Serrano-Colon v. Department of Homeland Security et al

Filing 146

OPINION and ORDER granting in part and denying in part 95 motion for summary judgment. Signed by Judge Silvia L. Carreno-Coll on 7/19/2021. (MCV)

Case 3:16-cv-01268-SCC Document 146 Filed 07/19/21 Page 1 of 32

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
ALMARIS SERRANO-COLÓN,
Plaintiff,

CIV. NO.: 16-1268 (SCC)

v.
DEPARTMENT OF HOMELAND
SECURITY ET AL.,
Defendants.
OPINION AND ORDER
Plaintiff Almaris Serrano-Colón filed this action pursuant
to the Court’s original jurisdiction against Defendants
Department

of

Homeland

Security

(“DHS”),

the

Transportation Security Authority (“TSA”)1 and Richard
Maldonado for alleged disability discrimination in violation
of the Rehabilitation Act, 29 U.S.C. § 701 et seq; disability,
gender and other forms of discrimination in violation of Title
VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq; violations
of the Administrative Procedures Act, 5 U.S.C. § 551 et seq
(“APA”) 2; violations of her rights under the Fifth Amendment
of the United States Constitution; and, invoking the Court’s
supplemental jurisdiction, negligence and negligent infliction
of emotional distress against Defendant Richard Maldonado
The TSA is in fact an administrative agency within the DHS and is
therefore not a separate party to this action.
2 Judicial review under the APA is provided for at 5 U.S.C. § 701 et seq.
1

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in violation of the Puerto Rico Civil Code, 31 L.P.R.A. § 5141.
See Docket No. 24.3 Pending before the Court is Defendants’
Motion for Summary Judgment. See Docket No. 95. Plaintiff
opposed. See Docket No. 109. Defendant then replied to
Plaintiff’s opposition, see Docket Number 136, and Plaintiff
surreplied, see Docket Number 143. For the reasons stated
herein, Defendants’ Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART.
I.

Background

On February 16, 2016, Plaintiff filed this action against Jeh
Charles Johnson, as Secretary of DHS; the TSA and Richard
Maldonado, bringing claims under the Rehabilitation Act, the
APA, the Fifth Amendment and the Puerto Rico Civil Code.
See Docket No. 1. Plaintiff later amended the Complaint,
adding a cause of action under Title VII. See Docket No. 24.
Plaintiff alleges that from 2008 to 2011, she was denied
accommodations

for

her

disability

(fibromyalgia),

encountered difficulty in obtaining leave under the Family
and Medical Leave Act (“FMLA”) and wrongly had certain
absences marked Absent Without Leave (“AWOL”). Plaintiff
further alleges that between 2013 and 2015, TSA management
denied her requests for reduced work schedule, placed her on
sick leave restriction requiring medical documentation,

Docket Number 24 is Plaintiff’s Amended Complaint; the original
complaint also named Jeh Charles Johnson as a defendant and did not
include the Title VII claim. See Docket No. 1.
3

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declined to provide her with advanced sick leave or leave
without pay and coded her AWOL, eventually terminating
her position. Plaintiff alleges that such behavior constituted
discrimination based on her disability, gender and parental
status and retaliation for her past Equal Employment
Opportunity (“EEO”) activity.
Defendants moved to dismiss the Amended Complaint
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
arguing that Plaintiff failed to state a claim upon which relief
could be granted. See Docket No. 26. However, the Court
stayed this matter pending the appearance of new legal
representation for Plaintiff after she filed to appear pro se. See
Docket Nos. 39 and 42. Consequently, the Court denied
without prejudice Defendants’ Motion to Dismiss and
administratively closed the case pending appearance of
Plaintiff’s counsel. See Docket No. 42. Counsel eventually
filed an appearance on Plaintiff’s behalf, and Defendants
answered the Amended Complaint. See Docket Nos. 43, 45.
On February 17, 2017, Plaintiff filed a petition under
Chapter 13 of the Bankruptcy Code, which was later
converted into a case under Chapter 7 of the Bankruptcy
Code. See Docket No. 76. As part of the bankruptcy case, the
current matter became property of Plaintiff’s bankruptcy
estate, to which Noreen Wiscovitch-Rentas was named
trustee. See id. As trustee, Ms. Wiscovitch-Rentas was named
a co-plaintiff to this action, given that she was a party with
interest due to her role in the bankruptcy matter. See id. The

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bankruptcy case was eventually settled, and Ms. WiscovitchRentas was consequently dismissed as a plaintiff to the
current action. See Docket Nos. 144, 145.
After discovery, Defendants filed a Motion for Summary
Judgment, arguing that Plaintiff cannot establish a prima facie
cause of action under Title VII, that Rehabilitation Act claims
are not cognizable given First Circuit case law, that her
remaining federal-law claims are preempted by the Civil
Service Reform Act, Pub. L. No. 94-454, 92 Stat. 1111 (1978)
(“CSRA”), and the individual claims against Defendant
Maldonado fail for an array of reasons. See Docket No. 95, 96
and 98. After numerous extensions of time and procedural
incidents, Plaintiff opposed. See Docket Nos. 109, 111.
II.

Undisputed Facts

In order to make its factual findings for the purposes of
this Opinion and Order, the Court considered Defendants’
Undisputed Statement of Material Facts (“DUSMF”) at
Docket Number 96; Plaintiff’s Response Statement of Material
Facts (“PRSMF”) at Docket Number 109, Exhibit 1; Plaintiff’s
Additional

Statement

of

Uncontested

Material

Facts

(“PASUMF”) at Docket Number 109, Exhibit 1; and
Defendants’ Answer to Plaintiff’s Undisputed Statement of
Material Facts (“DAPUSMF”) at Docket Number 136.

