Rios v. United States Department of Commerce et al
Filing
47
STATEMENT OF REASONS IN SUPPORT OF 45 AMENDED ORDER GRANTING MOTION TO DISMISS PURSUANT TO RULE 12(B)(6) AND 46 AMENDED JUDGMENT. Signed by Judge Carmen C. Cerezo on 5/2/2018. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LYNN R. RIOS CAMPBELL
Plaintiff
vs
U.S. DEPARTMENT OF COMMERCE;
HON. PENNY S. PRITZKER,
Secretary of Commerce, in her official
capacity
Defendants
CIVIL 15-1189CCC
STATEMENT OF REASONS IN SUPPORT OF AMENDED ORDER
GRANTING MOTION TO DISMISS PURSUANT TO RULE 12(B)(6)
(D.E. 45) AND AMENDED JUDGMENT (D.E. 46)
After defendants’ Motion for Summary Judgment (d.e. 19) was
considered as a Motion to Dismiss for failure to state a plausible claim under
Fed. R. Civ. P. 12(b)(6), the Court entered on March 29, 2018 its Order
(d.e. 42)1 dismissing the Second Amended Complaint . Judgment was entered
that same date (d.e. 43).2 The Court noted that a Statement of Reasons would
follow. This is said Statement of Reasons.
We briefly reiterate the standard applicable when reviewing motions to
dismiss. To survive such a motion, a complaint must comport with the minimal
requirements set forth in Federal Rule of Civil Procedure 8(a)(2) as interpreted
by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937 (2009). Although Rule 8(a)(2) requires only “a short plain statement of
the claim showing that the pleader is entitled to relief,” Iqbal requires “factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949,
1
An Amended Order Nunc Pro Tunc was entered on May 2, 2018 (see d.e. 45).
2
An Amended Judgment Nunc Pro Tunc was entered on May 2, 2018 (see d.e. 46).
CIVIL 15-1189CCC
2
commonly referred to as an inference of liability. This involves a two-step
process. First, conclusory statements must be disregarded, and, second, the
remaining factual assertions must, when read together, make a plausible, not
merely possible, case for relief. Id. at 1949-50. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, will
not suffice. Id. The complaint must be dismissed “where the well-pleaded
facts do not permit the court to infer more than the mere possibility of
misconduct . . . .” Id. at 1950.
The Second Amended Complaint filed by plaintiff Lynn R. Ríos Campbell
on December 23, 2015 (d.e. 15-1) invokes the provisions of Title VII of the Civil
Rights Act of 1964. It alleges that plaintiff was subjected to a hostile work
environment on the basis of his national origin or that he was subjected to
retaliatory harassment (Second Amended Complaint, paragraphs 1 and 2).
Rios-Campbell seeks compensatory damages arising from the national origin
discrimination to which he was allegedly subjected. Although not included as
defendants in the caption of the Second Amended Complaint, the thrust of
plaintiff’s allegations are aimed at his first-level supervisor, defendant Harold
Radonski and his second-level supervisor, co-defendant Tracy Dunn, at the
Southeast Enforcement Division of the Office of Legal Enforcement of the
National Marine Fisheries (NMFS) in Puerto Rico. Both Radonski and Dunn
are identified at paragraphs 14 and 15 of the Second Amended Complaint
being as defendants of “American national origin.”
The list of general allegations at paragraph 18(a) through (u)1 is devoid
of any factual contents. The following are examples of allegations which do not
point to actions by any specific defendant that could even be taken as
intimating misconduct on their part based on a discriminatory animus:
CIVIL 15-1189CCC
A.
3
Made persistent attempts to belittle and undermine plaintiff’s work
and his involvement in investigation in the Caribbean.
B.
Unnecessarily criticized and scrutinized plaintiff.
E.
Ignored plaintiff’s emails and phone calls, and refused to support
his investigative work.
F.
Made accusations again plaintiff without fundamental or facts to
support the claims.
I.
Refused to provide plaintiff with a new, working vehicle, even
though there was a Truck sitting at a parking lot in San Juan with
fewer miles than the 2003 miles Chevy Tahoe driven by him.
J.
Refused to provide plaintiff the same office environment as other
employees.
K.
Treated plaintiff in a rude manner, which has affected his physical
and mental health by creating a work atmosphere of stress and
anxiety.
M.
Exposed plaintiff to a hostile work environment, through
Radonsky’s actions, who alienated plaintiff and constantly
undervalued his work.
O.
Constantly undermined plaintiff’s professional integrity, repeatedly
and unjustifiably questioning several aspects of his work, as if
trying to catch him in a lie.
P.
Accused
plaintiff,
via
Harold
Radonsky,
of
improper
decision-making without factual evidence to support those claims.
Q.
Denied opportunities for stimulating and interesting work, contrary
to those given to Agent Henline, who was provided opportunities
to work with agents from Miami.
