Marquez-Marin v. Lynch
Filing
155
ORDER ON MOTION FOR SUMMARY JUDGMENT denying 92 motion for summary judgment Signed by Judge John Woodcock, Jr on 05/26/2020. (cs)
Case 3:16-cv-01706-JAW-JCN Document 155 Filed 05/26/20 Page 1 of 224
UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
CARMEN MÁRQUEZ-MARÍN,
Plaintiff,
v.
WILLIAM P. BARR, Attorney
General of the United States,
Defendant.
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3:16-cv-01706-JAW-JCN
ORDER ON MOTION FOR SUMMARY JUDGMENT
This unusual case involves multiple employment-based claims by an Assistant
United States Attorney (AUSA) against a United States Attorney’s Office (USAO).
Presented with an extraordinarily complex, dense, and contentious factual record,
but remarkably straightforward legal issues, the Court concludes that the AUSA
raises genuine issues of fact that must be resolved by a jury and prevent summary
judgment for the defendant.
I.
BACKGROUND
A.
Procedural History
On April 13, 2016, Carmen Márquez-Marín, a former AUSA, filed a complaint
in this Court against Loretta Lynch, then Attorney General of the United States,
alleging that the U.S. Department of Justice (DOJ) retaliated against her for her prior
Equal Employment Opportunity (EEO) Act activity and created a hostile work
environment for her for the same reasons, violated the 1973 Rehabilitation Act by
failing to provide her with reasonable accommodations for her disability, and
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discriminated against her due to her disability. 1 Compl. (ECF No. 1). Attorney
General Lynch, now William P. Barr, 2 answered the Complaint on June 30, 2016,
Def.’s Answer to Pl.’s Compl. (ECF No. 5), and filed an amended answer on August
12, 2016. Def.’s First Am. Answer to Pl.’s Compl. (ECF No. 13).
The case began in the ordinary course with the Court issuing a scheduling
order on July 27, 2016, and for various reasons, the parties required periodic
extensions of the deadlines. Scheduling Order (ECF No. 11); Pl.’s Unopposed Mot.
for Extension of All Deadlines (ECF No. 16); Order Granting Mot. for Extension of
Deadlines (ECF No. 17); Joint Mot. for Extension of Deadlines (ECF No. 18); Order
Granting Mot. for Extension of Deadlines (ECF No. 20); Joint Mot. Requesting
Extension of Deadlines (ECF No. 26); Order Granting Mot. for Extension of Time (ECF
No. 27); Def.’s Unopposed Mot. for Extension of Time to Respond to Pl.’s Mot. for in
Camera Review and to Compel (ECF No. 34); Order Granting Unopposed Mot. for
Extension of Time to File Resp. (ECF No. 35). On August 24, 2017, the Magistrate
Judge suspended all deadlines until a privilege issue was resolved.
Report of
Telephone Conference and Order (ECF No. 38).
In September 2017, however, Puerto Rico was struck in quick succession with
two disastrous hurricanes: Hurricane Irma and Hurricane Maria, the latter a deadly
Category 5 hurricane. This case was placed on hold as Puerto Rico recovered from
The Court interchangeably refers to the Defendant as the Attorney General, the DOJ, and the
USAO as the context requires.
2
Loretta Lynch was the Attorney General of the United States in 2016 when AUSA MárquezMarín initiated her Complaint. Compl. ¶ 3.5. Pursuant to Federal Rule of Civil Procedure 25(d),
Attorney General William P. Barr was “automatically substituted as a party” upon his confirmation
as Attorney General of the United States.
1
2
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the devastating impact of the hurricanes. See Mot. Resubmitting (with /S/ for Elec.
Signature) Informative Mot. Concerning Conditions Faced by Pl.’s Counsel (ECF No.
49). As late as October 30, 2017, for example, AUSA Márquez-Marín’s counsel was
still without electricity in her law office, and when she regained electricity by
generator, it could be operated only six hours per day. Mot. for Extension of Time
(ECF No. 53). The privilege issue was finally resolved by the Magistrate Judge on
June 28, 2018. Decision and Order on Pl.’s Mot. to Compel Produc. or for in Camera
Review (ECF No. 69); Suppl. Decision and Order on Pl.’s Mot. to Compel (ECF No.
71).
By October 25, 2018, the parties completed discovery and the Magistrate Judge
issued a procedural order, establishing deadlines for the parties to file and respond
to a prospective motion for summary judgment. Procedural Order (ECF No. 77).
After the parties filed a joint motion, the Magistrate Judge reset the deadlines on
February 7, 2020. Joint Mot. for Revised Scheduling Order (ECF No. 84); Order
Granting Joint Mot. for Revised Scheduling Order (ECF No. 85).
On April 18, 2019, the Defendant filed a motion for summary judgment, a
statement of material facts, and a joint stipulation. Def.’s Mot. for Summ. J. (ECF
No. 92) (Def.’s Mot.); Def.’s Statement of Material Facts (ECF No. 93) (DSMF); Joint
Stips. (ECF No. 91) (Stip.).
On June 27, 2019, AUSA Márquez-Marín filed a
statement of facts in opposition to the Defendant’s statement of material facts. Pl.’s
Statement of Facts in Opp’n to Summ. J. (ECF No. 122) (PSAMF). On July 17, 2019,
AUSA Márquez-Marín filed a response to the Defendant’s statement of material facts.
3
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Pl.’s Opp’n Statement of Facts Admitting, Denying or Clarifying Facts Submitted by
Def. at Docket 93 (ECF No. 126) (PRDSMF). On July 30, 2019, AUSA Márquez-Marín
filed an opposition to the Defendant’s Motion for Summary Judgment. Pl.’s Opp’n to
Mot. for Summ. J. (ECF No. 134) (Pl.’s Opp’n).
On September 6, 2019, the Defendant filed a reply to AUSA Márquez-Marín’s
statement of additional material facts, Def.’s Resp. to Pl.’s Statement of Additional
Material Facts (ECF No. 138) (DRPSAMF), and a reply to AUSA Márquez-Marín’s
response to the motion for summary judgment. Def.’s Reply in Supp. of Mot. for
Summ. J. (ECF No. 139) (Def.’s Reply).
