Vazquez-Robles v. Commoloco, Inc.
Filing
226
OPINION AND ORDER re 184 Motion for Summary Judgment: GRANTED IN PART and DENIED IN PART. Summary judgment is GRANTED in favor of CommoLoCo as to plaintiff Vazquez's hostile work environment, discriminatory termination, retaliation and termi nation without just cause claims. These claims are DISMISSED WITH PREJUDICE. Summary judgment is DENIED as to plaintiff Vazquez's failure to accommodate claim. The Court will hold a pre-trial evidentiary hearing to determine whether Vazquez s uffered from a severe mental disability such that the Court should equitably toll the statute of limitations and find Vazquez's failure to accommodate claim timely. Pretrial evidentiary hearing will be held on August 19, 2016 commencing at 9:00 a.m. in Courtroom 2 before Judge Francisco A. Besosa. Signed by Judge Francisco A. Besosa on 05/13/2016. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIBEL VAZQUEZ-ROBLES,
Plaintiff,
Civil No. 12-1600 (FAB)
v.
COMMOLOCO, INC.,
Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Maribel Vazquez-Robles (“Vazquez”) brought suit against her
former employer,
CommoLoCo,
Inc.
(“CommoLoCo”),
alleging that
CommoLoCo discriminated against her on the basis of her disability,
in violation of the Americans with Disabilities Act (“ADA”) and
Puerto Rico Law 44; retaliated against her in violation of the ADA,
Title VII of the Civil Rights Act of 1964 (“Title VII”), and Puerto
Rico Law 115; and dismissed her without just cause in violation of
Puerto Rico Law 80.1
(Docket No. 1.)
Before the Court is CommoLoCo’s motion for summary judgment.
(Docket No. 184.)
Vazquez opposed the motion, (Docket No. 202),
and CommoLoCo replied, (Docket No. 212).
For the reasons that
follow, CommoLoCo’s motion for summary judgment is GRANTED IN PART
and DENIED IN PART.
1
Plaintiff Vazquez also brought a claim pursuant to Article 1802
of the Puerto Rico Civil Code, P.R. Laws Ann. tit 31, § 5141, which
is Puerto Rico’s general tort statute. (Docket No. 1.) Vazquez
voluntarily dismissed this claim. See Docket Nos. 28-29.
Civil No. 12-1600 (FAB)
I.
2
SUMMARY JUDGMENT STANDARD
A court will grant summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“A dispute
is genuine if the evidence about the fact is such that a reasonable
jury could resolve the point in the favor of the non-moving party.
A fact is material if it has the potential of determining the
outcome of the litigation.”
Dunn v. Trs. of Boston Univ., 761 F.3d
63, 68 (1st Cir. 2014) (quoting Patco Const. Co. v. People’s United
Bank, 684 F.3d 197, 206 (1st Cir. 2012)).
The role of summary judgment is to “pierce the boilerplate of
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.” Tobin v. Fed. Exp. Corp., 775
F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts Univ. Sch. of
Med., 976 F.2d 791, 794 (1st Cir. 1992)).
“When the nonmovant
bears the burden of proof on a particular issue, she can thwart
summary judgment only by identifying competent evidence in the
record sufficient to create a jury question.”
Id. at 450-51.
The
Court draws all reasonable inferences from the record in the light
most favorable to the nonmovant, but it disregards unsupported and
conclusory allegations.
Cir. 2014).
McGrath v. Tavares, 757 F.3d 20, 25 (1st
Civil No. 12-1600 (FAB)
II.
A.
3
FACTUAL BACKGROUND
Hired and Rehired
Vazquez worked for CommoLoCo during two periods.
First, she
worked for about seven years and five months, from July 2, 1990,
until she resigned on November 26, 1997.
pp. 2-3.)2
(Docket No. 185-6 at
CommoLoCo rehired Vazquez on July 1, 2002, as branch
manager of the Morovis branch.
(Docket No. 185-2 at p. 7.)
In
July 2009, CommoLoCo assigned Vazquez as branch manager of the
Carolina II branch.
B.
Id. at p. 11.
Injury, First Leave of Absence, and Return to Work
On December 24, 2009, Vazquez suffered a work-related injury
to her back.
(Docket No. 208-1 at pp. 3, 6-7.)
She reported the
injury to the Puerto Rico State Insurance Fund Corporation (“SIFC”)
on December 28, 2009.
Id. at pp. 6-9.
The SIFC placed Vazquez on
rest for about a month and a half, and she returned to work on
February 11, 2010.
(Docket No. 185-3 at p. 4.)
After returning to
work, Vazquez continued to receive medical and therapy treatment
for her injury, and she was able to attend those appointments while
working as branch manager.
Id. at pp. 16, 22, 24.
Vazquez had a cervical sprain, a lumbar sacral sprain, and a
herniated disc in the lumbar sacral area.
2
(Docket No. 101 at pp.
When citing to deposition transcripts, the Court uses the page
numbers generated by the electronic case filing system on the
docket, not the original page numbers of the transcripts.
Civil No. 12-1600 (FAB)
105-106.)
4
As a result, she was unable to sit or stand for long
periods of time and needed a cane to walk.
C.
Id. at p. 108.
Request for a Demotion
On March 22, 2010, Vazquez requested a temporary demotion to
assistant manager because performing her branch manager duties
while attending medical and therapy appointments was causing her a
lot of stress.
(Docket Nos. 185-8 at p. 2; 185-3 at p. 40.)
On April 7, 2010, CommoLoCo’s human resources manager, Yarisis
Vega (“Vega”), sent Vazquez forms for Vazquez and her physician to
complete.
(Docket Nos. 185-9 at p. 2; 185-10 at pp. 8-14.)
Vega
advised Vazquez that she had to return the forms by April 28, 2010,
to
enable
CommoLoCo
to
evaluate
her
request
for
a
demotion.
(Docket No. 185-10 at p. 8.)
Each time Vazquez went to a therapy session, which was three
times a week, Vega would ask Vazquez about the forms and remind her
to submit them by the due date.
(Docket No. 185-4 at pp. 30, 32.)
On May 28, 2010, Vega sent Vazquez a letter explaining that
because Vazquez had not submitted the forms, Vazquez’s request for
an accommodation was considered closed.
2.)
(Docket No. 185-11 at p.
Vazquez responded by email on June 8, 2010, asking CommoLoCo
to keep her request open because she was still waiting for the SIFC
physician to complete the form.
(Docket No. 185-12 at p. 2.)
On
that same day, Vega replied and indicated that CommoLoCo would
Civil No. 12-1600 (FAB)
5
proceed with her request for a reasonable accommodation as soon as
it received the completed forms.
(Docket No. 185-13 at p. 2.)
On July 21, 2010, the SIFC sent a letter to Vega recommending
that
CommoLoCo
not
assign
Vazquez
tasks
that
entail
great
responsibilities and high levels of stress because the stress would
worsen her medical condition.
(Docket No. 185-14 at p. 2.)
Vazquez also completed and submitted to CommoLoCo a two-page form
titled “Form to Request Reasonable Accommodation (ADA).”
No. 185-16 at pp. 3-4.)
