Carrasco v. Shinseki

Filing 37

OPINION AND ORDER granting motion for summary judgment 30 . Signed by US Magistrate Judge Marcos E. Lopez on 9/24/2013. (MT) Modified on 9/27/2013 to correct date it was signed (ab).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ALBERTO CARRASCO-LOZADA
Plaintiff
v.

CIVIL NO.: 12-1736 (MEL)

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

OPINION AND ORDER
I.

PROCEDURAL BACKGROUND
On July 28, 2009 plaintiff filed a charge with the Equal Employment Opportunity

Commission (“EEOC”) alleging that his employer had discriminated against him based on his
age, by giving him a lower pay grade for positions he occupied. See ECF No. 13, at 1. Plaintiff
did not request a hearing before an EEOC administrative judge; therefore, his complaint was
decided by the Office of Employment Discrimination Complaint Adjudication (“OEDCA”). Id.
The OEDCA issued a Final Agency Decision on December 15, 2009, finding that no
discrimination had occurred. Id. Plaintiff filed a complaint with the U.S. District Court on
September 8, 2012 alleging claims pursuant to the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq. See ECF No. 1, at 1. The complaint also alleges a cause of
action under the Constitution of the United States of America; however, no particular provision
is cited. Id. On February 22, 2013, the Secretary of the Department of Veterans Affairs
(“defendant”) filed a motion to dismiss the complaint, arguing that plaintiff had not included the
allegations of discrete acts of discrimination contained in paragraphs 18-24 of the complaint filed
with the court in his complaint before the EEOC, and thus did not properly exhaust the

administrative remedies. See ECF No. 15, at 2. Additionally, defendant argued that plaintiff
failed to comply with the requirements of the “bypass option,” which allows employees to
bypass administrative remedies and sue directly in federal district court. Id. at 5-8. The court
granted the motion to dismiss the allegations contained in paragraphs 18-24 of the complaint and
entered partial judgment on May 7, 2013. See ECF No. 29.
On July 15, 2013, defendant filed a motion for summary judgment pursuant to Fed. R.
Civ P. 56(c). See ECF No. 30. In particular, the motion for summary judgment alleges that: (1)
plaintiff cannot maintain a prima facie case of age discrimination under the McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) burden-shifting analysis because plaintiff cannot meet his
burden of demonstrate that younger, similarly-situated employees were treated more favorably;
and (2) that defendant had a legitimate, nondiscriminatory reason for denying plaintiff a
promotion because it acted in compliance with the mandatory Office of Personnel Management
(OPM) consistency review and followed OPM guidelines in doing so. See ECF No. 30-1, at 3-6.
Plaintiff filed his response to the motion for summary judgment on July 15, 2013,
contending that defendant presented no evidence that any other employee’s pay grade was
reclassified prior to the consistency review, and therefore strong circumstantial evidence of age
discrimination exists. See ECF No. 31, at 2-3. Defendant filed a reply to plaintiff’s opposition
motion on August 8, 2013, contending that plaintiff failed to demonstrate that defendant
discriminated against him based on his age. See ECF No. 34, at 2. The reply also noted that
plaintiff’s opposition motion failed to establish defendant’s reasons are pretext for
discrimination. See id.
II.

UNCONTESTED FACTS
Plaintiff was born on April 5, 1952 and was over forty years old at the time of the alleged