On October 1, 2019, AUSA Márquez-Marín filed a motion for leave to file a surreply and the sur-reply, which the Court granted permission to file on October 2,
2019. Pl.’s Second Req. for Leave to Respond to New Arguments Contained Def.’s
Reply to Opp’n to Mot. for Summ. J. (ECF No. 149); id., Attach. 1, Pl.’s Resp. to Def.’s
Reply to Opp’n to Mot. for Summ. J. (Pl.’s Sur-resp.); Order Granting Mot. for Leave
to File Resp. (ECF No. 151). On October 15, 2019, the Defendant sur-replied to AUSA
Márquez-Marín’s sur-response to his motion for summary judgment. Def.’s Sur-Reply
to Pl.’s Resp. to Def.’s Reply (ECF No. 152) (Def.’s Sur-reply).
B.
The Facts
1.
Carmen Márquez-Marín’s Professional Background
Carmen Márquez-Marín, licensed as an attorney in 1996, is a graduate of the
University of Puerto Rico School of Law. 3 PSAMF ¶ 1; DRPSAMF ¶ 1; Stip. ¶ 1;
This statement of facts encompasses nearly two decades of AUSA Márquez-Marín’s
employment at the USAO in San Juan, Puerto Rico. The statements of fact mention over sixty
3
4
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DSMF ¶ 1; PRDSMF ¶ 1. She has a Master’s Degree in Environmental Law from
Vermont Law School and a Master’s Degree in Anthropology from Texas A&M.
PSAMF ¶ 1; DRPSAMF ¶ 1. On December 16, 2001, AUSA Márquez-Marín started
working as an AUSA at the USAO for the District of Puerto Rico in San Juan, Puerto
Rico. 4 Stip. ¶ 2; DSMF ¶ 2; PRDSMF ¶ 2; PSAMF ¶ 2; DRPSAMF ¶ 2. Then United
States Attorney Guillermo Gil hired AUSA Márquez-Marín subject to a background
investigation. Stip. ¶ 2; DSMF ¶ 2; PRDSMF ¶ 2.
For salary purposes, she was placed in an AD 25-26 (Administratively
Determined) grade based on her level of experience as an attorney and given a
starting salary of $60,000 per year. 5 Stip. ¶ 2; DSMF ¶ 2; PRDSMF ¶ 2; PSAMF ¶¶ 2,
4; DRPSAMF ¶¶ 2, 4. AUSA Jenifer Hernández began work at the office on the exact
same day as AUSA Márquez-Marín. PSAMF ¶ 3; DRPSAMF ¶ 3. Based on her years
individuals. But the more confusing aspect of the facts is the ever-changing roles these individuals
played over the last two decades. To assist the reader, the Court included a cast of individuals at the
end of this opinion, which clarifies each mentioned individual and his or her various roles as best as
the Court could make them out.
4
Paragraph two of AUSA Márquez-Marín’s statement of additional material facts states that
“[AUSA] Márquez[-Marín] was first hired as an AUSA on December 16, 2001.” PSAMF ¶ 2; DRPSAMF
¶ 2. The Defendant issues a qualified response, arguing that AUSA Márquez-Marín started work on
that date rather than being hired on this date. Given that AUSA Márquez-Marín admits paragraph
two of the Defendant’s statement of material facts, which lists this date as when she started work, the
Court accepts this qualification.
5
The Defendant disputes AUSA Márquez-Marín’s statement that she was placed in an AD 2526 paygrade. PSAMF ¶ 2; DRPSAMF ¶ 2. The Defendant claims that the pay table upon which AUSA
Márquez-Marín relies upon for her paygrade was not properly produced in discovery. DRPSAMF ¶ 2.
It does not matter. In her sworn statement that she cites in support of her paragraph two,
AUSA Márquez-Marín stated that her original paygrade was AD 25-26. PSAMF, Attach. 1, Ex. 1:
Decl. by Pl. Carmen Márquez-Marín under Penalty of Perjury ¶ 8 (Márquez-Marín Decl.). As this fact
is within her personal knowledge, her sworn statement is competent evidence of the fact. See SantiagoRamos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000). As the Court is required to
view disputed facts in the light most favorable to the non-movant, the Court does not accept the
Defendant’s denial of the paygrade level at which AUSA Márquez-Marín entered the USAO in 2001.
The Defendant denies paragraph four in the AUSA Márquez-Marín’s statement of additional
material facts. DRPSAMF ¶ 4. However, for the same reasons set forth above, the Court rejects the
denial.
5
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of experience, AUSA Hernández’s paygrade at the beginning of 2002 was AD 21-24. 6
PSAMF ¶ 3; DRPSAMF ¶ 3.
AUSA Márquez-Marín had several years more
experience as an attorney than AUSA Hernández. 7 PSAMF ¶¶ 4, 212; DRPSAMF
¶¶ 4, 212. During the year 2002, the difference between AUSA Márquez-Marín and
AUSA Hernández was reflected in their salaries and AD ranges. PSAMF ¶ 213;
DRPSAMF ¶ 213. AUSA Márquez-Marín was deemed an AD grade of 25 to 26
(reflecting five to seven years of experience) and she had a salary of $64,100. PSAMF
¶ 213; DRPSAMF ¶ 213. AUSA Hernández had an AD grade of 21 to 24 and a salary
of $48,000. 8 PSAMF ¶ 213; DRPSAMF ¶ 213.
According to Judge Steven McAuliffe, then Chief Judge of the United States
District Court for the District of New Hampshire, who presided over the case of
Márquez-Marín v. González, Attorney General, 3:05-cv-01619-SJM, 9 during AUSA
Márquez-Marín’s first two and a half years as an AUSA from late 2001 to August
2004, she
seemingly enjoyed unqualified and enthusiastic support among the
federal and commonwealth law enforcement personnel with whom she
The Defendant admits that AUSA Hernández was hired at the same time as AUSA MárquezMarín. DRPSAMF ¶ 3. But the Defendant denies that AUSA Hernández’s paygrade was AD 21-24 in
2002. DRPSAMF ¶ 3. The Defendant points out that a DOJ employee can only have one paygrade at
a time. DRPSAMF ¶ 3. For purposes of the motion for summary judgment, the Court must view
disputed facts in the light most favorable to the non-movant, namely AUSA Márquez-Marín, and it
therefore included the level of AUSA Hernández’s paygrade as sworn to by AUSA Márquez-Marín and
declines to accept the Defendant’s denial.