(Docket
On the form, Vazquez explained that as
branch manager, it worried her to have to leave her personnel alone
when she went to medical and therapy appointments.
Id. at p. 3.
She requested to be assigned to an assistant manager position,
which she thought would be better for her because she would not
have to be in the office at all times.
Id. at p. 4.
On August 24, 2010, Vega informed Vazquez that based on the
information provided by the SIFC and Vazquez concerning her request
for a demotion, as well as CommoLoCo’s business needs, CommoLoCo
had decided to consider Vazquez for a customer account specialist
(“CAS”) position.
(Docket No. 185-17 at p. 2.)
Vazquez rejected
the CAS position and asked to be reconsidered for an assistant
manager position.
D.
See Docket Nos. 185-5 at p. 24; 185-22 at p. 2.
First Administrative Charge and Second Leave of Absence
On September 1, 2010, Vazquez filed a charge against CommoLoCo
with the Puerto Rico Anti-Discrimination Unit (“ADU”), alleging
Civil No. 12-1600 (FAB)
that
CommoLoCo
6
discriminated
against
Vazquez
because
of
her
disability by denying her request to be demoted to an assistant
manager position.
(Docket No. 185-23.)
On September 21, 2010, the SIFC placed Vazquez on rest for one
year due to her emotional condition.
(Docket No. 185-5 at pp. 36,
38.) During that year, Vazquez was mentally impaired to the extent
that friends and relatives had to bathe her, drive her places, and
sometimes feed her.
(Docket No. 202-2 at p. 8.)
On August 25, 2011, while still on her one-year leave of
absence, Vazquez withdrew her administrative charge.
(Docket Nos.
202-2 at p. 11; 214-7 at p. 2; 214-8 at p. 2.)
E.
Return to Work and Performance Evaluation
On September 21, 2011, after her one-year leave of absence,
Vazquez returned to work.
(Docket No. 185-5 at p. 38.)
She was
reinstated to her branch manager position and received the same pay
and benefits that she had received before her leave of absence.
Id. at pp. 46, 48.
On September 30, 2011, nine days after returning to work,
Vazquez received an evaluation for the work that she had performed
from January through July of 2010.
(Docket No. 208-2 at p. 11.)
The evaluation rated Vazquez’s performance as “unsatisfactory” for
twelve out of fourteen managerial performance factors. (Docket No.
202-17 at pp. 7, 9, 11.)
Civil No. 12-1600 (FAB)
F.
7
Branch Closings and Termination
On October 3, 2011, CommoLoCo closed four branches, including
the Carolina II branch where Vazquez worked, due to the lack of
sufficient growth in Puerto Rico’s economy.
See Docket Nos. 185-1
at p. 2; 185-7 at p. 1; 202-8 at p. 2.
Before closing these
branches, CommoLoCo had closed other branches in Puerto Rico as
part of a reduction in force.
See Docket Nos. 185-1 at p. 2; 185-5
at p. 40.
Four branch manager positions were eliminated when CommoLoCo
closed four branches in October 2011.
10.)
(Docket No. 202-18 at p.
At the time, there were two other branches in Puerto Rico
that had open branch manager positions. Id. CommoLoCo offered two
of the four branch managers whose positions were eliminated the
opportunity to transfer to these two open positions.
(Docket No.
202-8 at p. 2.) CommoLoCo decided which employees would be offered
transfers based on the length of time the employees had worked at
CommoLoCo.
Id. at p. 3.
Accordingly, branch managers Marivel
Lorenzo (who was hired on November 18, 1985) and Maribel Rivera
Rosario (who was hired on January 27, 1995) were transferred to the
open positions.
(Docket No. 202-18 at p. 10.)
Vazquez and the
fourth branch manager (who was hired on July 18, 1995) were
terminated.
Id.
Because Vazquez did not report to work on October 3, she was
notified of the branch closing and of her termination on October 4,
Civil No. 12-1600 (FAB)
2011.
8
(Docket No. 185-1 at p. 2.)
All Carolina II branch
employees were laid off when the branch closed.
(Docket No. 185-5
at p. 44.)
G.
Second Administrative Charge and This Lawsuit
On October 25, 2011, Vazquez filed a charge with the Equal
Employment Opportunity Commission (“EEOC”) alleging that CommoLoCo
discriminated against her because of her disability and retaliated
against her by giving her a negative evaluation and terminating
her.
(Docket No. 185-24.)
On June 1, 2012, the EEOC issued
Vazquez a right-to-sue letter.
(Docket No. 212-2.)
brought this suit on July 26, 2012.
III.
Vazquez
(Docket No. 1.)
DISABILITY DISCRIMINATION CLAIMS
The ADA makes it unlawful to “discriminate against a qualified
individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment.”
42 U.S.C. § 12112(a).
Puerto Rico
Law 44, P.R. Laws Ann. tit 1, §§ 501 et seq., mirrors the ADA, and
on the merits, claims brought pursuant to the two statutes are
coterminous.
See Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76,
87 (1st Cir. 2008) (affirming dismissal of ADA and Law 44 claim and
noting that Law 44 claim required no separate summary judgment
analysis).
Civil No. 12-1600 (FAB)
Plaintiff
Vazquez
9
brings
three
claims pursuant to the ADA and Law 44:
disability
discrimination
(1) that CommmoLoCo failed
to provide her with a reasonable accommodation when it denied her
request for a temporary demotion; (2) that CommoLoCo subjected her
to a hostile work environment; and (3) that CommoLoCo terminated
her because
of
her
disability.
CommoLoCo
moves
for
summary
judgment on each claim.
A.
Failure to Accommodate Claim
CommoLoCo argues that it is entitled to summary judgment on
Vazquez’s failure to accommodate claim on the merits and because
the claim is time-barred.
The Court addresses the merits argument
first.
1.
Merits
The
ADA
requires
employers
to
offer
“reasonable
accommodations” to disabled employees, unless the employer “can
demonstrate that the accommodation would impose an undue hardship
on the operation of the [employer’s] business.”
12112(b)(5)(A).
42 U.S.C. §
A plaintiff asserting a failure to accommodate
claim must establish the following three elements:
(1) that she
had a disability as defined by the ADA; (2) that she was able to
perform the essential functions of her job with or without a
reasonable accommodation; (3) that the employer, despite knowing of
Civil No. 12-1600 (FAB)
10
her disability, did not offer a reasonable accommodation.3
Lang v.
Wal-Mart Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016).
CommoLoCo moves for summary judgment on only the first and third
elements, arguing that Vazquez did not suffer from a disability and
that
CommoLoCo
did
offer
Vazquez
a
reasonable
accommodation.
(Docket No. 184 at pp. 8-9, 11-14.)
a.
Disability
A person is disabled within the meaning of the ADA
if she has “a physical or mental impairment that substantially
limits
one
or
more
major
life
activities.”
42
U.S.C.
§
12102(1)(A). “[M]ajor life activities include, but are not limited
to, caring for oneself, performing manual tasks, . . . walking,
standing, lifting, bending, . . . and working.” Id. § 12102(2)(A).
Congress has instructed that the definition of disability in the
ADA “shall be construed in favor of broad coverage of individuals
under [the ADA], to the maximum extent permitted by the terms of
[the ADA].”