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U.
4
Repeatedly favored Agent Henline over plaintiff, via Radonski’s
and Dunn’s actions.
Paragraph 19 purportedly provides specific instances of discrimination
and harassment which one would expect would fill the factual vacuum of the
preceding paragraph 18(A) through (U) allegations. The specific instances of
discrimination and harassment announced in paragraph 19 are described at
paragraphs 20 through 111, pages 6 though 26.
Having reviewed these, the Court finds that plaintiff Ríos Campbell
contrived a log of gripes and disjointed events, spanning six (6) years, mostly
based on emails exchanged at the workplace.
At best, they point to
disagreements, brushes or tensions in Ríos Campbell’s relationship with
supervisors Radonski and Dunn and with non-party agent Kenneth Henline at
the Office of Legal Enforcement (OLE) of the National Marine Fisheries (NMF)
in Puerto Rico. These are scattered and fragmented allegations of actions or
inactions imputed to plaintiff’s two supervisors. Despite their numerosity, none
furnish a factual basis that would allow the Court to draw a reasonable
inference that defendants discriminated against plaintiff because of his national
origin: Puerto Rican.
The following are samples of such instances of alleged discrimination
and harassment due to national origin set forth in allegations 19 thru 111 of his
Second Amended Complaint (d.e. 15-1):
-
Ongoing discrepancies from 2007 to 2011 on whether the
Aguadilla Field Office or Guaynabo was an Official Duty Station.
See allegations 20-22; 53.
-
On July 23, 2009, plaintiff Rios emailed Radonski to advise that
Hennline had “verbally expressed that he did not like Rios . . .
Radonski ignored the email.” See allegation 23.
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5
-
On August 12, 2009, Rios sent a purchase request for a
government cellphone for approval to Radonski, who ignored it.
On August 18, 2009, Rios contacted Radonski on the phone
requesting verbal approval to purchase the cellphone at an AT&T
store. On January 22, 2010, Radonski emailed plaintiff stating that
he assumed plaintiff received the approved purchase request for
a new phone but Radonski never produced evidence that the
approved purchase request was sent. Plaintiff purchased the
cellphone through eBay on August 2009 “from his personal funds”
and not government funds as he never received an approved
purchase request even though he had sent it to Radonski.
See allegation 25.
-
On September 25, 2009, plaintiff received a message from
Radonski approving the operational plan for Queen Conch for
Agent Henline and Rios did not get a written approval for his Group
I investigation. On November 24, 2009, plaintiff sent Radonski an
email requesting a signed operational plan for Group I investigation
to which Radonski replied “there was no need as it was approved
all the way from HQ,” even though the document had a line for
signature approval. See allegations 26, 30.
-
On October 16, 2009, Radonski sent an email to Henline and
mistakenly sent it to Rios. Radonski’s message demonstrated that
Radonski and Henline were working behind Rios’ back since there
was “talk about Henline heading a project which never included
Rios although Henline was working in Rios’ AOR (Area Of
Responsibility.” See allegation 28.
-
On January 20, 2010, Radonski sent an email to Rios with regard
to property inventory, requesting that Rios load up all the office
equipment and drive to San Juan for Deputy Special Agent in
Charge Dunn to conduct an inventory . . . An email from Rios to
Radonski the day after asking if his email meant that Rios had to
take all of the office inventory to San Juan in his GOV was ignored
by Radonski. See allegation 33.
-
On March 22, 2010, Rios requested from Radonski the status of
inquiries with regard to threats made over the internet against him.
No response was received. See allegation 48.
-
“On April 27, 2010, Radonski denied Rios a change of schedule
previously approved. Plaintiff had requested a change of day off
within the changed scheduled due to the fact that Rios’ wife
needed to be driven to her psychiatrist . . . . Plaintiff’s email was
sent to Radonski on April 27, 2010, for change of day off with the
request. Rios did not anticipate any problem. Radonski ordered
Rios to submit an SF-71 form for the day taken off without
approval. Rios routinely changed his schedule to work weekends
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6
to satisfy the needs and mission of the NMFS, and is one of the
few agents in OLE SED who does this, yet he was penalized for
making a decision as a result of an exigent circumstance.”
Allegation 52.
-
“On August 19, 2010, Radonski sends email advising he will be
visiting Puerto Rico to conduct mid-term performance review; he
states he will not have much time in Puerto Rico, knowing that Rios
had requested an inspection of his office. Plaintiff perceived
Radonski did not want to drive to Aguadilla to inspect office and
witness the dire needs for improvements. Radonski just visits San
Juan.” Allegation 55.