7
AUSA Márquez-Marín makes the same allegation she makes in her additional paragraph four
in slightly different language in her additional paragraph two hundred and twelve. PSAMF ¶ 212.
The DOJ denies the paragraph for similar foundational reasons. DRPSAMF ¶ 212. The Court
overrules the DOJ’s denial.
8
The DOJ denies AUSA Márquez-Marín’s additional paragraph two hundred and thirteen.
DRPSAMF ¶ 213. The Court overrules the DOJ’s denial for the reasons in notes 5 and 6 above and
because it is required to view contested facts in the light most favorable to AUSA Márquez-Marín.
9
The parties stipulate that the docket number was 05-1619. Stip. ¶ 5. Although not incorrect,
the Court inserted the complete docket number reflected in the Court’s CM-ECF filing system.
6
6
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worked. Indeed, law enforcement officers testified persuasively and
emphatically [at trial] that it was the new and inexperienced Márquez[Marín] who quickly established a reputation as a “go-to” prosecutor,
while her more experienced supervisors seemed content to let their cases
languish unattended. 10
PSAMF ¶ 5 (some alterations in original); DRPSAMF ¶ 5. 11
2.
Carmen Márquez-Marín Is Terminated: August 27, 2004
In mid-2002, Humberto (Bert) García became the United States Attorney for
the District of Puerto Rico. Stip. ¶ 3; DSMF ¶ 3; PRDSMF ¶ 3. United States
Attorney García appointed Rosa Emilia Rodríguez, then Executive Assistant United
States Attorney (EAUSA), to be the First Assistant United States Attorney (FAUSA).
Stip. ¶ 3. In August 2004, United States Attorney García sent a letter to the director
of the Executive Office of the United States Attorneys (EOUSA) in the DOJ
recommending that AUSA Márquez-Marín’s employment be terminated. DSMF ¶ 4;
PRDSMF ¶ 4; PSAMF ¶ 8; DRPSAMF ¶ 8. United States Attorney García sent his
letter to the EOUSA with its termination recommendation after AUSA MárquezThe Defendant issues a qualified response to this paragraph. DRPSAMF ¶ 5. In its response,
the Defendant posits more statements in then Chief Judge McAuliffe’s order following the civil trial.
DRPSAMF ¶ 5. The portions of the McAuliffe post-trial order that the Defendant quotes are accurate;
however, reading the entire order, the Court declines to include them in the statement of facts because
there are other portions of the same order favorable to AUSA Márquez-Marín. To selectively include
unfavorable portions of the order would violate the Court’s obligation to view contested facts in the
light most favorable to AUSA Márquez-Marín.
11
The Defendant objects to AUSA Márquez-Marín’s paragraph six of her additional facts on the
ground that it is not supported by a citation to the record in violation of District of Puerto Rico Local
Rule 56(c). PSAMF ¶ 6; DRPSAMF ¶ 6. The Court agrees. Local Rule 56(c) requires that each
opposing statement must be “supported by a record citation as required by subsection (e) of this rule.”
D.P.R. LOC. R. 56(c). Local Rule 56(e) states that the Court “may disregard any statement of fact not
supported by a specific citation to record material properly considered on summary judgment.” D.P.R.
LOC. R. 56(e). AUSA Márquez-Marín’s paragraph six contains no record citation at all and the Court
disregards it to the extent its assertions are not properly made elsewhere.
Of note, despite the lack of record citation, the Defendant admits the portion of the paragraph
stating that Rosa Emilia Rodríguez became the United States Attorney in 2006 and was still in that
position as of September 2019. DRPSAMF ¶ 6. The Court does not find this fact relevant and did not
include it.
10
7
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Marín complained of discrimination, which is protected activity, in the USAO. 12
PSAMF ¶ 12; DRPSAMF ¶ 12.
In August 2004, the director of the EOUSA in the DOJ issued a letter of
termination for AUSA Márquez-Marín. 13 Stip. ¶ 4; DSMF ¶ 4; PRDSMF ¶ 4; PSAMF
¶ 10; DRPSAMF ¶ 10. The termination letter was delivered to AUSA Márquez-Marín
on August 27, 2004, effective immediately. Stip. ¶ 4; DSMF ¶ 4; PRDSMF ¶ 4;
PSAMF ¶ 7; DRPSAMF ¶ 7. As of August 27, 2004, United States Attorney García
had already named Rosa Emilia Rodríguez as the FAUSA. 14 PSAMF ¶ 9; DRPSAMF
¶ 9.
3.
Carmen Márquez-Marín’s First Federal Lawsuit: 2005-07
After completing the required EEO process, on June 9, 2005, AUSA MárquezMarín filed a complaint in this Court alleging discrimination based on gender and
In paragraph twelve of her additional facts, AUSA Márquez-Marín asserts that United States
Attorney García’s termination letter was issued after she complained about national origin and gender
discrimination in the USAO. PSAMF ¶ 12. The Defendant admits that the letter was sent after AUSA
Márquez-Marín complained of “discrimination.” DRPSAMF ¶ 12. The Court agrees in part and
disagrees in part with the Defendant’s objection. AUSA Márquez-Marín’s citation does not mention
discrimination based on national origin or gender, but it does mention that she engaged in “protected
activity.” PSAMF ¶ 12. The Court included that portion of paragraph twelve of her additional facts
as is supported by the record citation and the Defendant’s admission.
13
In paragraph ten of her additional facts, AUSA Márquez-Marín asserts that the EOUSA’s
termination decision was “based on” United States Attorney García’s recommendation letter. PSAMF
¶ 10. The Defendant objects on the ground that the citation does not support this assertion.
DRPSAMF ¶ 10. The Court agrees and did not include this portion of the facts in its recitation.