Id. § 12102(4)(A).
Here,
defendant
CommoLoCo
argues
tersely
that
Vazquez did not have a disability because she admitted that she
could still perform the duties of her position.
p. 8.)
3
This admission is immaterial.
(Docket No. 184 at
In fact, a plaintiff must be
The McDonnell Douglas burden-shifting framework, which the Court
will use to evaluate Vazquez’s discriminatory termination claim,
does not apply to failure to accommodate claims. See Higgins v.
New Balance Athletic Shoe, Inc., 194 F.3d 252, 263-64 (1st Cir.
1999).
Civil No. 12-1600 (FAB)
able
to
perform
the
11
functions
of
her
job,
with
or
without
reasonable accommodations, to assert a failure to accommodate
claim.
See Lang, 813 F.3d at 454.
Vazquez put forth sufficient
evidence to show that her back injury limited her ability to stand
and walk, see Docket No. 101 at pp. 108, 111, which are “major life
activities” pursuant to the ADA, 42 U.S.C. § 12102(2)(A).
The
Court therefore rejects CommoLoCo’s argument that Vazquez cannot
establish that she was disabled.
b.
Reasonable Accommodation
A “reasonable accommodation” includes “reassignment
to a vacant position.”
42 U.S.C. § 12111(9)(B).
“To show that a
proposed accommodation was reasonable, a plaintiff must prove ‘not
only that the proposed accommodation would enable her to perform
the essential functions of her job, but also that, at least on the
face
of
things,
circumstances.’”
it
is
feasible
for
the
employer
under
the
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d
6, 23 (1st Cir. 2004) (quoting Reed v. LePage Bakeries, Inc., 244
F.3d
254,
259
(1st
Cir.
2001)).
A
plaintiff
who
requests
reassignment to a different position as a reasonable accommodation
bears the burden of showing that there was a vacancy for that
position at the time of her request.
Lang, 813 F.3d at 456.
Here,
accommodation,
as
a
reasonable
Vazquez
requested to be reassigned from her branch manager position to an
assistant manager position because the SIFC recommended that she
Civil No. 12-1600 (FAB)
12
engage in less stressful tasks.
Defendant CommoLoCo argues first
that it provided Vazquez a reasonable accommodation by offering her
a CAS position.
(Docket No. 184 at pp. 12-14.)
CommoLoCo seems to
imply that because the CAS position was a low-level position, it
necessarily entailed a low level of stress. Vazquez asserts in her
deposition, however, that the CAS position was either equally as
stressful or more stressful than the branch manager position.
(Docket No. 185-5 at pp. 14, 16, 18.)
She explains that even
though it was a low-level position, it involved a lot of stress
because the CAS had to work in the front office welcoming and
assisting customers who come in to talk, fight, argue, and insult,
and because the CAS had to generate loans to meet established
goals.
Id.
Based on this testimony, a reasonable jury could
conclude that offering the CAS position was not a reasonable
accommodation for Vazquez’s disability.
CommoLoCo
next
argues
that
Vazquez’s
proposed
accommodation - reassignment from branch manager to assistant
manager - was not reasonable.
(Docket No. 184 at pp. 12-14.)
Vega
states in an affidavit that both the branch manager and assistant
manager positions entailed the same functions, the same degree of
responsibility, and the same level of stress. (Docket No. 185-1 at
p. 4.) CommoLoCo’s official job descriptions of the two positions,
however, depict different job functions and different percentages
of time spent on each function.
Compare Docket No. 185-20 at p. 4,
Civil No. 12-1600 (FAB)
with
Docket
No.
185-21
13
at
p.
3.
Vazquez
testified
in
her
deposition that the assistant manager position was less stressful
than the branch manager position.
(Docket No. 185-3 at p. 40.)
Based on this evidence, a reasonable jury could conclude that
reassignment to an assistant manager position would have been a
reasonable accommodation.
CommoLoCo’s final argument is that there was no
vacant assistant manager position to offer Vazquez.
On August 24,
2010, Vega explained to Vazquez that there were no assistant
manager positions available and that the Carolina II branch did not
have an assistant manager because Ramon Bermudez, who held the
position of finance representative, was assigned duties to support
the administration of the branch to prepare him for a branch
manager position.
(Docket No. 185-1 at p. 4.)
Vazquez stated in
her deposition, however, that there was a vacant assistant manager
position at the Carolina II branch because an employee named Raul
retired from that position in 2009.
23, 25.)
(Docket No. 185-2 at p. 21,
Vazquez explained that although Ramon Bermudez was
supposed to fill the position, he never did, and the position
remained open.
Id.
Based on this testimony, a reasonable jury
could conclude that there was a vacant assistant manager position.
Accordingly, the Court DENIES CommoLoCo’s motion for
summary judgment on the merits of Vazquez’s failure to accommodate
Civil No. 12-1600 (FAB)
14
claim brought pursuant to the ADA and Law 44 and will now discuss
whether the claim is time-barred.
2.
Timeliness
a.
ADA Claim
ADA employment discrimination claims are subject to
Title
VII’s
procedural
requirements.
42
U.S.C.
§
12117(a);
Rivera-Diaz v. Humana Ins. of P.R., Inc., 748 F.3d 387, 389 (1st
Cir. 2014). Accordingly, before bringing suit in federal court, an
ADA
plaintiff
requirements:
must
satisfy
two
administrative
exhaustion
timely file a charge with the EEOC and receive a
right-to-sue letter from the agency. Rivera-Diaz, 748 F.3d at 38990.
In Puerto Rico, the EEOC charge must be filed within 300 days
of
the
alleged
unlawful
conduct.
Id.
“Each
discrete
discriminatory act starts a new clock for filing charges alleging
that act,” and time-barred acts are not actionable, “even when they
are related to acts alleged in timely filed charges.”
Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
When
a
plaintiff
alleges
that
her
request
for
a
reasonable
accommodation pursuant to the ADA was refused, “the refusal is a
discrete discriminatory act triggering the statutory limitations
period.”
Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 129 (1st
Cir. 2009) (quoting Ocean Spray Cranberries, Inc. v. Mass. Comm’n
Against Discrimination, 808 N.E.2d 257, 268 (2004)).
Civil No. 12-1600 (FAB)
Here,
plaintiff
15
Vazquez
requested
a
temporary
demotion to an assistant manager position on March 22, 2010.
CommoLoCo denied that request on August 24, 2010.
Because denial
of a request for a reasonable accommodation is a discrete act, id.,
Vazquez had to file a charge with the EEOC within 300 days of
CommoLoCo’s denial on August 24, 2010, see Rivera-Diaz, 748 F.3d at
389-90; Morgan, 536 U.S. at 113.
Vazquez initially filed a timely
charge on September 1, 2010, but she withdrew that charge and never
received a right-to-sue letter.
She then filed a second charge,
for which she received a right-to-sue letter, but that charge was
filed on October 25, 2011, more than 300 days after CommoLoCo’s
denial of Vazquez’s request for a reasonable accommodation.
Her
failure to accommodate claim would generally be time-barred.
