsel’s work for him or her. It is enough to view the basic complaint. In this instance the
complaint failed to contain the allegations which plaintiff now wishes called to mind.” Pinto
v. Universidad de Puerto Rico, 895 F.2d 18, 19 (1st Cir. 1990).

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5

reprimanded and/or placed in performance improvement plans. (¶24). Therefore, plaintiff
has stated the elements of an age discrimination claim.
With regard to the claim for retaliation, Sánchez states in her complaint that, after she
filed her first EEOC charge, Zayas, as her new supervisor, gave her a negative evaluation
using the same language used by Reyes (¶41), and as a consequence of filing the second
EEOC charge, “her performance pay has been lowered even though she continues to have
more than 600 patients and has to work long hours.” (¶44).
Plaintiff having stated claims and raised relevant issues of material fact which defeat
disposition at this early procedural stage, defendant’s Motion for Judgment on the Pleadings
Pursuant to Rule 12(c) and Motion to Dismiss Pursuant to Rule 12(b)(6) (docket entry 7)
is DENIED.
SO ORDERED.
At San Juan, Puerto Rico, on January 18, 2012.

S/CARMEN CONSUELO CEREZO
United States District Judge