discriminatory employment action. See ECF Nos. 30-1, at 5; 1 ¶ 17. On December 28, 2007,
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the Department of Veterans Affairs (“DVA”) sent plaintiff a memorandum notifying him that he
was selected for the position of Patient Services Assistant at the GS-7 level, with an effective
date of January 6, 2008. See ECF Nos. 30-2, 3; 31-1 ¶ 1. On January 23, 2008 the DVA issued
a corrected notice to plaintiff, which indicated that he had been selected for a Patient Services
Assistant position at the GS-6 level, with a target grade level of GS-7, effective January 20,
2008.1 See ECF Nos. 30-2, 3; 31-1 ¶ 1.
In February 2008, the OPM initiated and mandated a consistency review in order to
review positions with similar duties and responsibilities to the Patient Relations Assistant
position plaintiff held. See ECF Nos. 30-2, ¶ 3; 31-1, ¶ 3. On appeal to the OPM, the status of
the position of Patient Relations Assistant was adjudicated, resulting in a downgrading of the
position from GS-7 to GS-5. See ECF Nos. 30-2, ¶ 3; 31-1, ¶ 3. This OPM decision mandated
that the DVA review the classification of related positions, including the Patient Services
Assistant position, for the purpose of ensuring consistency with the OPM decision. See ECF
Nos. 30-2, ¶ 3; 31-1, ¶ 3. In March 6, 2008, the OPM instructed the DVA Central Office, which
instructed San Juan DVA Medical Center Human Resources staff in turn, that no new hires to
any of the positions under review should be recruited at a level higher than GS-5 until the review
was completed. See ECF Nos. 30-2, ¶ 4; 31-1, ¶ 4. Additionally, no employee holding a
position that was under review was to be promoted until the review was completed. See ECF
Nos. 30-2, ¶ 4; 31-1, ¶ 4.
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The parties both acknowledge that these two memoranda were sent from the DVA to plaintiff, but dispute the
collective effect of these notices. See ECF Nos. 31-1 ¶ 1-2; 34. Plaintiff contends that he was “appointed” to a GS7 position via the December 28, 2007 letter, and that this appointment was “rescinded” via the letter dated January
28, 2008. See ECF No. 31-1 ¶ 1-2. In his opposition to defendant’s motion for summary judgment, plaintiff argues
that defendant’s discriminatory act was appointing plaintiff to a GS-7 position and rescinding the appointment, not
the reclassification of the position during the consistency review. See ECF No. 31, at 2-3. In its reply to plaintiff’s
opposition to motion for summary judgment, defendant argues that plaintiff’s assessment that he was “appointed” to
a GS-7 position and that it was later “rescinded” is incorrect, and that the January 23, 2008 notice was corrected to
indicate the appropriate grade to which plaintiff was actually being appointed, i.e. GS-6 with a target grade of GS-7.
See ECF No. 34, at 1-2.
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Plaintiff completed his probationary period at the GS-6 level on January 20, 2009. See
ECF Nos. 30-2, ¶ 5; 31-1, ¶ 5. His inquiry regarding his eligibility for a promotion to GS-7 was
forwarded to Gloria Sole, who provided him with an official DVA response informing him that
because his position was under a consistency review, his promotion to GS-7 could not be
processed until the DVA Central Office provided further instructions. See ECF Nos. 30-2, ¶ 5;
31-1, ¶ 5. In a letter dated June 3, 2009, the DVA notified plaintiff that as a result of the
consistency review, the position he retained had been reclassified from a GS-6 to a GS-5 level
position, effective June 29, 2009. See ECF Nos. 30-2, ¶ 6; 31-1, ¶ 6. Only those employees
whose positions were covered by the consistency review who had already retained positions at
the GS-7 level for more than a year at the time the review began were entitled to grade and pay
retention at the GS-7 level. See ECF Nos. 30-2, ¶ 7; 31-1, ¶ 7. All other employees were only
entitled to grade and pay retention at the GS-6 level. See ECF Nos. 30-2, ¶ 7; 31-1, ¶ 7.
Including plaintiff, a total of seventeen employees working in plaintiff’s facility whose positions
were covered by the consistency review did not retain GS-7 level grade and pay benefits,
because they were not at the GS-7 level for more than a year before the review started. See ECF
Nos. 30-2, ¶ 8; 31-1, ¶ 8. Of those seventeen employees, thirteen of them were under age 40 in
2009. See ECF Nos. 30-2, ¶ 8; 31-1, ¶ 8.
III.