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1. Plaintiff began working for TSA as a part-time
Transportation

Security

Officer

(“TSO”)

at

Mercedita/Ponce International Airport (“PSE”) in
Puerto Rico on October 14, 2007. DUSMF ¶ 1; PRSMF
¶ 1.
2. As a TSO, Plaintiff was responsible for screening
passengers and their property at PSE to mitigate
threats of aviation security. DUSMF ¶ 2; PRSMF ¶ 2.
3. TSOs must, as part of their job description,
demonstrate the ability to repeatedly lift and carry
items weighing up to seventy pounds, maintain the
physical agility to ensure the ability to squat and bend
and maintain the ability to walk up to two miles during
a shift and to stand for prolonged periods of time.
DUSMF ¶ 4; PRSMF ¶ 3.
4. Generally, Plaintiff’s work schedule consisted of five
days of work with two consecutive days off, although
for some periods of time TSA permitted Plaintiff to
work for four days each week and take three days off.
DUSMF ¶ 8; PRSMF ¶ 8.
5. During her employment as TSO, Plaintiff was a single
mother with two children. DUSMF ¶ 10, n.2; PRSMF ¶
10.
6. Defendant Transportation Security Manager (“TSM”)
Richard Maldonado was aware of Plaintiff’s parental
status since 2008. PASUMF ¶ 4; DAPUSMF ¶ 4.

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7. Plaintiff claims she was diagnosed with fibromyalgia
in 2008. DUSMF ¶ 11; PRSMF ¶ 11.
8. Plaintiff’s supervisor granted numerous paid and
unpaid leave requests of Plaintiff from 2010 through
2015, permitting her to take time off to attend to
personal needs and to take vacation. DUSMF ¶ 12;
PRSMF ¶ 12.
9. Plaintiff was twice approved for TSA’s voluntary leave
transfer recipient program, through which she was
eligible for other TSA employees to donate leave to her.
Plaintiff received donated leave on one of the two
occasions. DUSMF ¶ 13; PRSMF ¶ 13.
10. From 2010 to Plaintiff’s removal in 2015, TSA took
issue with Plaintiff’s attendance record. DUSMF ¶ 16;
PRSMF ¶ 16.
11. TSOs were required to request scheduled absences at
least seven days in advance, and unscheduled
absences at least sixty minutes in advance. DUSMF ¶
17; PRSMF ¶ 17.
12. TSA attendance policies concerning absences without
leave (“AWOL”) required TSOs to obtain prior
approval for all absences from duty, including requests
for leave without pay (“LWOP”), except in the event of
emergencies. DUSMF ¶ 18; PRSMF ¶ 18.
13. Pursuant to TSA policy, an employee is placed on
AWOL status if she takes an unauthorized absence
without providing the required administratively

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acceptable documentation in support of such an
absence. AWOL is not a disciplinary action itself but
may serve as the basis for a disciplinary action.
DUSMF ¶ 18; PRSMF ¶ 19.
14. Beginning in 2014, TSA policy also stated that an
employee’s time may be charged as AWOL when an
employee fails to report for duty without approval, has
an unauthorized absence from the workplace during
the workday or does not give proper notification for an
absence. DUSMF ¶ 21; PRSMF ¶ 21.
15. Between January 10, 2010 and June 18, 2010, Plaintiff
requested ten unscheduled absences, four of which fell
immediately before or immediately after her days off.
For nine of those ten absences, Plaintiff requested for
leave under the Family and Medical Leave Act
(“FMLA”). DUSMF ¶ 23; PRSMF ¶ 23.
16. On July 12, 2010, Supervisory Transportation Security
Officer (“STSO”) Lyanne Díaz issued Plaintiff a Letter
of Counseling, which explained to Plaintiff that she
was required to arrive at her assigned shift when
scheduled. The Letter also cautioned Plaintiff that
further unexcused absences could result in her being
placed on leave restriction or in disciplinary action,
including removal. The Letter itself did not constitute
a disciplinary measure. DUSMF ¶¶ 24-26; PRSMF ¶¶
24-26.

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17. After three more unscheduled absences for which
Plaintiff did not notify at least sixty minutes prior to
her shift, STSO Díaz issued Plaintiff a non-disciplinary
Letter of Guidance on November 25, 2010. The Letter
cited Plaintiff for unacceptable performance for failing
to follow instructions to call in a minimum of sixty
minutes prior to her shift, and she must do so going
forward. DUSMF ¶ 27; PRSMF ¶ 27.
18. During the following pay period, Plaintiff called out of
work five more days. DUSMF ¶ 30; PRSMF ¶ 30.
19. Plaintiff

submitted

a

letter

to

Maldonado

on

November 11, 2010 in which she explained that she
was out of work on the five days in question due to her
alleged medical condition but did not include
supporting medical evidence or documentation from
her physician. DUSMF ¶ 32; PRSMF ¶ 32.
20. Her AWOLs from the prior period were not removed,
and she was informed that management did not find
the documentation sufficient for the absences. DUSMF
¶¶ 33-34; PRSMF ¶¶ 33-34.
21. Plaintiff cannot point to any comments made by
Defendants regarding her medical condition. DUSMF
¶ 35; PRSMF ¶ 35.
22. By December 13, 2010, Plaintiff had accumulated
eleven instances of unscheduled absences and one
tardy over the prior two months, including her five
AWOLs from the prior pay period. Three of these