14
In paragraph eleven of her additional facts, AUSA Márquez-Marín asserts that the
termination letter contained allegations of dishonesty which, according to the DOJ, were based on a
“perception” held by then FAUSA Rodríguez. PSAMF ¶ 11. The Defendant objects on the ground that
the citation does not support the assertion. DRPSAMF ¶ 11. The Court agrees with the Defendant.
AUSA Márquez-Marín does not cite the termination letter. Instead, she cites a portion of Chief
Judge McAuliffe’s October 11, 2007, post-trial order, which discusses the termination letter and
concludes that it should be expunged. PSAMF ¶ 11. The problem is that Judge McAuliffe’s order does
not state that then FAUSA Rodríguez’s perception of AUSA Márquez-Marín’s dishonesty led to the
termination letter or was present in the letter. The Court declines to include AUSA Márquez-Marín’s
additional paragraph eleven because it is not supported by the record.
12
8
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national origin as well as retaliation. Stip. ¶ 5; DSMF ¶ 5; PRDSMF ¶ 5. The case
was titled, Márquez-Marín v. Gonzalez, Attorney General, and was given docket
number 3:05-cv-1619-SJM. Stip. ¶ 5; DSMF ¶ 5; PRDSMF ¶ 5. After the judges of
the District of Puerto Rico recused themselves, the case was assigned to the then
Chief Judge McAuliffe from the District of New Hampshire and was given the
additional New Hampshire docket number, 05-cv-247, as well. Stip. ¶ 5; DSMF ¶ 5;
PRDSMF ¶ 5. After United States Attorney García retired in June 2006, Rosa Emilia
Rodríguez became the next person to hold the United States Attorney position while
the Márquez-Marín case was still pending trial. 15 DSMF ¶ 6; PRDSMF ¶ 6; PSAMF
¶ 13; DRPSAMF ¶ 13.
AUSA Márquez-Marín’s case went to trial before a jury in San Juan, Puerto
Rico in March 2007. Stip. ¶ 6; DSMF ¶ 7; PRDSMF ¶ 7; PSAMF ¶ 14; DRPSAMF
¶ 14. Testifying at trial was then United States Attorney Rodríguez, 16 who had been
FAUSA at the time of the dismissal and was the one with the “perception” that AUSA
Márquez-Marín had been dishonest. PSAMF ¶ 15; DRPSAMF ¶ 15. United States
Attorney Rodríguez had been deposed in the course of the pretrial proceedings in the
first discrimination case before this Court, PSAMF ¶ 16; DRPSAMF ¶ 16, and was
cross-examined in the trial regarding her role in AUSA Márquez-Marín’s termination
The Defendant qualifies AUSA Márquez-Marín’s additional paragraph thirteen by stating that
Rosa Emilia Rodríguez became United States Attorney “while the Court was still assessing
Defendant’s motion for summary judgment.” DRPSAMF ¶ 13. The Court does not see a conflict
between the Defendant’s statement and the case pending trial, so the Court rejects the qualification.
16
While Rosa Emilia Rodríguez was United States Attorney at the time of these filings, she is
no longer in the position. The Court referred to her as United States Attorney Rodríguez throughout
the rest of the facts.
15
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that the jury determined had been illegally retaliatory. 17 PSAMF ¶ 17; DRPSAMF
¶ 17.
As soon as United States Attorney Rodríguez was appointed as United States
Attorney, and by the time of the trial in AUSA Márquez-Marín’s case, she appointed
María Domínguez to the position of FAUSA. 18
PSAMF ¶ 18; DRPSAMF ¶ 18.
Although FAUSA Domínguez did not testify at the 2007 trial, she attended frequently
and listened to the testimony as part of the public in spite of her other extensive
duties as FAUSA. 19 PSAMF ¶ 19; DRPSAMF ¶ 19.
The jury rejected AUSA Márquez-Marín’s claims of discrimination and found
in her favor on her retaliation claim. Stip. ¶ 6; DSMF ¶ 7; PRDSMF ¶ 7. The jury
found that AUSA Márquez-Marín had been the victim of unlawful retaliation in
connection with the termination of her employment in violation of the EEO Act. 20
AUSA Márquez-Marín’s additional paragraph seventeen states that United States Attorney
Rodríguez was cross-examined about AUSA Márquez-Marín’s “illegal termination.” PSAMF ¶ 17. The
Defendant objects on the ground that at the time United States Attorney Rodríguez was crossexamined, the termination had not been established as illegal. DRPSAMF ¶ 17. The Court altered
the statement to reflect that the jury later found the termination to have been illegally retaliatory.
18
AUSA Márquez-Marín’s additional paragraph eighteen states that the position of FAUSA is a
“trust position.” PSAMF ¶ 18. The Defendant objects on the ground that the proposition that the
FAUSA is a trust position is not supported by the record citation. DRPSAMF ¶ 18. The Court agrees
with the Defendant and eliminated that phrase from AUSA Márquez-Marín’s additional paragraph
eighteen.
19
The Defendant objects to a portion of this additional statement on the ground that FAUSA
Domínguez has a slightly different recollection of her attendance. DRPSAMF ¶ 19. The Court
overrules the Defendant’s objection because paragraph seventeen is supported by AUSA MárquezMarín’s sworn declaration and this is a matter presumably within her personal knowledge. In
evaluating conflicting evidence, the Court must view the record in the light most favorable to AUSA
Márquez-Marín.
20
AUSA Márquez-Marín’s original additional paragraph twenty states that the jury found that
she had been the victim of unlawful retaliation in violation of the “Equal Employment Opportunity
law.” PSAMF ¶ 20. Noting that the jury made no mention of the “Equal Employment Opportunity
law,” the Defendant feigns ignorance, stating that it “is unclear to what [AUSA] Márquez[-Marín] is
referring.” DRPSAMF ¶ 20. This objection is frivolous. As the Defendant well knows, 42 U.S.C.
§ 2000e et al. is variously referred to as “Title VII of the Civil Rights Act of 1964,” see PSAMF, Attach.
1, Ex. C: Judge McAuliffe’s Order Denying Summ. J. at 1-2, and “Equal Opportunity Act of 1972.” P.L.