LEGAL ANALYSIS
A. Summary Judgment Standard
Summary judgment may be entered only if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party
moving for summary judgment bears the burden of showing the absence of a genuine issue of
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material fact. See Celotex, 477 U.S. at 323 (1986). After the moving party has satisfied this
burden, the nonmoving party must “set forth specific facts showing that there is a genuine issue
for trial.” Fed. R. Civ. P. 56(e).
To avoid summary judgment, the contested facts must be “material” and the dispute must
be “genuine”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Material” means
that a contested fact has the potential to change the outcome of the suit under governing law. Id.
The issue is “genuine” when a reasonable jury could return a verdict for the nonmoving party
based on the evidence. Id. It is well settled that “[t]he mere existence of a scintilla of evidence”
is insufficient to defeat a properly supported motion for summary judgment. Id. at 252. It is
therefore necessary that “a party opposing summary judgment must ‘present definite, competent
evidence to rebut the motion.’” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st
Cir. 1994) (quoting Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1993)).
In making this assessment, the court “must view the entire record in the light most
hospitable to the party opposing summary judgment, indulging in all reasonable inferences in
that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). The court may
safely ignore “conclusory allegations, improbable inferences, and unsupported speculation.”
Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citing Rossy v.
Roche Prod., Inc., 880 F.2d 621, 624 (1st Cir. 1989)). However, there is “no room for credibility
determinations, no room for the measured weighing of conflicting evidence such as the trial
process entails, [and] no room for the judge to superimpose his own ideas of probability and
likelihood (no matter how reasonable those ideas may be).” Greenburg v. P. R. Mar. Shipping
Auth., 835 F. 2d 932, 936 (1st Cir. 1987).

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When considering a request for summary judgment, unsettled issues of motive and intent
as to the conduct of any party will normally preclude the court from granting summary judgment.
Mulero-Rodríguez v. Ponte, Inc., 98 F. 3d 670, 677 (1st Cir. 1996) (reversing summary judgment
and emphasizing that “‘determinations of motive and intent . . . are questions better suited for the
jury’”). However, “‘even in cases where elusive concepts such as motive or intent are at issue,
summary judgment may be appropriate if the nonmoving party rests merely upon conclusory
allegations, improbable inferences [or] unsupported speculation.’”

Ayala-Genera v. Bristol

Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996) (quoting Goldman v. First Nat’l Bank of
Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)).
B. Standard under the ADEA
The Age Discrimination in Employment Act (“ADEA”) makes it unlawful for an
employer “to discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1) (2000). In an ADEA discrimination case, the plaintiff
bears the burden of proving “that age was ‘the reason’ that the employer decided to act.” Gross
v. FBL Financial Services, Inc., 557 U.S. 167, 68 (2009) (citing Hazen Paper Co. v. Biggins, 507
U.S. 604, 610 (1993). The ADEA does not authorize a plaintiff to bring mixed-motive age
discrimination cases in which age is only a “motivating factor” in the employer’s decision. See
Gross, 557 U.S. at 175-76. It requires a plaintiff “to prove by a preponderance of the evidence
(which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged
employer decision.” Id. at 177-78 (citing Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 141-44 (2000).

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Where there is little overt evidence of discrimination and the plaintiff is relying on
circumstantial evidence, he or she must make a prima facie case according to the McDonnellDouglas burden-shifting framework in order to survive a motion for summary judgment. RiveraAponte v. Rest. Metropol #3, Inc., 338 F.3d 9, 11 (1st Cir. 2003). Thus, the employee must
establish that: (1) he or she is within the ADEA’s protected age ground--over forty years of age;
(2) his or her job performance met the employer’s legitimate performance expectations; (3) that
he or she suffered an adverse employment action; and (4) that defendant “did not treat age
neutrally or retained younger persons in the same position.” See Pages-Cahue v. Iberia Lineas
Aereas de España, 82 F.3d 533, 536 (1st Cir. 1996) (citing Woodman v. Haemonetics Corp., 51
F.3d 1087, 1091 (1995); Vega v. Kodak Caribbean, Ltd. 3 F.3d 476, 479 (1st Cir. 1993)). The
required prima facie showing is not especially burdensome.