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absences followed or preceded her regular days off.
DUSMF ¶ 38; PRSMF ¶ 38.
23. TSMs Layda Rodríguez and Myriam Rodríguez issued
Plaintiff a Letter of Leave Restriction, which warned
that further unapproved absences could be charged as
AWOL and could form the basis for administrative
action, including removal, a Letter of Reprimand was
issued in January 2011. DUSMF ¶¶ 39-45; PRSMF ¶¶
39-45.
24. In 2011, Plaintiff filed a formal complaint with the
Equal

Employment

Opportunity

Commission

(“EEOC”) alleging disability discrimination. Her
subsequent request to amend her complaint was
denied by the EEOC. DUSMF ¶¶ 203, 205; PRSMF ¶¶
203, 205.
25. In a letter dated May 20, 2012, a fellow TSO stated that
Plaintiff and a supervisor TSO, Juan Martínez, at PSE
were a couple, and that Plaintiff received special
treatment as a result, including that TSO Martínez
would alter Plaintiff’s record in the TSA’s timekeeping system if she arrived late to work. DUSMF ¶
51; PRSMF ¶ 51.
26. On or about December 9, 2012, Plaintiff entered into a
settlement agreement with TSA under which the
parties agreed to remove from Plaintiff’s record one
hour of AWOL for September 4, 2012 and five hours of
AWOL for September 5, 2012, and to instead approve

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those hours as FMLA/LWOP. DUSMF ¶ 208; PRSMF ¶
208.
27. In November 2013, Plaintiff was charged with
submitting inaccurate time and attendance reports,
chronic lateness and failure to follow instructions.
Management elected to remove Plaintiff, but after she
appealed to an internal TSA board, her removal was
reduced to a fifteen-day suspension. DUSMF ¶¶ 50, 55;
PRSMF ¶¶ 50, 55.
28. STSO Díaz issued Plaintiff letters of sick leave
restriction in May 2014, January 2015 and July 2015.
During this time, Plaintiff was enrolled as a full-time
law student. DUSMF ¶ 56; PRSMF ¶ 56.
29. From October 28, 2013 to May 10, 2014, Plaintiff
requested unscheduled absences on eleven occasions
and was late for work on seven occasions. DUSMF ¶¶
58-59; PRSMF ¶¶ 58-59.
30. From August 26, 2014 to January 20, 2015, Plaintiff had
ten unscheduled absences, seven of which Plaintiff
reported within sixty minutes before or even after her
shift began. DUSMF ¶ 74; PRSMF ¶ 74.
31. STSO Díaz issued Plaintiff a letter of sick leave
restriction on or about January 20, 2015 and required
Plaintiff to

submit

medical documentation for

unscheduled absences due to sudden illness. The letter
notified Plaintiff that any failure to properly request
leave or timely provide medical documentation upon

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her return could result in a charge of AWOL or
disciplinary action, including removal. DUSMF ¶¶ 7778; PRSMF ¶¶ 77-78.
32. The letter was delivered to Plaintiff by TSM
Maldonado, who also explained to her that she was on
sick leave restriction due to her absences from work.
DUSMF ¶ 80; PRSMF ¶ 80.
33. From January 21, 2015 to June 18, 2015, Plaintiff had
twenty-six unscheduled absences. DUSMF ¶ 85;
PRSMF ¶ 85.
34. STSO Díaz issued Plaintiff another letter of leave
restriction on or about July 23, 2015, which mirrored
the letter issued on January 20, 2015. DUSMF ¶¶ 87-90;
PRSMF ¶¶ 87-90.
35. Plaintiff was pregnant in 2015 and due in late
November 2015. Once Plaintiff’s pregnancy was
confirmed in March 2015, she informed STSO Díaz.
DUSMF ¶ 131; PRSMF ¶ 131.
36. Plaintiff alleges that the majority of the issues causing
her absences were attributable to her medical
condition and to being pregnant during this time.
DUSMF ¶ 91; PRSMF ¶ 91.
37. STSO Díaz charged Plaintiff with AWOL on certain
occasions in 2015 as a result of her absences and failure
to present proper medical documentation. DUSMF ¶
92; PRSMF ¶ 92.

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38. STSO

Díaz

Page 12

occasionally

consulted

with

TSM

Maldonado about Plaintiff’s attendance issues to seek
his guidance, as he was responsible for reviewing the
sick leave restriction letters. DUSMF ¶ 98; PRSMF ¶ 98.
39. While Plaintiff was pregnant, she was on light duty,
which typically consists of working at positions that
allow being seated and do not involve heavy lifting.
DUSMF ¶ 99; PRSMF ¶ 99.
40. Plaintiff is not aware of any other TSO who was on a
sick leave restriction between 2010 and 2015. DUSMG
¶ 102; PRSMF ¶ 102.
41. Plaintiff was told that another TSO, whom Plaintiff
uses as a comparator for this lawsuit, arrived late and
TSM Maldonado saw him arriving late but did not
code that TSO as AWOL, but Plaintiff does not know
of other instances in which that TSO arrived late to
work. DUSMF ¶ 110; PRSMF ¶ 110.
42. During her pregnancy, Plaintiff’s symptoms of nausea,
dizziness, fatigue, infections, weakness and pain
worsened. At one point she had to stay home for two
weeks without pay to avoid having a miscarriage.
PASUMF ¶ 40; DAPUSMF ¶ 40.
43. On or about April 17, 2015, Plaintiff requested twenty
hours of advanced sick leave, citing her worsening
symptoms. She stated that she went to the hospital and
was on bed rest orders by her gynecologist until May
1. DUSMF ¶ 124; PRSMF ¶ 124.