See
Peralta v. Rockefeller Univ., 328 F. App’x 717, 718 (2d Cir. 2009)
(citing McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 214 (2d
Cir. 2006)) (holding that claims are “time-barred where an employee
withdrew a timely-filed charge with the EEOC and then filed a
second, untimely charge, in connection with which a right-to-sue
letter was issued”).
Vazquez advances five arguments, however, as to why
her claim is not time-barred.
(Docket No. 202 at pp. 5-18.)
First, Vazquez urges the Court to apply the continuing violation
doctrine, which allows a plaintiff to recover “for discriminatory
acts that otherwise would be time-barred so long as a related act
Civil No. 12-1600 (FAB)
16
fell within the limitations period,” Tobin, 553 F.3d at 130.
Docket No. 202 at pp. 5-10.
See
It is well-settled, however, that the
continuing violation doctrine does not apply to discrete acts of
alleged discrimination.
Ayala v. Shinseki, 780 F.3d 52, 57 (1st
Cir. 2015); Tobin, 553 F.3d at 130.
“Instead, [the doctrine]
applies only to claims that cannot be said to occur on a particular
day and that by their very nature require repeated conduct to
establish an actionable claim, such as hostile work environment
claims.”
Ayala, 780 F.3d at 57.
As already discussed, denial of
a request for a reasonable accommodation is a discrete act. Tobin,
553 F.3d at 129.
Accordingly, the continuing violation doctrine
does not apply to this claim.
Second, Vazquez argues that CommoLoCo waived the
timeliness defense by not raising it before the EEOC.
202 at pp. 10-11.)
(Docket No.
In Mercado v. Ritz-Carlton San Juan Hotel, Spa
& Casino, 410 F.3d 41, 45 (1st Cir. 2005), however, the First
Circuit Court of Appeals held that a defendant does not waive a
timeliness defense by not raising it before the EEOC where, like
here, the EEOC issues a right-to-sue letter without reaching the
merits of the plaintiff’s claim, see Docket No. 212-2.
Vazquez’s
argument therefore holds no water.
Third, Vazquez argues that CommoLoCo waived its
right to raise the statute of limitations defense by asserting it
only generically in its answer to Vazquez’s complaint.
(Docket
Civil No. 12-1600 (FAB)
No. 202
at
pp.
11-14.)
17
Among
several
affirmative
defenses,
CommoLoCo stated in its answer that Vazquez’s “claims are in whole
or in part barred by the applicable statute of limitations.”
(Docket No. 144 at p. 16.)
Appeals
described
a
In 2005, the First Circuit Court of
similarly
worded
affirmative
defense
as
conclusory but sufficient because it “adequately identified the
issue.”
Mercado 410 F.3d at 45.
Vazquez argues that the higher
plausibility standard established by the Supreme Court in Bell
Atlantic Corp. v. Twombly in 2007 and Ashcroft v. Iqbal in 2009 now
should apply to affirmative defenses.
The Court is unaware of any circuit court of appeals
that has decided the issue of whether the pleading standards of
Twombly and Iqbal apply to affirmative defenses, and the district
courts are split.4
Having reviewed the conflicting district court
decisions, the Court is persuaded by the reasons offered by the
courts that have declined to apply the plausibility standard to
affirmative defenses.
4
The Court finds particularly persuasive the
Some district courts have held that the pleading standards of
Twombly and Iqbal apply to affirmative defenses. See, e.g., Barnes
v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d
1167, 1172-73 (N.D. Cal. 2010); Nixson v. The Health All., No.
1:10-CV-00338, 2010 WL 5230867, at *2 (S.D. Ohio Dec. 16, 2010).
Other district courts have declined to extend the plausibility
standard to affirmative defenses.
See, e.g., Paleteria La
Michoacana v. Productos Lacteos, 905 F. Supp. 2d 189, 193 (D.D.C.
2012); Hansen v. Rhode Island’s Only 24 Hour Truck & Auto Plaza,
Inc., 287 F.R.D. 119, 123 (D. Mass. 2012); Tyco Fire Products LP v.
Victaulic Co., 777 F. Supp. 2d 893, 900 (E.D. Pa. 2011); Falley v.
Friends Univ., 787 F. Supp. 2d 1255, 1259 (D. Kan. 2011); Lane v.
Page, 272 F.R.D. 581, 591 (D.N.M. 2011).
Civil No. 12-1600 (FAB)
18
five reasons given in Paleteria La Michoacana v. Productos Lacteos,
905 F. Supp. 2d 189 (D.D.C. 2012).
The court in that case
explained that in Twombly and Iqbal, the Supreme Court interpreted
Federal Rule of Civil Procedure 8(a)(2), which sets forth the
pleading
requirements
for
a
complaint
and
“employs
different
language, governs a different pleading, and affects a different
stage of the litigation” than Federal Rule of Civil Procedure 8(c),
which governs affirmative defenses.
Paleteria, 905 F. Supp. 2d at
190, 193. The court also explained that “plaintiffs and defendants
do not share an equal footing when it comes to the speed with which
they must craft their pleadings”; while a plaintiff chooses when to
file a complaint, a defendant must typically submit an answer
within twenty-one days of being served.
Id. at 191.
For these and
the other reasons set forth in Paleteria, the Court concludes that
Twombly and Iqbal do not apply to affirmative defenses.
An
affirmative defense asserted in an answer need not be plausible to
be preserved, it must merely identify the issue adequately.
Mercado, 410 F.3d at 45.
See
CommoLoCo preserved its statute of
limitations defense by adequately identifying it in its answer.
The Court therefore rejects Vazquez’s waiver argument.
Fourth, Vazquez argues that her untimeliness should
be forgiven pursuant to the doctrine of equitable tolling because
CommoLoCo never posted an EEOC notice in the workplace.
No. 202 at pp. 14-17.)
(Docket
“[A]n employer’s violation of the EEOC
Civil No. 12-1600 (FAB)
19
posting requirement may provide a . . . basis for an extended
filing
period
where
the
employee
had
no
other
actual
constructive knowledge of [the] complaint procedures.”
or
Mercado,
410 F.3d at 46 (internal quotation marks and citation omitted).
“[A]ctual knowledge occurs when an employee becomes generally aware
that [s]he possesses a legal right to be free from the type of
discrimination [s]he has alleged,” and does not require “specific
awareness of the 300–day statutory filing period.”
Id. at 48.
Regardless of whether CommoLoCo complied with the EEOC posting
requirement, plaintiff Vazquez demonstrated that she had actual
knowledge of the administrative complaint procedures when she filed
her first complaint on September 1, 2010.
Because she had actual
knowledge of the complaint procedures eight days after the discrete
act of discrimination occurred, her equitable tolling argument
based on EEOC posting requirements fails.
Fifth, Vazquez argues that the statutory period
should be tolled because she was suffering from mental illness
while on a year-long leave of absence from September 2010 through
September 2011.
(Docket No. 202 at pp. 17-18.)
Equitable tolling
based on mental illness is available “only if the plaintiff show[s]
that the mental disability was so severe that the plaintiff was
unable to engage in rational thought and deliberate decision making
sufficient
to
pursue
[her]
claim
alone
or
through
counsel.”