See Greenberg v. Union Camp

Corp., 48 F.3d 22, 26 (1st Cir. 1995); Sánchez v. P.R. Oil Co., 37 F.3d 712, 719 (1st Cir. 1994),
Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 n. 4 (1st Cir. 1994).
Establishing a prima facie case “gives rise to an inference that the employer
discriminated due to the plaintiff’s advanced years.” Mesnick, 950 F.2d at 823. While the
burden of persuasion remains at all times with the plaintiff, the prima facie case shifts the burden
of production to the employer, who must then articulate a legitimate, nondiscriminatory reason
for the adverse employment action. Id. The shift to the employer “entails only a burden of
production, not a burden of persuasion.” Id. (citing Texas Dept. Of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981); Medina-Muñoz, 896 F.2d at 9). If the employer meets this
limited burden, the presumption created by the prima facie disappears. St. Mary’s Honor Ctr. v.
Hicks, 277 F.3d 40, 45 (2002). Plaintiff then has the opportunity to show that the employer’s
reason is a pretext for discrimination, allowing the factfinder to infer “discriminatory animus.”
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See Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 448 (1st Cir. 2009); González v.
El Día, Inc., 304 F.3d 63, 69 (1st Cir. 2002). Throughout this burden-shifting process the
plaintiff retains the ultimate burden of proving that unlawful discrimination based on the
plaintiff’s age was the “but-for” cause of the challenged employment action. See Palmquist v.
Shinseki, 689 F.3d 66, 74 (1st Cir. 2012) (citing Gross, 557 U.S. at 175-77); González, 304 F.3d
at 69. “In the context of a summary judgment proceeding, once the employer articulates a
legitimate, nondiscriminatory basis for its adverse employment decision, the plaintiff, ‘before
becoming entitled to bring the case before the trier of fact, must show evidence sufficient for the
factfinder reasonably to conclude that the employer’s decision . . . was wrongfully based on
age.’” Pages-Cahue, 82 F.3d at 536 (quoting LeBlanc v. Great American Ins. Co., 6 F.3d 836,
843 (1993)).
C. Application to the Present Case
Plaintiff has not brought to the attention of the court any specific reference to the record
indicating that direct evidence of overt age discrimination exists. Absent such direct evidence of
discrimination, his ADEA claim must be evaluated under the McDonnell Douglas burdenshifting framework. See Cameron v. Idearc Media Corp., 685 F.3d 44, 48 (1st Cir. 2012).
Defendant explicitly concedes that plaintiff can establish that he was within the ADEA’s
protected age group, and that he was subjected to an adverse employment action. See ECF No.
30-1 at 4-5. Additionally, while defendant does not acknowledge the second prong of the prima
facie case that the employee met the employer’s legitimate job expectations, it does not contest
that plaintiff’s job performance was satisfactory. Thus, there is no genuine issue of material fact
with regard to plaintiff’s ability to meet its burden with regard to the first three prongs of a prima
facie case under the ADEA.
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To succeed in an age discrimination case with circumstantial evidence, a plaintiff must
establish a prima facie case under McDonnell Douglas. See Greenberg, 48 F.3d at 26. Plaintiff
has not established a genuine issue of material fact with regard to the fourth element of a prima
facie age discrimination case, because he has not pointed to any specific facts that suggest
defendant did not act neutrally with respect to plaintiff’s age when undertaking the challenged
employment actions, namely the decisions regarding the assignment of his pay grade. Reading
the record in the light most favorable to the plaintiff, there are no facts to create a reasonable
inference supporting the fourth element of a prima facie case of age discrimination.
Plaintiff’s principal argument in opposing defendant’s motion for summary judgment is
that defendant did not “rescind” the classification of any other employee prior to the
commencement of the consistency review in February 2008. See ECF No. 31, at 2. Plaintiff
asserts that based on the fact that defendant has not identified any other employee who
experienced the same alleged adverse employment action, “strong circumstantial evidence exists
that defendant discriminated against [him] based on his age.” Id. While establishing a prima
facie case under the McDonnell Douglas framework is not a heavy burden, it does require
“evidence adequate to create an inference that an employment decision was based on a[n]
[illegal] discriminatory criterion.” O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312
(1996) (citing Teamsters v. United States, 431 U.S. 324, 358 (1977)). Being over forty years of
age and experiencing a particular adverse employment action, absent additional circumstances, is
insufficient to establish the requisite inference of age discrimination. If it were sufficient, then
establishing the first and third prong of a prima facie ADEA claim would satisfy the fourth prong
as well, effectively rendering the fourth prong redundant as an independent requirement.
Accordingly, some additional evidence must be presented to demonstrate that defendant “did not
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treat age neutrally or retained younger persons in the same position.” See Pages-Cahue, 82 F.3d
at 536 (citing Woodman v. Haemonetics Corp., 51 F.3d at 1091). Plaintiff has not brought any
other evidence to the court’s attention from which it can logically be inferred that defendant
discriminated against him based on his age. Therefore, plaintiff has not established a prima facie
case of age discrimination.
In opposing defendant’s motion for summary judgment, plaintiff appears to misconstrue
the initial burden of persuasion in this case. He suggests that in order to succeed on its motion
for summary judgment, defendant must demonstrate it took the same challenged employment
actions that he alleges he suffered, against other employees. See ECF No. 31, at 2 (“Defendant
has presented no evidence that it rescinded the promotion of any employee other than Mr.
Carrasco, so it is not entitled to summary judgment.”).