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44. Assistant Federal Security Director (“AFSD”) for
Screening José Rivera denied Plaintiff’s request for
advanced sick leave on or about April 23, 2015.
DUSMF ¶ 126; PRSMF ¶ 126.
45. Plaintiff admits she cannot identify other comparators
who were granted advanced sick leave by AFSD
Rivera. DUSMF ¶ 129; PRSMF ¶ 129.
46. Plaintiff also requested a reduced work schedule in
August 2013, February 2014 and June 2015, among
other occasions, citing assistance with childcare,
graduate studies and health care as reasons for the
reduction request. DUSMF ¶ 159 PRSMF ¶ 159.
47. The August 2013 and June 2015 requests were denied
by AFSD Rivera and AFSD for Mission Support Merfil
Cuesta, respectively. DUSMF ¶¶ 164, 169; PRSMF ¶¶
164; 169.
48. Plaintiff alleges that she was discriminated against
when her requests for a reduced work schedule were
denied based on; (1) transfers of other females out of
PSE; (2) awareness that she was a single parent; (3)
awareness of her 2011 EEO activity; and (4) awareness
of her medical condition. DUSMF ¶ 172; PRSMF ¶ 172.
49. Plaintiff maintained a continuously low leave balance
during her employment at TSA. DUSMF ¶ 112; PRSMF
¶ 112.

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50. On or about July 26, 2015, Plaintiff was issued a Notice
of Proposed Removal primarily based on her
attendance issues. The proposed removal charged
Plaintiff with (1) failure to follow agency leave
procedures by failing to request several unscheduled
absences at least sixty minutes prior to her shift; (2)
failure to follow instructions by not notifying her
supervisor of her need for unscheduled absences; (3)
arriving late for work; and (4) being AWOL due to her
failure to provide documentation to justify several
unscheduled absences. DUSMF ¶ 113; PRSMF ¶ 113.
51. In her reply to the Notice of Proposed Removal,
Plaintiff explained she was pregnant and had a
disability with symptoms that are exacerbated during
pregnancy. She also explained that she believed the
prior attendance-related actions were based on her
pregnancy

and/or

disability

and

constituted

discrimination. She also claimed that her disability and
pregnancy were mitigating factors for what she
claimed were unavoidable absences and lateness.
DUSMF ¶ 114; PRSMF ¶ 114.
52. On or about August 24, 2015, AFSD Rivera decided to
remove Plaintiff from federal service. DUSMF ¶ 115;
PRSMF ¶ 115.

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53. TSA policy states that for second and/or successive
offenses, the penalty should generally fall within the
aggravated penalty range and may often include
removal. DUSMF ¶ 120; PRSMF ¶ 120.
54. Plaintiff appealed her removal to an internal TSA
board, which affirmed her removal. DUSMF ¶ 122;
PRSMF ¶ 122.
55. Plaintiff claims her removal constituted discrimination
on the basis of gender, pregnancy, parental status,
prior EEO activity and medical condition. She bases
this claim in part on AFSD Rivera denying all of her
accommodation requests and her request for advanced
sick leave due to her low leave balance and on her
contention that when she was absent, she provided the
required administratively acceptable documentation.
Plaintiff admits that she does not know of any
comments made against her to substantiate her claim.
DUSMF ¶ 123; PRSMF ¶ 123.
56. Plaintiff filed a complaint with the EEO again in 2015,
alleging she was subject to harassment and disparate
treatment based on her sex, disability, parental status
or prior 2011 EEO activity for various denials of
requests for a reduced work schedule, other types of
leave and for her removal. DUSMF ¶ 212; PRSMF ¶
212.

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57. As part of the EEO investigation, Plaintiff submitted
signed and sworn affidavits to the EEO investigator in
which she was asked why she believed she was
discriminated against as to each of her allegations. In
response, Plaintiff failed to mention any comments.
DUSMF ¶ 215; PRSMF ¶ 215.
58. During her deposition under which she reviewed her
statements made during the EEO investigation,
Plaintiff stated that another TSO told her about
comments “they” made, stating “There she comes.
Now she’s pregnant.” DUSMF ¶ 219; PRSMF ¶ 219.
III.

Standard of Review

A Court’s discretion to grant summary judgment is
governed by Rule 56 of the Federal Rules of Civil Procedure.
That Rule states, in pertinent part, that summary judgment is
appropriate if “the movant shows that 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); see also
Zambrana-Marrero v. Suárez-Cruz, 172 F.3d 122, 125 (1st Cir.
1999) (stating that summary judgment is appropriate when,
after evaluating the record in the light most favorable to the
non-moving party, the evidence “fails to yield a trial worthy
issue as to some material fact”). Thus, the party moving for
summary judgment bears the burden of showing the absence
of a genuine issue of material fact. See Celotex v. Catrett, 477
U.S. 317, 323 (1986). Once the movant meets this burden, the