Vazquez-Rivera v. Figueroa, 759 F.3d 44, 50 (1st Cir. 2014) (first
Civil No. 12-1600 (FAB)
20
alteration in original) (quoting Melendez-Arroyo v. Cutler-Hammer
de P.R. Co., 273 F.3d 30, 37 (1st Cir. 2001)).
This is a high bar,
and “merely . . . establish[ing] a diagnosis such as severe
depression is not enough.”
Melendez-Arroyo, 273 F.3d at 38.
In Melendez-Arroyo, the plaintiff offered expert
diagnoses and “affidavit or deposition evidence from herself and
her sister” that “her state was so impaired that she had to live
with her sister and that for some of the time she was unable to
manage even such basic functions as getting dressed and brushing
her teeth.”
Id.
Even though the employer refuted this by pointing
to notes from a state insurance fund interview with the employee
describing her behavior as logical and coherent, the First Circuit
Court of Appeals concluded that the plaintiff “raised a factual
dispute about her capacity that could not be resolved solely on the
papers.”
Id.
The court remanded to the district court to hold an
evidentiary hearing to determine whether equitable tolling based on
the plaintiff’s
mental
disability
was
warranted.
Id.
at
39
(holding that although it concerns a factual dispute, the question
of whether equitable tolling should apply is for the judge, not the
jury); see also Nunnally v. MacCausland, 996 F.2d 1, 7 (1st Cir.
1993) (remanding to district court to hold evidentiary hearing on
equitable tolling based on mental disability where plaintiff showed
a probable diagnosis of paranoid schizophrenia).
Civil No. 12-1600 (FAB)
21
Here, the SIFC placed Vazquez on rest for one year
due to an unspecified emotional condition.
pp. 36, 38.)
(Docket No. 185-5 at
Vazquez states in an affidavit signed under penalty
of perjury that during “almost a year,” she was “mentally impaired
to the extent that her son, sisters and friends had to clean her,
bath[e] her, drive[] her and sometimes feed her.” (Docket No. 2022 at p. 8.)
Defendant CommoLoCo disputes this fact by arguing that
it is based on Vazquez’s “speculation or conjecture” and that it is
“conclusory and completely unsupported by adequate record evidence
beyond Vazquez’[s] self-serving statement.”
p. 17.)
(Docket No. 214 at
Vazquez’s statement as to her mental condition is not
speculative
because
it
is
based
on
her
personal
experience.
Furthermore, a plaintiff may submit an affidavit to defend against
summary judgment as long as the statements in the affidavit do not
contradict
her
prior
testimony.
Universidad
Metropolitana,
233
F.3d
Cf.
49,
Hernandez-Loring
54
(1st
Cir.
v.
2000).
CommoLoCo has not identified testimony in Vazquez’s deposition that
contradicts that statement in her affidavit, and the Court has
found no inconsistency in the record.
CommoLoCo also points to Vazquez’s prior testimony
to show that she attended three hearings before the ADU between
September 1, 2010, and August 25, 2011, presumably to imply that
her attendance means she was able to engage in rational decisionmaking during that period.
(Docket No. 212 at p. 9.)
Vazquez’s
Civil No. 12-1600 (FAB)
22
testimony, however, was that three hearings were held during that
period.
(Docket No. 101 at p. 97.)
attended the hearings.
Id.
She did not testify that she
Furthermore, she testified that no
conclusions were reached as a result of the hearings because she
was “still on rest” and “the attorney said that [she] was not in
any capacity to make any decisions.”
Id.
This is consistent with
the statement in her affidavit and further supports her argument
that she suffered from a severe mental disability that rendered her
unable to engage in deliberate decision making.
The Court finds that Vazquez has raised a factual
dispute as to whether she suffered from a mental disability so
severe that the Court should toll the limitations period.
The
record on this issue, however, is too underdeveloped for the Court
to determine solely on the papers whether equitable tolling is
warranted. A pre-trial evidentiary hearing is therefore necessary.
See Melendez-Arroyo, 273 F.3d at 38. During the hearing, plaintiff
will have the burden of proving that her mental disability “was so
severe that [she] was unable to engage in rational thought and
deliberate decision making sufficient to pursue [her] claim alone
or through counsel.”
Vazquez-Rivera, 759 F.3d at 50 (quoting
Melendez-Arroyo, 273 F.3d at 37).
Vazquez will also have the
Civil No. 12-1600 (FAB)
23
burden of proving that this severe mental disability lasted for at
least 127 days between August 24, 2010, and October 25, 2011.5
The Court therefore DENIES summary judgment as to
Vazquez’s failure to provide a reasonable accommodation claim
brought pursuant to the ADA.
The Court will hold a pre-trial
evidentiary hearing to determine whether Vazquez suffered from a
severe mental disability during a period of at least 127 days
between August 24, 2010, and October 25, 2011, such that the Court
should equitably toll the 300-day statute of limitations and find
Vazquez’s ADA failure to accommodate claim timely.
b.
Law 44 Claim
A one-year statute of limitations applies to Law 44
claims.
Toledo-Colon v. Puerto Rico, 812 F. Supp. 2d 110, 119
(D.P.R. 2011) (Gelpi, J.).
Defendant CommoLoCo did not move for
summary judgment based on this one-year statute of limitations, nor
did it argue that Vazquez’s Law 44 claim is otherwise time-barred
based on an administrative exhaustion requirement.
See Docket
No. 184 at p. 24 (moving for summary judgment on Vazquez’s Law 44
claim only on the merits).
Neither party presented arguments or
authority as to whether equitable tolling based on mental illness
5
The 300-day clock started on August 24, 2010, the day CommoLoCo
denied Vazquez’s request for a demotion to assistant manager.
Vazquez filed an administrative charge 427 days later, on October
25, 2011. Thus, Vazquez’s claim is timely only if the Court tolls
the limitation period for at least 127 days.
Civil No. 12-1600 (FAB)
24
is recognized for Law 44 claims.
Vazquez’s Law 44 failure to
accommodate claim therefore survives summary judgment.
B.
Hostile Work Environment Claim
To establish a hostile work environment claim, a plaintiff
must show, in addition to other elements, “that her workplace was
‘permeated with discriminatory intimidation, ridicule, and insult
that [was] sufficiently severe or pervasive to alter the conditions
of
.
.
.
[her]
employment
and
create
an
abusive
working
environment.’” Colon-Fontanez v. Mun. of San Juan, 660 F.3d 17, 43
(1st
Cir.
2011)
(first
alteration
in
original)
(quoting
Quiles-Quiles v. Henderson, 439 F.3d 1, 7 (1st Cir. 2006)).
To
determine whether harassing conduct is sufficiently severe or
pervasive, courts consider the totality of the circumstances,
including the severity and frequency of the conduct and whether it
unreasonably interfered with the plaintiff’s work performance. Id.
at 44; see Quiles-Quiles, 439 F.3d at 7 (affirming hostile work
environment finding where plaintiff “was subject to daily ridicule
about his mental impairment”); Arrieta-Colon v. Wal-Mart P.R.,
Inc., 434 F.3d 75, 89 (1st Cir. 2006) (same where plaintiff was
subject to “constant mockery and harassment . . . by fellow
co-workers and supervisors alike due to his condition”).