17
10
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PSAMF ¶ 20; DRPSAMF ¶ 20. Although the jury awarded compensatory damages of
$136,325, it found that AUSA Márquez-Marín was not entitled to an award of back
pay. Stip. ¶ 6; DSMF ¶ 7; PRDSMF ¶ 7. The Court did not immediately enter
judgment on the verdict and entertained post-trial motions from the parties. Stip.
¶ 6; DSMF ¶ 7; PRDSMF ¶ 7.
On October 10, 2007, Chief Judge McAuliffe ordered the USAO to reinstate
AUSA Márquez-Marín, but consistent with the jury verdict Judge McAuliffe declined
to award back pay to AUSA Márquez-Marín. Stip. ¶ 6; DSMF ¶ 8; PRDSMF ¶ 8.
Judge McAuliffe found that the charges against AUSA Márquez-Marín leading to her
termination were “unwarranted and unfair . . ..” PSAMF ¶ 22; DRPSAMF ¶ 22. He
explained that the “charges against [AUSA] Márquez[-Marín], and offered as
justification by the DOJ for her termination, were patently without merit . . .. These
charges were, at best, unfair exaggerations bearing only the most passing and
strained relationship to reality, and at worst, were trumped up.” PSAMF ¶ 22;
DRPSAMF ¶ 22. In his post-trial order, Judge McAuliffe affirmed that “the evidence
did not support the charges (made in the termination letter) that [AUSA] Márquez[Marín] engaged in a pattern of dishonesty or misconduct.” PSAMF ¶ 23; DRPSAMF
¶ 23.
Judge McAuliffe went on to state that “those charges were not only
unwarranted and unfair, but certainly professionally devastating and no doubt
personally devastating as well.” PSAMF ¶ 23; DRPSAMF ¶ 23.
92-261, § 1, 86. Stat. 103 (Mar. 24, 1972) (“[T]his Act may be cited as the ‘Equal Employment
Opportunity Act of 1972’”).
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Judge McAuliffe ordered the DOJ to reinstate AUSA Márquez-Marín to the
USAO “with the same status, rights and privileges she had as of the date she was
unlawfully terminated” and to “remove from [AUSA] Márquez[-Marín]’s Official
Personnel File and any other government files into which they may have been placed:
(1) the United States Attorney’s letter recommending [AUSA] Márquez[-Marín]’s
termination; (2) the termination letter itself; and (3) all documents referencing or
alluding to those letters, or the substantive charges involving a pattern of dishonesty
or misconduct leveled against [AUSA] Márquez[-Marín] and supposedly warranting
her termination.” 21 PSAMF ¶ 24; DRPSAMF ¶ 24. In ordering reinstatement, Judge
McAuliffe stated that once AUSA Márquez-Marín was reinstated, he expected United
States Attorney Rodríguez to “proceed in a lawful, fair, non-vindictive and nondiscriminatory manner with regard to [her] employment and future career.” PSAMF
¶ 25 (alteration in original); DRPSAMF ¶ 25.
Judge McAuliffe ordered payment of attorney’s fees and litigation expenses in
an amount exceeding $420,000. Stip. ¶ 6; DSMF ¶ 8; PRDSMF ¶ 8. Approximately
one week later, Judge McAuliffe issued a judgment incorporating the terms of his
October 10, 2007, order. Stip. ¶ 6; DSMF ¶ 8; PRDSMF ¶ 8.
AUSA Márquez-Marín is aware of no other case in the history of the USAO in
the DOJ wherein a court has ordered the reinstatement of an AUSA who alleged and
AUSA Márquez-Marín’s additional paragraph twenty-four is a bit garbled. PSAMF ¶ 24. The
Defendant interposes a qualified response, positing Judge McAuliffe’s actual language. DRPSAMF
¶ 24. To avoid any controversy, the Court quoted the exact language in Judge McAuliffe’s order.
21
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proved that she had been subject to illegal retaliation. 22 PSAMF ¶ 26; DRPSAMF
¶ 26. The DOJ admitted that “[AUSA] Márquez[-Marín] is the only AUSA in Puerto
Rico, who, in the last ten years, obtained a jury verdict against the United States
(represented by the Attorney General) determining that she had been retaliated
against in violation of federal law.” PSAMF ¶ 29; DRPSAMF ¶ 29. Aside from AUSA
Márquez-Marín’s case, United States Attorney Rodríguez has not had to handle a
situation where an AUSA has been reinstated to her position following a jury
verdict. 23 PSAMF ¶ 30: DRPSAMF ¶ 30.
4.
Post-Judgment Controversy and Reinstatement: 2007-08
The DOJ (with United States Attorney Rodríguez) opposed AUSA MárquezMarín’s request for reinstatement but did not oppose her request for expungement of
the termination letter and the United States Attorney’s letter recommending
In AUSA Márquez-Marín’s additional fact paragraph twenty-seven, she states that she
requested the DOJ to admit that there had been no similar case in the last ten years and that the DOJ
stated that after reasonable inquiry, it did not know if there was another such case. PSAMF ¶ 27.
The Defendant interposes a qualified response, noting that in fact it answered that it could “neither
admit nor deny this information. Defendant makes reasonable inquiry, and the information she knows
or can readily obtain is insufficient to enable her to admit or deny. To the extent a [response] is
required, the request is denied.” DRPSAMF ¶ 27 (alteration in original). However unsatisfactory the
DOJ’s response, the Court agrees with the DOJ that it did not admit the requested fact and the Court
excluded it. While the Defendant admits that AUSA Márquez-Marín asked the question, it is not
relevant without the answer and the Court also excluded that portion of the paragraph.
In the same vein, in AUSA Márquez-Marín’s additional fact paragraph twenty-eight, she
asserts that it is a “reasonable inference” that no such case exists because Attorney General Lynch
(now Barr) would have been “in a position to know” whether this had happened or not. PSAMF ¶ 28.
AUSA Márquez-Marín provides no citation for this statement.
The Defendant objects, noting that the DOJ is a “large government agency” and there is no
“centralized database” to track this information. DRPSAMF ¶ 28. Taking the Defendant’s response
at face value, the Court agrees with the DOJ that it is not a “reasonable inference” that there has been
no other similar case in the last ten years within the DOJ and declines to include this asserted fact.