-
“On October 12, 2010, Ríos sent an email to Radonski advising
that he would need to relocate to an alternate site due to his
unhealthy working condition. Rios requested for approval to
telework from alternate site. Radonski replied stating that he and
DSAC Dunn were very concerned, when Rios had previously
asked Radonski on several times to inspect the office as it needed
remodeling but he was ignored.” Allegation 59.
-
“On January 12, 2011, plaintiff received email from NOAA SED
Secretary Donna Evans with attached PDF of last year's telework
agreement reflecting episodic use of residence for telework
agreement. The previous day, plaintiff had requested an updated
telework agreement from Radonski and DSAC Dunn and NOAA
SED Secretary Donna Evans replied when the request that was
done to her personally was sent on December 16, 2010.”
Allegation 74.
-
“On May 13, 2011, plaintiff received an email from Radonski stating
that he was "[s]lammed with work” and could not “put together all
documents needed for AFF request." Radonski several times
throughout the course of the year stated that he did not have time
for plaintiff.” Allegation 94.
-
“On May 19, 2011, conducted Mid Term Performance review via
phone with plaintiff, even though he is supposed to conduct said
proceedings in a face-to-face meeting. Radonski started the
conversation with the following statement: "I do not want you to
think that I am trying to hammer you" Further into the conversation
with Radonski he accuses Rios and states "You need to stop
badmouthing Henline.” Plaintiff sent an email to Radonski
expressing dissatisfaction with the deficiencies and suggestions
provided by Radonski in Midterm performance document and
requested that Radonski provide clear written guidance as to what
was expected from plaintiff. Radonski ignored plaintiff’s request
and did not respond.” Allegation 96.
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The multiple instances listed in allegations 19 to 111 do not refer to any
factual circumstances that could plausibly establish or even intimate a nexus
or a causal relationship between the defendants’ conduct, as reflected in those
communications, and discrimination against plaintiff by reason of his national
origin.
While the Court has highlighted these particular allegations as
demonstrative of the insufficiency of plaintiff’s allegations regarding defendants’
discriminatory animus towards him, all of the allegations of the Second
Amended Complaint have been considered in passing upon the plausibility of
his discrimination claim. “The make-or-break standard . . . is that the combined
allegations, taken as true, must state a plausible, not a merely conceivable,
case for relief.” Sepulveda-Villarini v. Department of Education of Puerto Rico,
628 F.3d 25, 29 (1st Cir. 2010). Applying this standard, the Court finds that the
factual allegations in the complaint, taken as true, do not allow it to draw the
reasonable inference that defendants incurred in disparate and discriminatory
treatment towards plaintiff due to his national origin. The facts alleged in the
averments of the Second Amended Complaint, read as a whole, do not
establish a causal connection between actions or inactions imputed to
defendants and the national origin discrimination which plaintiff claims to have
suffered as a result of such conduct.
As in Iqbal, the allegations of the Second Amended Complaint do not
show that defendants’ conduct by acts or omissions, listed as instances of
discrimination, were due to plaintiff’s national origin.
Id., at p. 1952.
(“To prevail on that theory, the complaint must contain facts plausibly showing
that petitioners purposefully adopted a policy of classifying post-September-11
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8
detainees as ‘of high interest’ because of their race, religion, or national
origin.” . . . “the complaint does not show, or even intimate, that petitioners
purposefully housed detainees in the ADMAX SHU due to their race, religion,
or national origin.”) (Emphasis ours.)
The Court also notes that detrimental comments attributed to supervisors
Radonski and Dunn at allegation 112, regarding their distrust of plaintiff
because he was not an American, have not been linked in any manner as a
motivating factor to any of the events narrated in the preceding 92 allegations,
proffered as specific instances of discrimination and harassment against
plaintiff.
Finally, in allegation 122 of his third cause of action plaintiff claims that
he “was retaliated against because he both engaged in protected conduct as
he lodged several complaints to the Office of Special Counsel and the Office
of Inspector General against defendants Radonski and Dunn, and Agent
Henline for their involvement in an investigation on an alleged assault on Agent
Henline.” Title VII makes it unlawful for an employer to take materially adverse
action against an employee “because he has opposed any practice made an
unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a).
To state a cause of action under this portion of the statute, the pleading must
contain plausible allegations indicating that the plaintiff opposed a practice
prohibited by Title VII and that he suffered an adverse employment action as
a result of such opposition. But nowhere in his Second Amended Complaint
does plaintiff allege that the retaliation stemmed from his engaging in protected
activity. The investigation about which he complained, conducted by the
agency on an assault on Agent Henline, did not involve an unlawful
CIVIL 15-1189CCC
9
employment practice under the Title VII retaliation statute.
For these reasons, the Court dismissed plaintiff’s complaint for failure to
state a claim under Fed. R. Civ. P. 12(b)(6).
SO ORDERED.
At San Juan, Puerto Rico, on May 2, 2018.
S/CARMEN CONSUELO CEREZO
United States District Judge
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