Under the McDonnell Douglas

framework in ADEA cases, that is not a burden that defendant must carry. Defendant’s only
burden under this framework is the burden of production to articulate a legitimate,
nondiscriminatory reason for its actions after plaintiff has established a prima facie case of
discrimination. See Greenberg, 48 F.3d at 26. Because plaintiff has failed to do so, we need not
analyze whether defendant has met the aforementioned burden of production at this time.
Even if, arguendo, plaintiff could establish a prima facie case of age discrimination, no
rational factfinder could find for plaintiff as to the requisite discriminatory animus and “but-for”
causation standard. See Palmquist v. Shinseki, 689 F.3d 66, 74 (1st Cir. 2012) (citing Gross, 557
U.S. at 175-77); González, 304 F.3d at 69. Whether plaintiff was initially appointed to a GS-7
position that was later “rescinded” on January 28, 2008, as he asserts, is immaterial to the
outcome in this decision. See ECF No. 31-1 ¶ 1-2. It is uncontested that the following month,
the OPM adjudicated the classification of plaintiff’s Patient Relations Assistant position,
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resulting in a mandatory downgrading of the classification of this position from GS-7 to GS-5.
See ECF Nos. 30-2, ¶ 3; 31-1, ¶ 3. Only employees who had been working in a GS-7 position
for greater than one year were entitled to retain their GS-7 pay grade, irrespective of their ages.
See ECF Nos. 30-2, ¶ 7-8; 31-1, ¶ 7-8. In the material properly before the court, plaintiff has
offered no support for the contention that any of the employer’s challenged employment actions
were motivated by his age or that the employer’s proffered reason was pretext for discrimination.
Accordingly, no jury could infer that defendant’s “decision[s] [were] motivated by age animus.”
Connell v. Bank of Boston, 924 F.2d 1169, 1172 n. 3 (1st Cir. 1991). Plaintiff cannot defeat
defendant’s motion for summary judgment “if the record is devoid of adequate direct or
circumstantial evidence of the employer’s discriminatory intent,” as is true in this case. PagesCahue, 82 F.3d at 537.
Defendant, as the party moving for summary judgment in this case, does bear the ultimate
burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
For issues where the nonmoving party bears the ultimate burden of proof, however, that party
cannot merely “rely on the absence of competent evidence” to demonstrate its cause of action, as
plaintiff has done. McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). Plaintiff
has not “set forth specific facts showing that there is a genuine issue for trial” sufficient to defeat
the motion for summary judgment, therefore his claim should be dismissed. Fed. R. Civ. P.
56(e).
IV.

CONCLUSION

For the reasons explained above, defendant’s motion for summary judgment, ECF No.
30, is GRANTED.
IT IS SO ORDERED.
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In San Juan, Puerto Rico, this 24th day of September, 2013.

s/Marcos E. López
U.S. MAGISTRATE JUDGE

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