23
The Defendant quibbles about AUSA Márquez-Marín’s exact language in her additional fact
paragraph thirty and notes that the asserted is not supported by a record citation. DRPSAMF ¶ 30.
The Court agrees that as there is no citation to the record, the Court could ignore the paragraph, but
in light of the DOJ’s admission, the Court included the assertion only to the extent that the DOJ
admits it.
22
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termination from her Official Personnel File. 24 PSAMF ¶ 31; DRPSAMF ¶ 31. Judge
McAuliffe rejected the DOJ position, noting that the United States (Government) had
“not offered any compelling reasons why [AUSA Márquez-Marín] could not be
successfully returned to the position she would have occupied had the DOJ not
unlawfully discriminated against her.” PSAMF ¶ 32; DRPSAMF ¶ 32. On October
29, 2007, AUSA Carole Fernández, an attorney with the Southern District of Florida
and counsel for the USAO, wrote to Judith Berkan, counsel for AUSA MárquezMarín, that “the United States Attorney for the District of Puerto Rico has asked that
[AUSA Carole Fernández] convey that [United States Attorney Rodríguez] and her
Office respect the judicial process and are committed to complying fully in good faith
with the Court’s order and judgment.” 25 Stip. ¶ 7; DSMF ¶ 9; PRDSMF ¶ 9.
24
AUSA Márquez-Marín’s original additional paragraph thirty-one reads:
The DOJ (with Rosa Emilia Rodríguez as the U.S. Attorney for Puerto Rico) opposed
[AUSA] Márquez[-Marín]’s request for reinstatement and the expungement of the
dismissal letter containing the false allegations against her.
PSAMF ¶ 31. In support, AUSA Márquez-Marín cites Exhibit E as the DOJ response to her motion
for post-trial equitable relief. PSAMF ¶ 31.
In response, the Defendant points out that Exhibit E is not the DOJ response. DRPSAMF
¶ 31. The DOJ is correct. However, AUSA Márquez-Marín cites the docket number of the filing for
Márquez-Márin v. Gonzalez Attorney General, No. 05-cv-1619-SJM, and although under no obligation
to do so, the Court located the DOJ filing to clarify the dispute.
The DOJ interposes a qualified response to AUSA Márquez-Marín’s assertion that it opposed
her request for reinstatement, saying that it “argued that reinstatement was not an appropriate
remedy following the jury’s verdict.” DRPSAMF ¶ 31. The Court rejects the DOJ’s qualified response.
The difference between opposing reinstatement and claiming it was not appropriate is too subtle to be
credited.
The DOJ denies that it opposed expungement of the recommendation and termination letters.
DRPSAMF ¶ 31. Here, the DOJ is correct and the Court did not include this claim in its statement of
facts because AUSA Márquez-Marín’s assertion is not supported by the record.
The DOJ denies that United States Attorney Rodríguez “orchestrated the alleged opposition.”
DRPSAMF ¶ 31. AUSA Márquez-Marín’s paragraph thirty-one does not allege that United States
Attorney Rodríguez orchestrated the alleged opposition, only that the DOJ, including United States
Attorney Rodríguez, opposed reinstatement. The Court overrules the DOJ’s denial as non-responsive.
25
This fact appears in the Joint Stipulation of the parties. Stip. ¶ 7. The same fact appears in
the Defendant’s statement of material facts. DSMF ¶ 9. In her response to the Defendant’s statement
14
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There was, however, a delay in AUSA Márquez-Marín’s return to the USAO.
DSMF ¶ 10; PRDSMF ¶ 10. AUSA Carole Fernández also informed Attorney Berkan
that the Government, as part of the reinstatement process, needed to conduct a
background investigation on AUSA Márquez-Marín since her initial background
check had been conducted in 2001 and she was overdue for a reinvestigation. Stip.
¶ 8. All AUSAs are not only required to undergo detailed background investigations
prior to commencing employment but also are required to submit to reinvestigations
of their backgrounds five years after initial employment and every five years
thereafter. Stip. ¶ 8. AUSA Márquez-Marín, assuming the reinvestigation would be
conducted quickly and that it would allow her a brief period to wrap up certain
outstanding obligations, initially agreed. Stip. ¶ 9. From AUSA Márquez-Marín’s
perspective, however, for a period of five months, the DOJ simply failed to reinstate
her, alleging that it could not comply immediately with the Court’s order because it
purportedly had to complete a background investigation. 26 PSAMF ¶ 33; DRPSAMF
¶ 33.
Eventually, AUSA Márquez-Marín became frustrated with the length of time
the investigation was taking and on February 25, 2008, she filed a motion for
of material fact paragraph nine, AUSA Márquez-Marín objects to the same fact she earlier stipulated
to on the ground that the letter is not admissible for the truth of its contents and is inadmissible to
prove motive. PRDSMF ¶ 9. The Court overrules AUSA Márquez-Marín’s objection. AUSA MárquezMarín may not object to a fact to which she has stipulated without qualification.
26
The DOJ interposes a qualified response in part and a denial in part. DRPSAMF ¶ 33. The
DOJ qualifies its response by objecting to the words “simply failed to reinstate” and “purportedly” on
the ground that they are argumentative. DRPSAMF ¶ 33. The Court slightly amended the paragraph
to confirm that this statement represents AUSA Márquez-Marín’s perspective.
In response to the DOJ denial of the assertion that it maintained it could not comply with the
Court’s order, DRPSAMF ¶33, the Court slightly amended the paragraph to state that the DOJ could
not comply “immediately” with the Court’s order.
15
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contempt based on the USAO’s alleged failure to comply with the Court’s order. Stip.
¶ 10. The delay and AUSA Márquez-Marín’s salary were discussed by the parties in
various correspondence, as well as in various motions that AUSA Márquez-Marín and
the DOJ filed with the Court. DSMF ¶ 12; PRDSMF ¶ 12. In one of her letters to
Attorney Berkan, AUSA Carole Fernández wrote:
Let me assure again that the delay in reinstating [AUSA MárquezMarín] is the result of the process involved and not any intent to avoid
complying with the Judgment. The United States Attorney and her
Office have continuously expressed their commitment to reinstating
[AUSA Márquez-Marín] as smoothly, fairly, and expediently as possible
and have done all that could be done by them to insure that this is
accomplished. 27
DSMF ¶ 12; PRDSMF ¶ 12.