Finally,
the conduct complained-of must be “objectively and subjectively
offensive, one that a reasonable person would find hostile or
abusive, and one that the [plaintiff] in fact did perceive to be
Civil No. 12-1600 (FAB)
so.”
25
Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir. 2005)
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
Here, Vazquez maintains that Vega created a hostile work
environment by “excessively” reminding her to complete and submit
the forms that were necessary for CommoLoCo to evaluate Vazquez’s
request for a demotion.
(Docket No. 202 at pp. 32-33.)
Vazquez
stated in her deposition that each time she went to a therapy
session, which was three times a week, Vega would ask Vazquez about
the forms and remind her to submit them by the due date.
No. 185-4 at pp. 30, 32.)
She stated that Vega would call Vazquez
and say “Look, Maribel, the documents, are they ready?
approaching.”
Id. at p. 32.
a state of tension.”
(Docket
The time is
Vega’s “insistence” put Vazquez “in
Id.
Although Vazquez found Vega’s insistence to be offensive, a
reasonable person would not find it hostile or abusive.
Vega’s
reminders were never accompanied by ridicule, insults, or threats.
It is reasonable for a human resources manager to give reminders
about approaching administrative due dates.
Perhaps Vega should
have decreased the frequency of the reminders after realizing that
they were causing Vazquez stress.
described
managerial
authority
as
unprofessional,
approach
are
Colon-Fontanez,
not
660
and
the
Even if this frequency could be
“a
supervisor’s
accompanying
focus
F.3d
at
of
44
efforts
the
unprofessional
to
assert
discrimination
(quoting
her
laws.”
Lee-Crespo
v.
Civil No. 12-1600 (FAB)
26
Schering-Plough Del Caribe Inc., 354 F.3d 34, 46-47 (1st Cir.
2003)).
Vazquez also bases her hostile work environment claim on
CommoLoCo’s denial of her request to be temporarily demoted to
assistant manager.
(Docket No. 202 at p. 33.) The evidence shows,
however, that CommoLoCo handled her request in a professional and
respectful manner:
Vega spoke with her on the phone and in-person
about the request; Vega mailed and emailed Vazquez forms to be
completed by her and her physician; even though Vazquez did not
submit the forms by the due date, Vega agreed that CommoLoCo would
proceed with her request as soon as it received the completed
forms; Vega spoke with Vazquez over the phone about CommoLoCo’s
decision to offer her a CAS position, and followed up by sending a
cordial email.
185-17.)
(Docket Nos. 185-4 at p. 2; 185-9; 185-10; 185-13;
None of these communications was hostile, abusive,
insulting, or harassing.
Absent harassing conduct, CommoLoCo’s
denial of Vazquez’s request for a temporary demotion did not create
a hostile work environment.
Finally, Vazquez asserts that CommoLoCo created a hostile work
environment by giving her an unsatisfactory performance evaluation
on September 30, 2011, nine days after she returned from her yearlong leave of absence, for work that she had performed from January
through July of 2010.
(Docket No. 202 at p. 33.)
Again, Vazquez
does not claim that this evaluation was accompanied by any type of
Civil No. 12-1600 (FAB)
27
discriminatory ridicule, mockery, or insult.
The evaluation also
did not alter the conditions of her employment; there is no
evidence that she received a demotion or decrease in salary as a
result.
Vazquez was terminated four days later when her branch
closed, but there is no evidence that her unsatisfactory evaluation
contributed to the decision to terminate her. See Docket No. 185-7
(explaining that decision of which branch managers to transfer when
four branches closed was based on seniority, not performance).
Even considering the evidence in the light most favorable to
Vazquez, the Court concludes that no reasonable jury could find
that CommoLoCo subjected Vazquez to disability-based harassment
that was so severe or pervasive that it altered the conditions of
The Court therefore GRANTS summary judgment in
her employment.
favor
of
defendant
CommoLoCo
as
to
Vazquez’s
hostile
work
environment claim brought pursuant to the ADA and Law 44.
C.
Discriminatory Termination Claim
When
a
plaintiff
relies
on
only
indirect
evidence
of
discrimination to prove her ADA claim, as Vazquez does here, the
First
Circuit
Court
of
Appeals
applies
the
burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).
Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 186
(1st Cir. 2011).
Pursuant to this framework, the plaintiff must
first make out a prima facie disability discrimination claim by
establishing (1) that she has a disability within the meaning of
Civil No. 12-1600 (FAB)
28
the ADA; (2) that she was qualified to perform her job, with or
without reasonable accommodations; (3) that she was subject to an
adverse
employment
action;
(4)
that
she
was
replaced
by
a
non-disabled person or was treated less favorably than non-disabled
employees; and (5) that she suffered damages as a result.
Id.
If
the plaintiff establishes a prima facie claim, “the burden shifts
to the employer to articulate a legitimate, non-discriminatory
reason for its action.”
Id. at 186-87.
“If the employer offers a
non-discriminatory reason, the burden then shifts back to the
plaintiff to show that the employer’s justification is mere pretext
cloaking discriminatory animus.”
Here,
Vazquez’s
defendant
ability
CommoLoCo
to
make
Id. at 187.
does
out
a
not
challenge
prima
facie
plaintiff
disability
discrimination claim based on her termination in October 2011.6
Rather, CommoLoCo assumes that Vazquez can establish a prima facie
claim and then asserts that closing its Carolina II branch as part
of a reduction in force was a legitimate, non-discriminatory reason
for terminating Vazquez.
(Docket No. 184 at pp. 9-11.)
Vazquez
responds by arguing that the alleged reduction in force was pretext
for discrimination.
6
(Docket No. 202 at pp. 18-22, 26-27.)
Although CommoLoCo challenges Vazquez’s failure to accommodate
claim by arguing that she was not disabled when she requested an
accommodation in 2010, see Docket No. 184 at p. 8, CommoLoCo
presents no argument as to why plaintiff Vazquez was not disabled
when it terminated her in October 2011.
Civil No. 12-1600 (FAB)
Following
the
29
parties’
lead,
the
Court
assumes
without
deciding that Vazquez can establish a prima facie disability
discrimination claim based on her termination.
Because CommoLoCo
articulated a non-discriminatory reason for terminating Vazquez,
the burden is now back on Vazquez to show that CommoLoCo’s reason
is “pretext cloaking discriminatory animus.” Ramos-Echevarria, 659
F.3d at 187.
Vazquez must clear two hurdles to meet her burden:
she must prove that CommoLoCo’s given reason for terminating her is
a sham, and she must advance evidence to show that the true reason
CommoLoCo terminated her was her disability.
See Tobin, 433 F.3d
at 105; Thompson v. Coca-Cola Co., 522 F.3d 168, 177 (1st Cir.
2008).
To clear the first hurdle, a plaintiff may demonstrate that
the employer’s articulated reason “had no basis in fact, did not
actuate the termination, or was insufficiently weighty to motivate
such a decision.”
Webber v. Int’l Paper Co., 417 F.3d 229, 237
(1st
see
Cir.