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burden then shifts to the opposing party who may not rest
upon mere allegations or denials of the pleadings, but must
affirmatively show, through the filing of supporting affidavits
or otherwise, that there is a genuine issue of material fact for
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Celotex, 477 U.S. at 324.
According to Rule 56, in order for a factual controversy to
prevent summary judgment, the contested facts must be
“material” and the dispute must be “genuine.” This means
that, as the Supreme Court has stated, “only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Anderson, 477 U.S. at 248 (1986). Thus, a
fact is material if, based on the substantive law at issue, it
might affect the outcome of the case. See Mack v. Great Atl. and
Pac. Tea Co., Inc., 871 F.2d 179, 181 (1st Cir. 1989).
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, 905
F.2d 112, 115 (1st Cir. 1990). The Court may safely ignore,
however, “conclusory allegations, improbable inferences, and
unsupported speculation.” Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

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Page 18

Analysis

A. Title VII Claims
Plaintiff alleges that Defendants discriminated against her
on the basis of disability, sex, pregnancy, parental status and
engagement in prior EEO activity. However, while Title VII
makes it “an unlawful employment practice for an employer
to . . . discriminate against any individual with respect to his
compensation,

terms,

conditions,

or

privileges

of

employment, because of such individual’s race, color,
religion, sex or national origin,” 42 U.S.C. § 2000e-2(a)(1), it
does not provide a cause of action for claims of disability
discrimination. See Arroyo-Ruiz v. Triple-S Mgmt. Grp., 206
F.Supp.3d 701, 718-19 (D.P.R. 2016). We therefore limit our
analysis to Plaintiff’s claims of sex discrimination. Plaintiff’s
claims of discrimination based on her pregnancy and parental
status fall under the umbrella of sex discrimination: Title VII’s
prohibition against discrimination “because of sex” includes
“because of or on the basis of pregnancy, childbirth, or related
medical conditions . . . .” 42 U.S.C. 200e(k), and, regarding
parental status, the Supreme Court and many Circuit courts,
including the First Circuit, have held that “the assumption
that a woman will perform her job less well due to her
presumed family obligations is a form of sex-stereotyping and
that adverse job actions on that basis constitute sex
discrimination.” Chadwick v. WellPoint, Inc., 561 F.3d 38, 44
(1st Cir. 2009) (citing Nevada Dep’t of Human Res. V. Hibbs, 538

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U.S. 721, 730 (2003)); Back v. Hastings on Hudson Union Free
School Dist., 365 F.3d 107, 120 (2d Cir. 2004); Lust v. Sealy, Inc.,
383 F.3d 580, 583 (7th Cir. 2004); Santiago-Ramos v. Centennial
P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000); Sheehan v.
Donlen Corp., 173 F.3d 1039, 1045 (7th Cir. 1999).
In the absence of direct evidence of discrimination, as is
the case here, the First Circuit employs the McDonnell Douglas
burden-shifting framework to evaluate whether a plaintiff
can make out an inferential case of the alleged discrimination.
See Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77 88 (1st
Cir. 2018) (citing McDonnell Douglas Corp. v. Green, 411 US. 792
(1973)); Lockridge v. Univ. of Maine Sys., 597 F.3d 464, 470 (1st
Cir. 2010). Under this analysis, a plaintiff alleging sex
discrimination must first establish a prima facie case by
showing that: “(1) she belonged to a protected class; (2) she
performed her job satisfactorily; (3) her employer took an
adverse employment decision against her, and (4) her
employer continued to have her duties performed by a
comparably qualified person.” Santiago-Ramos, 217 F.2d at 54.
Such a showing is “not onerous and is easily made.” Kosereis
v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003).
Moving on to step two, if such a showing can be made,
then there is an inference of discrimination and “the burden
of production shifts to the defendant to produce evidence
‘that the adverse employment actions were taken for a
legitimate, nondiscriminatory reason.’” Cham v. Station
Operators, Inc. 685 F.3d 87, 94 (1st Cir. 2012) (quoting St.

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Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)). If the
employer can demonstrate such a reason, the analysis then
progresses to step three: “[i]f the defendant carries this
burden of production, [then] the plaintiff must prove, by a
preponderance, that the defendant’s explanation is a pretext
for unlawful discrimination.” Mariani-Colón v. Dep’t of
Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 221 (1st Cir. 2007).
Thus, at the summary judgment phase, our task is to decide
whether, “viewing the aggregate package of proof offered by
[Plaintiff] and taking all inferences in [her] favor, [Defendants
have] raised a genuine issue of fact as to whether the
termination

was

motivated

by

[sex]

discrimination.”

Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 431 (1st Cir.
2000) (citations and quotations omitted).
Turning to the facts at hand, we must first decide whether
Plaintiff

has

established

a

prima

facie

case

of

sex

discrimination. She clearly meets three of the elements: she is
a woman; she was removed from her employment; and
comparable persons continued to perform her work
responsibilities.

Whether

Plaintiff

performed

her

job

satisfactorily is unclear, as the parties take extremely different
positions and present conflicting evidence as to that element.
However, we need not reach this issue because of our finding
under the third inquiry. See Santiago-Ramos, 217 F.3d at 54.
Defendants proffer a legitimate, nondiscriminatory reason
for the adverse employment action: that she had chronic
attendance issues and repeatedly failed to follow TSA