On February 27, 2008, two days after AUSA Márquez-Marín filed her motion
for contempt, AUSA Carole Fernández contacted Attorney Berkan and told her that
AUSA Márquez-Marín could return to work on March 17, 2008. Stip. ¶ 11. AUSA
Carole Fernández suggested the possibility of paying AUSA Márquez-Marín back pay
to account for the delay and indicated that AUSA Márquez-Marín would receive a
base salary of $85,000 (plus a cost of living allowance or COLA). Stip. ¶ 11.
On February 28, 2008, AUSA Carole Fernández filed a response to the motion
for contempt. Stip. ¶ 12. AUSA Carole Fernández explained the Government’s
reasoning for the delay in AUSA Márquez-Marín’s return to work, noted that counsel
for the parties had discussed the possibility of an agreement to compensate AUSA
AUSA Márquez-Marín interposes a qualified response to the Defendant’s paragraph twelve on
the ground that it should not be admitted for the truth. PRDSMF ¶ 12. The Court did not include this
letter for its truth but for DOJ’s statement of its then position on reinstatement.
27
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Márquez-Marín for a portion of the delay, and provided a specific date for her return
to work, March 17, 2008. Stip. ¶ 12. AUSA Carole Fernández also confirmed the
substance of the February 27, 2008, communication in a letter to Attorney Berkan
dated February 29, 2008, including mention of the $85,000 (plus COLA) salary AUSA
Márquez-Marín would be receiving. Stip. ¶ 13. AUSA Carole Fernández wrote:
Let me assure again that the delay in reinstating [AUSA] Márquez[Marín] is the result of the process involved and not any intent to avoid
complying with the Judgment. The United States Attorney and her
Office have continuously expressed their commitment to reinstating
[AUSA] Márquez[-Marín] as soon as smoothly, fairly, and expediently
as possible and have done all that could be done by them to insure that
this is accomplished.
Stip. ¶ 13.
On March 6, 2008, Attorney Berkan wrote back to AUSA Carole
Fernández and argued that the proposed pay for AUSA Márquez-Marín was less than
that to which she was entitled. Stip. ¶ 14. Attorney Berkan followed up with a second
letter and an email on March 12, 2008. Stip. ¶ 14.
5.
Reinstatement Salary Dispute and Settlement: 2008-10
Judge McAuliffe ordered AUSA Márquez-Marín reinstated by order dated
October 10, 2007, and AUSA Márquez-Marín returned to work at the USAO pursuant
to that order on March 17, 2008. 28 Stip. ¶ 15; PSAMF ¶¶ 21, 34; DRPSAMF ¶¶ 21,
34; DSMF ¶ 13; PRDSMF ¶ 13. There was a discussion about what AUSA MárquezMarín’s salary would be upon her return to the USAO. 29 DSMF ¶ 11; PRDSMF ¶ 11.
The Defendant objects to AUSA Márquez-Marín’s additional paragraphs twenty-one and
thirty-four, stating that AUSA Márquez-Marín was reinstated on October 10, 2007, and returned to
work at the USAO in March 2008. DRPSAMF ¶¶ 21, 34. The Court agrees and adjusted the language
in the paragraphs to make clear that March 2008 was when AUSA Márquez-Marín began working,
not when she was reinstated by the Court’s order.
29
AUSA Márquez-Marín admits the Defendant’s paragraph eleven but lists numerous comments
including clarifications, additions, and a qualification. The Court does not view any of these comments
28
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AUSA Carole Fernández informed Attorney Berkan that AUSA Márquez-Marín
would receive a base salary of $85,000 (plus COLA). DSMF ¶ 11; PRDSMF ¶ 11. In
March 2008, upon her reinstatement, AUSA Márquez-Marín was given the highest
pay grade in the AD system, AD-29, being credited with “9 or more full years of
service.” PSAMF ¶ 214; DRPSAMF ¶ 214. At that time, AUSA Márquez-Marín was
given a salary of $85,000 (plus COLA). PSAMF ¶ 215; DRPSAMF ¶ 215. This salary
was purportedly set in compliance with the Order of Reinstatement issued by Judge
McAuliffe. 30 PSAMF ¶ 215; DRPSAMF ¶ 215.
The USAO arrived at this salary in the following manner: United States
Attorney Rodríguez told her Human Resources Officer, Pura López, to determine the
salary range that AUSA Márquez-Marín would be in had her employment never been
terminated. DSMF ¶ 11; PRDSMF ¶ 11. Officer López, on her own, performed a
calculation that sought to give AUSA Márquez-Marín credit for the years of
professional experience gained when she had been out of the office (raising her to the
AD-29 level, the highest level) and to provide AUSA Márquez-Marín with pay
increases that by executive order were provided to all federal employees every
January. DSMF ¶ 11; PRDSMF ¶ 11. Officer López did not, however, provide AUSA
Márquez-Marín with any discretionary increases that AUSAs can receive because she
believed, from her reading of the applicable procedures, that one needed to have a
as contradicting the information in paragraph eleven, so the Court disregarded them for the purposes
of this Order.
30
AUSA Márquez-Marín’s additional paragraph two hundred and fifteen refers to the DOJ’s
compliance with Judge McAuliffe’s Order of Reinstatement and “subsequent orders.” PSAMF ¶ 215.
The DOJ interposes a qualified response, indicating that Judge McAuliffe’s subsequent orders were
after March 2008 and therefore could not have affected her March 2008 return to work. DRPSAMF
¶ 215. The Court agrees with the DOJ and did not include the phrase, “and subsequent orders.”
18
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rating of record in an annual evaluation to qualify for such increases, and AUSA
Márquez-Marín had not had any evaluations during the time she was out of the office.
DSMF ¶ 11; PRDSMF ¶ 11. Officer López arrived at a final salary of $78,976.88.