2005);
also
Santiago-Ramos
v.
Centennial
P.R.
Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000) (noting that a
plaintiff
can
establish
pretext
by
showing
“weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons” (quoting Hodgens v.
Gen. Dynamics Corp., 144 F.3d 151, 168 (1st Cir. 1998))).
Plaintiff
does
not
attack
the
legitimacy
of
CommoLoCo’s
decision to close the Carolina II branch as part of a reduction in
Civil No. 12-1600 (FAB)
force.
30
Instead, she challenges CommoLoCo’s decision to decline to
offer her a transfer when her branch closed, like it did for two
other branch managers whose branches closed on the same day.
(Docket No. 202 at pp. 18-22, 26-27.)
CommoLoCo decided who to
transfer based on seniority, and it calculated seniority by the
amount of time the employee had worked for CommoLoCo.
Nos. 185-7; 208-2 at p. 13.
basis
or
otherwise,
this
See Docket
Vazquez does not challenge, on a legal
method
for
determining
seniority.7
Instead, she argues that she was more senior than Maribel Rivera
Rosario (“Rivera”), a branch manager who was offered a transfer.
She makes this argument without calculating how long she and Rivera
worked for CommoLoCo.
Doing the math reveals that her argument is
all smoke and no fire.
CommoLoCo hired Rivera on January 27, 1995.
18 at p. 10.)
(Docket No. 202-
By the time her branch closed on October 3, 2011,
she had worked for CommoLoCo for 6,094 days.
Plaintiff Vazquez first worked for CommoLoCo from July 2, 1990
until November 26, 1997 - a total of 2,705 days.
185-6 at pp. 2-3.
CommoLoCo then rehired Vazquez on July 1, 2002.
(Docket No. 185-2 at p. 7.)
7
See Docket No.
When her branch closed on October 3,
Vazquez acknowledges that for “seniority porpoises [sic],
[CommoLoCo] took into account the period [Vazquez] worked from 1990
until 1997 and from 2002 until her employment was terminated,” even
though “for benefits and company porpoises [sic], [CommoLoCo] took
into account the years [Vazquez] was not working with [CommoLoCo].”
(Docket No. 202 at p. 27.)
Civil No. 12-1600 (FAB)
31
2011, her second period working for CommoLoCo totaled 3,382 days.
In sum during these two periods, Vazquez worked for CommoLoCo for
6,087 days - seven days less than Rivera.
senior, albiet
challenge
to
by
the
only
seven
factual
days,
basis
Thus, Rivera was more
than
for
Vazquez.
Vazquez’s
CommoLoCo’s
seniority
determination therefore fails..
Vazquez advances no other argument as to why CommoLoCo’s
articulated reason for terminating her is a sham.
cleared the first hurdle of her burden.
She thus has not
She makes no attempt at
clearing the second hurdle, and the Court finds no evidence on the
record from which a reasonable jury could conclude that CommoLoCo
or Vega had a disability-based discriminatory animus that motivated
the decision to terminate Vazquez.
The Court therefore GRANTS summary judgment in favor of
defendant CommoLoCo as to Vazquez’s discriminatory termination
claim brought pursuant to the ADA and Law 44.
IV.
A.
RETALIATION CLAIMS
ADA
The
ADA’s
retaliation
provision
makes
it
unlawful
to
“discriminate against any individual because such individual has
opposed any act or practice made unlawful by [the ADA] or because
such individual made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under
[the ADA].”
42 U.S.C. § 12203(a).
“[A]n ADA plaintiff need not
Civil No. 12-1600 (FAB)
32
succeed on a disability discrimination claim in order to assert a
claim for retaliation.”
Colon-Fontanez, 660 F.3d at 36.
When a plaintiff tries to prove retaliation through indirect
evidence, the First Circuit Court of Appeals applies the familiar
burden-shifting framework.
F.3d 86, 92 (1st Cir. 2014).
Collazo-Rosado v. Univ. of P.R., 765
The plaintiff must first make out a
prima facie retaliation claim by establishing (1) that she engaged
in
protected
conduct;
(2)
that
she
experienced
an
adverse
employment action; and (3) that there was a causal connection
between the protected conduct and the adverse employment action.
Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir.
2013).
If she makes a prima facie showing, the burden shifts to
the employer to articulate a legitimate, non-retaliatory reason for
its employment action, and then back to the plaintiff to show that
the offered reason is pretext cloaking the employer’s retaliatory
animus.
Id.
Here, plaintiff Vazquez establishes the first element of a
prima facie claim.
She engaged in protected conduct by requesting
SIFC leave on December 28, 2009; by requesting a temporary demotion
on March 22, 2010; by filing a charge with the ADU on September 1,
2010; and by requesting SIFC leave on September 21, 2010.
U.S.C.
§
12203(a);
Kelley,
707
F.3d
at
115
See 42
(“Requesting
an
accommodation is protected conduct under the ADA’s retaliation
provision.”); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d
Civil No. 12-1600 (FAB)
33
638, 647 (1st Cir. 2000) (“[A] medical leave of absence . . . is a
reasonable accommodation under the [ADA] in some circumstances.”).
As to the second element, to establish an adverse employment
action in a retaliation claim, a plaintiff must show that “a
reasonable
employee
would
have
found
the
challenged
action
materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.”
Colon-Fontanez,
660
F.3d
at
36
(internal
quotation marks and citations omitted) (quoting Burlington N. &
Santa Fe
Ry.
Co.
v.
White,
548
U.S.
53, 68
(2006)).
“For
retaliatory action to be material, it must produce ‘a significant,
not trivial, harm.’”
Id. (quoting Carmona-Rivera v. Puerto Rico,
464 F.3d 14, 20 (1st Cir. 2006)).
employment
actions
when
she
Vazquez experienced adverse
received
a
negative
performance
evaluation on September 30, 2011, and when she was terminated on
October 4, 2011.
See id. (“[U]nwarranted negative job evaluations
. . . may constitute adverse employment action, subject to the
facts of a particular case.”); Valle-Arce v. P.R. Ports Auth., 651
F.3d
190,
198
(1st
Cir.
2011)
(“[T]ermination
of
employment
obviously is an adverse employment action.”).
Vazquez stumbles on the third element of a prima facie claim.
After listing her protected activities and the adverse employment
actions she experienced, Vazquez explains in the most conclusory
fashion:
“In view of the above[,] it was because of the protected
Civil No. 12-1600 (FAB)
34
activities executed by Plaintiff that Defendant took those adverse
actions against Plaintiff.”
(Docket No. 202 at p. 37.)
Leaving
the Court to do her work for her, Vazquez points to no evidence in
the record to prove a causal connection between her protected
activities and the adverse actions.
It is not the Court’s job “to
put flesh on the bare bones of an underdeveloped argument.” United
States v. Mathur, 624 F.3d 498, 508 (1st Cir. 2010).
Because
Vazquez bears the burden of proving a prima facie claim, “she can
thwart summary judgment only by identifying competent evidence in
the record sufficient to create a jury question.”
Tobin, 775 F.3d
at 450-51.
The record reveals no evidence suggesting a causal connection
between Vazquez’s protected conduct and the adverse actions she
experienced.