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attendance policy. We must then pivot to step three, whether
such nondiscriminatory reason is merely a pretext for illegal
discrimination. Under this prong, a plaintiff “does not have
to prove by a preponderance of the additional evidence that
discrimination was in fact the motive for the action taken. All
a plaintiff has to do is raise a genuine issue of fact as to
whether discrimination motivated the adverse employment
action.” Domínguez-Cruz, 202 F.3d at 433 (quoting Olivera v.
Nestle Puerto Rico, Inc., 922 F.2d 43, 50 (1st Cir. 1990)).
Plaintiff has presented evidence that she consistently
provided administratively-sufficient documentation for her
absences of three days or more, pursuant to TSA policy, and
has sworn under oath that she heard negative comments
made about her pregnancy while at work. Despite the amount
of competing evidence presented by both parties as to
Plaintiff’s attendance record, we find that, viewing “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, 905 F.2d at 115, the evidence
provided by Plaintiff is sufficient to raise a genuine issue of
fact as to whether her attendance record was a pretext used
by Defendants as the basis for her termination. As such,
Plaintiff should be able to take her claim of sex discrimination
in violation of Title VII to a jury. Our ruling is reinforced by
the First Circuit’s warning that, “where a plaintiff in a
discrimination case makes out a prima facie case and the issue
becomes whether the employer’s stated nondiscriminatory

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reason is a pretext for discrimination, court must be
‘particularly cautious’ about granting the employer’s motion
for summary judgment.” Hodgens v. Gen. Dynamics Corp., 144
F.3d 151, 167 (1st Cir. 1998) (citing Stepanischen v. Merchants
Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir. 1983)); see
also Mulero-Rodríguez v. Ponte, Inc. 98 F.3d 670, 677 (1st Cir.
1996) (reversing summary judgment and noting that
“determinations of motive and intent, particularly in
discrimination cases, are questions better suited for the jury”
(internal quotations and citations omitted)). We find this to be
especially true where, as here, the employee is prosecuting
her case pro se.
B. Rehabilitation Act Claims
Defendants argue that Plaintiff’s claims under the
Rehabilitation Act must be dismissed because the Aviation
and Transportation Security Act (“ATSA”), Pub. L. No. 10771, 115 Stat. 596 (2001) (codified in scattered sections of 49
U.S.C.), under which Congress created the TSA, precludes a
TSA security screener such as Plaintiff from bringing suit
under that statute. In support of that contention, Defendants
cite Field v. Napolitano, 663 F.3d 505, 510-14 (1st Cir. 2011),
which held that the “unequivocally plain language” of the
ATSA that TSA security screeners have no cause of action
under the Rehabilitation Act. In Field, the First Circuit
explained that the TSA Administrator had, pursuant to his
statutory authority, “declined to extend the Rehabilitation

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Act standards to security screeners because, inter alia, the
Rehabilitation Act standards are not consistent with the
physical qualifications that the TSA Administrator has
established for the screener position.” Id. at 511.
However, as Plaintiff points out, Congress amended the
CSRA after Field to specifically apply protections against
discrimination to TSA employees, including discrimination to
individuals who are discriminated against “on the basis of
handicapping condition, as prohibited under section 501 of
the Rehabilitation Act of 1973 (29 U.S.C. 791).” 5 U.S.C. §
2302(b)(1)(D). Yet Plaintiff never pursued the route for
administrative relief outlined by the CSRA, including seeking
review of her removal by the Merit System Protection Board
(“MSPB”) and appealing to the Federal Circuit, see Elgin v.
U.S. Dep’t of Treasury, 641 F.3d 6, 10 (1st Cir. 2011), and she
may not now invoke its protections at the summary judgment
phase. Therefore, Plaintiff’s claims under the Rehabilitation
Act are dismissed with prejudice. 4
C. APA Claims
Next, Defendants argue that Plaintiff’s claims under the
APA are precluded by the CSRA, given that that statute does
not afford her a right to judicial review. Plaintiff argues, inter
alia, that this Court has jurisdiction over her APA claims

Defendants also argue that Plaintiff’s Rehabilitation Act claims are
barred by the 2012 settlement agreement and by the fact that she allegedly
failed to timely contact an EEOC counselor. See Docket No. 98, pgs. 53-55.
However, because we dismiss those claims on other grounds, we need not
address Defendants’ additional arguments.
4

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generally pursuant to 28 U.S.C. § 1331, as those claims “arise
under” federal law, and that the CSRA does not deprive this
Court of jurisdiction over those claims.
The CSRA creates an “integrated scheme of administrative
and judicial review” for aggrieved federal employees and was
designed to replace an “outdated patchwork of statutes and
rules” that afforded employees the right to challenge
employing agency actions in district courts across the nation,
which produced “wide variations in the kinds of decisions . .
. issued on the same or similar matters” and a double layer of
judicial review in the Federal Courts of Appeals that was
“wasteful and irrational.” U.S. v. Fausto, 484 U.S. 439, 444-45
(1988) (internal quotations omitted). The First Circuit has
interpreted Fausto to stand for the general proposition that
judicial review is unavailable to a federal employee who has
suffered an adverse personnel action if CSRA does not
provide judicial review. Pathak v. Dep’t of Veterans Affairs, 274
F.3d 28, 31 (1st Cir. 2001). The First Circuit explicitly
explained that Fausto dictates that a federal employee seeking
review of an adverse employment action that is not afforded
judicial or administrative review under the CSRA cannot go
around the statute and assert federal jurisdiction by relying
on the APA. Id. at 32.
Moreover, the Federal Circuit has ruled that Section 111(d)
of the ATSA exempts TSA from laws that otherwise would
apply to screener positions, and as such TSOs are not afforded
judicial or administrative review under the CSRA. Conyers v.

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Merit Sys. Protection Bd., 388 F.3d 1380, 1383 (Fed. Cir. 2004).
The Federal Circuit, in a matter on appeal from the MSPB,
explained that the “[n]otwithstanding any other provision of
law” clauses in the ATSA that provides the Administrator of
TSA wide latitude in hiring, firing and disciplining TSA
screeners meant that Congress intended this screener-specific
provision to override more general conflicting statutory
provisions to the extent that they would apply to screeners.
Id. at 1382-83 (citing 49 U.S.C. § 44935 5).
Thus, synthesizing the rulings of Pathak and Conyers,
judicial review in the district courts, including this Court, is
not available to TSOs. Even if TSOs like Plaintiff were
afforded review under the CSRA, the exclusive avenue for
relief would be through the MSPB and the Federal Circuit, not
in the district courts. See Elgin, 567 U.S. at 11 (“Just as the
CSRA’s elaborate framework demonstrates Congress’ intent
to entirely foreclose judicial review to employees to whom the
CSRA denies statutory review, it similarly indicates that extrastatutory review is not available to those employees to whom
the CSRA grants administrative and judicial review.” (internal
citations omitted) (emphasis in original)). Thus, an action in
this Court is not the appropriate vehicle through which

The ATSA has since been amended, but the clauses cited by the Federal
Circuit in Conyers have been moved from a note to § 44935 to actual
sections of the statute itself, which, in our view, further cements the
Federal Circuit’s conclusion that Congress meant for the screener-specific
provisions of the ATSA to override all other provisions of law as they
apply to screeners.

5

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Plaintiff may bring her APA claims, and those claims are
dismissed with prejudice.
D. Constitutional Claims
Defendants argue that Plaintiff’s constitutional claims are
also precluded by the CSRA. The First Circuit in Pathak was
presented with the opportunity to address this argument, but
declined the invitation given its conclusion that the plaintiff’s
constitutional claims were “not even colorable,” 274 F.3d at
33; it suggested, however, “despite CSRA’s expansive reach,
we

might

have

jurisdiction

to

review

a

plaintiff’s

constitutional claims.” Elgin, 641 F.3d at 18, n.12. That issue
was more concretely addressed on appeal when the Supreme
Court, affirming the First Circuit’s conclusion that the CSRA
was the exclusive remedy for federal employees to challenge
the constitutionality of their removal, held that “the CSRA
precludes district court jurisdiction over petitioners’ claims
even though they are constitutional claims for equitable
relief.” Elgin, 567 U.S. at 8. It is notable, however, that the
plaintiffs in Elgin belonged to the competitive service
category whose constitutional claims could be “meaningfully
addressed” in the Federal Circuit pursuant to the CSRA.
Elgin, 567 U.S. at 17.

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We need not dive into these muddy waters because, like
the First Circuit in Pathak, we find that Plaintiff’s
constitutional claims are not colorable.
Plaintiff alleges that Defendants violated her Fifth
Amendment right to due process 6 by coding her absences as
AWOLs and denying her FMLA leave, thus creating an
unfavorable personnel file, and depriving her of a property
interest – her right to maintain her employment. We find that
the actions creating an unfavorable personnel file are not
cognizable under the Fifth Amendment’s Due Process Clause,
but the termination of her employment does fall within its
ambit.
In order to establish a procedural due process violation, a
plaintiff “must allege first that it has a property interest as
defined by [federal] law and, second, that the defendants,
acting under color of [federal] law, deprived it of that
property interest without constitutionally adequate process.”
Marrero-Gutierrez v. Molina, 491 F.3d 1, 8 (1st Cir. 2007); see also
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950) (explaining that an essential principle of due process is
that a deprivation of life, liberty or property “be preceded by

That Clause states, in relevant part, states “No person shall . . . be
deprived of life, liberty, or property, without due process of law . . . .” U.S.
Const. amend. V.

6

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notice and opportunity for hearing appropriate to the nature
of the case”). 7
To establish a constitutionally-protected interest in public
employment, a plaintiff must demonstrate that she has a
legally-recognized expectation that she will retain her
position. Santana v. Calderon, 342 F.3d 18, 24 (1st Cir. 2003). “In
a due process claim stemming from the termination of
employment, ‘a public employee must first demonstrate that
he has a reasonable expectation, arising out of a statute,
policy, rule, or contract, that he will continue to be
employed.’” Acevedo-Feliciano v. Ruiz-Hernández, 447 F.3d 115,
221 (1st Cir. 2006) (quoting Wojcik v. Mass. State Lottery
Comm’n, 300 F.3d 92, 101 (1st Cir. 2002)).
Here, Plaintiff’s employment with the TSA was pursuant
to a contract, and we therefore find that she had a reasonable
expectation in continued employment. Our inquiry is
therefore limited to whether she was afforded adequate
process in relation to her termination. We find that she was.
In the context of termination, due process generally requires
“some kind of hearing” and an opportunity to respond to the
allegations made against the employee. Torres-Rosado v.
While the analysis in these cases was conducted in relation to the Due
Process Clause of the Fourteenth Amendment and not the Due Process
Clause of the Fifth Amendment, the two may be viewed interchangeably
for purposes of due process analysis. See Paul v. Davis, 424 U.S. 693, 702
n.3 (1976) (explaining that “the Fourteenth Amendment imposes no more
stringent requirements upon state officials than does the Fifth upon their
federal counterparts” and therefore relying on Supreme Court
interpretation of either Clause for purposes of its examination of plaintiff’s
Fourteenth Amendment due process claim).
7