A
plaintiff
may
rely
on
“very
close
temporal
proximity between the protected action by the employee and the
adverse employment action by the employer [to] give rise to an
inference
of
causation.”
Valle-Arce,
651
F.3d
at
199;
see
Sanchez-Rodriguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 15
(1st Cir. 2012) (holding that span of three months between filing
EEOC complaint and being disciplined was “close enough to suggest
causation”); Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 38
(1st Cir. 2010) (holding that span of four days between requesting
reasonable accommodation and being terminated is sufficient to
establish prima facie claim but insufficient to prove pretext and
Civil No. 12-1600 (FAB)
35
retaliatory animus); Calero-Cerezo, 355 F.3d at 25-26 (holding that
span of one month between filing EEO complaint and being suspended
was sufficient to establish prima facie claim, but noting that
“[t]hree and four month periods have been held insufficient to
establish a causal connection based on temporal proximity”). Here,
more than a year passed between Vazquez’s last protected activity,
requesting SIFC leave on September 21, 2010, and her first adverse
employment action, receiving a negative performance evaluation on
September 30, 2011.
More than a year is not “very close temporal
proximity” that would give rise to an inference of causation.
See
Valle-Arce, 651 F.3d at 199.
Thus, even viewing the record in the light most favorable to
Vazquez, a reasonable jury could not infer a causal connection
between Vazquez’s protected conduct and the adverse actions she
experienced.
Vazquez thus fails to establish the third element of
a prima facie retaliation claim.
Accordingly, the Court GRANTS
summary judgment in favor of defendant CommoLoCo as to Vazquez’s
ADA retaliation claim.
B.
Title VII
Title VII makes it unlawful for an employer to retaliate
against an employee “because he has opposed any practice made an
unlawful employment practice by [Title VII], or because he has made
a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].”
42
Civil No. 12-1600 (FAB)
U.S.C. § 2000e-3(a).
36
The employment practices made unlawful by
Title VII are those that discriminate against an individual because
of the individual’s “race, color, religion, sex, or national
origin.”
Id. § 2000e-2(a)(1).
Although Vazquez identifies Title VII as the cause of action
for her retaliation claim in her complaint, (Docket No. 1 at pp.
17-18), she never alleges, in her complaint or anywhere in the
record, that she opposed CommoLoCo’s discrimination against her
based on her race, color, religion, sex, or national origin, or
that she made a charge pursuant to Title VII.
allegations
of
retaliation
are
rooted
in
All of Vazquez’s
CommoLoCo’s
alleged
disability discrimination, and the retaliation provision of the ADA
is the proper cause of action for these claims.
See 42 U.S.C. §
12203(a).
The Court therefore GRANTS summary judgment in favor of
defendant CommoLoCo as to Vazquez’s Title VII retaliation claim.
C.
Law 115
Law 115 makes it unlawful for an employer to “discharge,
threaten, or discriminate against an employee regarding the terms,
conditions, compensation, location, benefits or privileges of the
employment should the employee offer or attempt to offer . . . any
testimony,
expression
or
information
before
administrative or judicial forum in Puerto Rico.”
tit. 29 § 194a.
a
legislative,
P.R. Laws. Ann.
Civil No. 12-1600 (FAB)
37
In Feliciano Martes v. Sheraton, 182 P.R. Dec. 368, 395-99,
(2011), the Puerto Rico Supreme Court adopted and applied the
McDonnell Douglas burden-shifting framework to Law 115 claims. The
Puerto Rico Supreme Court specifically held that the plaintiff has
the initial burden of establishing a prima facie claim by showing
(1) that she engaged in protected conduct; (2) that she experienced
an adverse employment action; and (3) that there was a causal nexus
between the protected conduct and the adverse action.
Feliciano
Martes, 182 P.R. Dec. at 396.
Here, the factual basis for Vazquez’s Law 115 claim is the
same as the factual basis for her ADA retaliation claim.
Docket No. 1 at pp. 17-18.
See
CommoLoCo moves for summary judgment on
Vazquez’s Law 115 claim on the same grounds that it moved for
summary judgment on her ADA retaliation claim, (Docket No. 184 at
p. 24), and Vazquez agrees that the claims are coterminous, (Docket
No. 202 at p. 37).
Accordingly, for the same reasons the Court granted summary
judgment on Vazquez’s ADA retaliation claim, see supra Part IV. A,
the Court GRANTS summary judgment in favor of defendant CommoLoCo
as to Vazquez’s Law 115 retaliation claim.
V.
TERMINATION WITHOUT JUST CAUSE CLAIM
Puerto Rico Law 80 requires employers to compensate employees
who are terminated without just cause.
185a.
P.R. Laws Ann. tit 29, §
Once an employee establishes that she was terminated, the
Civil No. 12-1600 (FAB)
38
employer must show that the termination was for just cause.
Cruz
v. Bristol-Myers Squibb Co., PR, 699 F.3d 563, 572 (1st Cir. 2012).
The burden then shifts back to the employee to rebut this showing.
Id.
Just cause may be founded on the “[f]ull, temporarily [sic] or
partial closing of the operations of the establishment.” P.R. Laws
Ann. tit 29, § 185b(d).
If “the company has more than one office,
factory, branch or plant, the full, temporary or partial closing of
operations of any of these establishments shall constitute just
cause for discharge.”
Id.
Here, CommoLoCo has shown that it terminated Vazquez because
it closed the Carolina II branch, of which she was the branch
manager, as part of a reduction in force due to the lack of growth
in Puerto Rico’s economy.
Although Vazquez attempts to rebut this
showing by arguing that the real reason she was terminated was
CommoLoCo’s discriminatory and retaliatory animus, she has not put
forth evidence from which a reasonable jury could infer this cause.
See supra Parts III. C; IV. A.
Accordingly, the Court GRANTS
summary judgment in favor of defendant CommoLoCo as to Vazquez’s
Law 80 claim.
VI.
CONCLUSION
For the reasons explained above, the Court GRANTS IN PART and
DENIES IN PART defendant CommoLoCo’s motion for summary judgment,
(Docket No. 184).
Civil No. 12-1600 (FAB)
39
Summary judgment is GRANTED in favor of CommoLoCo as to
plaintiff Vazquez’s hostile work environment and discriminatory
termination claims brought pursuant to the ADA and Law 44; her
retaliation claims brought pursuant to the ADA, Title VII, and
Law 115; and her termination without just cause claim brought
pursuant to Law 80.
These claims are DISMISSED WITH PREJUDICE.
Summary judgment is DENIED as to plaintiff Vazquez’s failure
to accommodate claim brought pursuant to the ADA and Law 44.
The
Court
will
hold
a
pre-trial
evidentiary
hearing
to
determine whether Vazquez suffered from a severe mental disability
during a period of at least 127 days between August 24, 2010, and
October 25, 2011, such that the Court should equitably toll the
300-day statute of limitations and find Vazquez’s ADA failure to
accommodate claim timely.
That pretrial evidentiary hearing will
be held on August 19, 2016 commencing at 9:00 a.m.
IT IS SO ORDERED.
San Juan, Puerto Rico, May 13, 2016.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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