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Rotger-Sabat, 335 F.3d 1, 10 (1st Cir. 2003) (quoting Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)). Due process
requires that the pre-termination hearing fulfill the purpose
of “an initial check against mistaken decisions – essentially, a
determination of whether there are reasonable grounds to
believe that the charges against the employee are true and
support the proposed action.” Cepero-Rivera v. Fagundo, 41
F.3d 124, 135 (1st Cir. 2005) (citing Loudermill, 470 U.S. at 54546); see also Gorman v. Univ. of Rhode Island, 837 F.2d 7, 12 (1st
Cir. 1988) (explaining that a pre-termination hearing is
considered “fair” if the individual to be discharged has the
“opportunity to respond, explain and defend”).
Upon her Notice of Proposed Removal, Plaintiff was
afforded the opportunity to address the charges against her
of chronic absence and tardiness, provide a justification and
air her grievances regarding what she perceived as
discrimination, and even appeal the decision to an internal
TSA board once the final removal was issued. Moreover, over
the course of her employment as TSO, management issued
her a plethora of letters addressing her absences and tardiness
and warning her that continued behavior could result in her
termination. We therefore find that the standard for
constitutionally-adequate due process was easily met in this
case, and Plaintiff’s claims under the Due Process Clause of
the Fifth Amendment are dismissed with prejudice.
Plaintiff also alleges in the Amended Complaint that
“[t[he Fifth Amendment of the United States Constitution

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guarantees [Plaintiff] equal treatment in her employment,”
and that Defendants treated her unequally in comparison to
other TSA employees. Docket No. 24, §§ 142-43. However, the
Fifth Amendment, unlike the Fourteenth Amendment
applicable to the individual States, contains no equal
protection guarantees. Therefore, Plaintiff’s purported Fifth
Amendment “equal protection” claims are dismissed with
prejudice.
E. Individual Claims Against Defendant Maldonado
Plaintiff makes claims against Defendant Maldonado in
his individual capacity under Title VII, the Fifth Amendment
and Puerto Rico state law. Regarding the constitutional
claims, which constitute a Bivens claim, 8 Defendants claim
that Maldonado is protected by qualified immunity. To
determine whether a government official is shielded from
Bivens liability, a court must determine: (1) “whether the
plaintiff

has

alleged

the

deprivation

of

an

actual

constitutional right”; and, if so, (2) “proceed to determine
whether that right was clearly established at the time of the
alleged violation.” Abreu-Guzmán v. Ford, 241 F.3d 69, 73 (1st
Cir. 2001) (quoting Wilson v. Layne, 526 U.S. 603, 609 (1999)).

Bivens establishes, “as a general proposition, that victims of
constitutional violation perpetrated by a federal actor may sue the
offender for damages in federal court despite the absence of explicit
statutory authorization for such suits.” Soto-Torres v. Fraticelli¸654 F.3d
153, 157-58 (1st Cir. 2011) (quotations omitted) (citing Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)). This
implied cause of action is the federal analog to a 42 U.S.C. § 1983 suit
against state actors. Id. at 158.
8

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We have already determined that Plaintiff has failed to
establish the violation of a constitutional right; subsequently,
her constitutional claims against Maldonado in his individual
capacity fail and are dismissed with prejudice.
As to Plaintiff’s Title VII claims against Maldonado, we
have already stated that disability discrimination is not a basis
for Title VII liability and, therefore, Plaintiff’s claims that
Maldonado discriminated against her by denying her the
appropriate leave for her medical condition and failing to
provide her with reasonable accommodation are not
cognizable under Title VII. Moreover, because Maldonado
was not involved in the decision to terminate Plaintiff, her
claim of gender discrimination based on her pregnancy
resulting in her removal is not colorable as it relates to
Maldonado. Therefore, Plaintiff’s claims against Maldonado
in his individual capacity for constitutional and Title VII
violations are dismissed with prejudice. 9
All that remains of Plaintiff’s claims against Maldonado
are those arising under Puerto Rico state law. Plaintiff alleges
that Maldonado’s negligence caused her emotional distress in
violation of 31 L.P.R.A. § 5141. The Court has supplemental
jurisdiction to hear state-law claims when, and if, the federal
court has original jurisdiction in the action and the claims

Defendants also argue that Plaintiff’s claims against Maldonado are timebarred and precluded by the 2012 settlement agreement. See Docket No.
98, pgs. 63-64. However, because we find that these claims fail on other
grounds, we do not reach the merits of these arguments.
9

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“form part of the same case or controversy.” 28 U.S.C. §
1367(a). However, the Court may decline to exercise
supplemental jurisdiction if it “has dismissed all claims over
which it has original jurisdiction.” Id. at § 1367(c)(3); see also
Redondo Const. Corp. v. Izquierdo, 662 F.3d 42, 49 (1st Cir. 2011).
Having dismissed all claims against Maldonado over which
the Court has original jurisdiction, we, in our discretion,
decline to extend our jurisdiction over the remaining statelaw claims against that Defendant. Thus, Plaintiff’s state-law
claims are dismissed without prejudice.
V.

Conclusion

Defendants’ Motion for Summary Judgment at Docket
Number 95 is GRANTED IN PART and DENIED IN PART.
Specifically,

Plaintiff’s

Title

VII

claim

of

gender

discrimination as to Defendant DHS relating to her removal
survives, while all other federal-law claims are dismissed
with prejudice. Her state-law claims against Defendant
Richard Maldonado are dismissed without prejudice. Before
her remaining Title VII claim reaches trial, we strongly
encourage Plaintiff to retain counsel and we remind her that
the Court may, in its discretion, award her attorney’s fees if
she prevails. See 42 U.S.C. § 2000e-5(k).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 19th day of July 2021.
S/ SILVIA CARREÑO-COLL
UNITED STATES DISTRICT COURT JUDGE