DSMF ¶ 11; PRDSMF ¶ 11. After, however, Officer López brought the results of her
calculations to United States Attorney Rodríguez, United States Attorney Rodríguez
instructed her to raise AUSA Márquez-Marín’s salary to $85,000.
DSMF ¶ 11;
PRDSMF ¶ 11.
On March 17, 2008, the date AUSA Márquez-Marín returned to work (and the
date of her “Notification of Personnel Action”), her salary was $85,000, and AUSA
Hernández’s salary in March 2008 was $91,220, about $6000 more than AUSA
Márquez-Marín’s. 31 PSAMF ¶ 216; DRPSAMF ¶ 216.
AUSA Márquez-Marín returned to work with the understanding that salary
adjustments could be made later if her salary-related arguments were determined to
have merit. Stip. ¶ 15; DSMF ¶ 13; PRDSMF ¶ 13. On March 17, 2008, AUSA
Márquez-Marín filed a motion entitled, “Motion for Order regarding Plaintiff’s Salary
and the Expungement of Letter and Other Post-Trial Remedies.” Stip. ¶ 16. In the
The DOJ interposes a qualified response, noting that on March 16, 2008 (the day before AUSA
Márquez-Marín returned to work), AUSA Hernández’s salary was $83,200, but that on March 30,
2008, AUSA Hernández was elevated to a new AD Grade and her salary was raised to $91,220.
DRPSAMF ¶ 216. The Court declines to accept the DOJ’s qualified response because AUSA MárquezMarín’s additional paragraph two hundred and sixteen does not state that AUSA Hernández’s $91,220
salary was as of March 16, only that it was $91,220 “in March 2018,” and is therefore accurate.
In AUSA Márquez-Marín’s additional paragraph two hundred and seventeen, AUSA MárquezMarín makes assertions about the differences in salary between herself and AUSA Hernández as of
2011. PSAMF ¶ 217. The DOJ denies this paragraph because the record citation does not support the
factual assertion. The Court reviewed the record citation and agrees with the DOJ that it does not
support the assertion. The Court omitted AUSA Márquez-Marín’s additional paragraph two hundred
and seventeen from its statement of facts.
31
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motion, AUSA Márquez-Marín argued that the Government’s determined salary did
not place her in the position in which she reasonably could have expected to be had it
not been for the discharge. Stip. ¶ 16. The problem with the Government’s salary
determination, according to AUSA Márquez-Marín, was that it failed to take into
account properly her years in practice, and hence her AD grade was incorrect. Stip.
¶ 16. AUSA Márquez-Marín also complained that the parties were unable to reach
an agreement concerning back pay to cover the Government’s delay in implementing
the Court’s reinstatement order. Stip. ¶ 16. On April 3, 2008, the Government filed
a response. Stip. ¶ 17.
AUSA Márquez-Marín did not file a reply to the Government’s response. Stip.
¶ 18. Rather, on May 13, 2008, she filed a motion entitled, “Motion Supplementing
Information Related to Request for Contempt or Order to Show Cause.” Stip. ¶ 18.
On June 2, 2008, the Government filed a response to AUSA Márquez-Marín’s
supplemental motion. Stip. ¶ 19. On July 1, 2008, Chief Judge McAuliffe issued an
order denying all of AUSA Márquez-Marín’s pending motions (the motion for
contempt, the motion for order regarding her salary, and the supplemental motion),
but without prejudice to refiling if, after ninety days and good faith mediation efforts
by the parties, any disputes were not resolved. Stip. ¶ 20; DSMF ¶ 14; PRDSMF ¶ 14.
Following the denial of AUSA Márquez-Marín’s motions, the parties attempted
to resolve their disagreements on their own. DSMF ¶ 15; PRDSMF ¶ 15. These
efforts did not, however, yield a final resolution. DSMF ¶ 15; PRDSMF ¶ 15. The
parties then agreed to mediate their differences before a magistrate judge. DSMF
20
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¶ 15; PRDSMF ¶ 15. On August 27, 2009, AUSA Márquez-Marín filed a motion
before Chief Judge McAuliffe for an order of reference to a magistrate judge. Stip.
¶ 21. Although AUSA Márquez-Marín filed the motion, both parties agreed to ask
Chief Judge McAuliffe to refer the case to a magistrate judge for mediation. 32 DSMF
¶ 15; PRDSMF ¶ 15.
However, rather than grant AUSA Márquez-Marín’s motion, Chief Judge
McAuliffe conducted a telephonic hearing to address the underlying disputes. Stip.
¶ 21; DSMF ¶ 15; PRDSMF ¶ 15. This was followed by an order dated January 28,
2010, in which Chief Judge McAuliffe wrote that “the parties now have a clear
understanding of what the judgment ordering reinstatement requires” and that
AUSA Márquez-Marín was entitled to all pay and benefits that would have accrued
to her benefit during a four-month period after the judgment. Stip. ¶ 21; DSMF ¶ 15;
PRDSMF ¶ 15. In the January 28, 2010, order, Chief Judge McAuliffe also wrote that
“the delay associated (with the process of reinstating [AUSA] Márquez[-Marín]) is
entirely attributable to the government—after all, the government wrongfully
terminated [AUSA Márquez-Marín] in the first place, and had it not acted wrongfully,
no deprivations would have accompanied the security investigation.” 33 DSMF ¶ 15;
PRDSMF ¶ 15.
AUSA Márquez-Marín interposes a qualified response, emphasizing that although she made
the motion, both parties agreed to mediate before a magistrate judge. PRDSMF ¶ 15. To view the
facts in the light most favorable to AUSA Márquez-Marín, the Court added her statement.
33
In her qualified response, AUSA Márquez-Marín adds this quotation from Chief Judge
McAuliffe’s order. PRDSMF ¶ 15. The Court included the quoted sentence because it is required to
view contested matters in the light most favorable to AUSA Márquez-Marín.
32
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On July 9, 2010, the parties signed a settlement agreement. 34 Stip. ¶ 22;
DSMF ¶ 16; PRDSMF ¶ 16. The settlement agreement provided for a payment of
$38,600 to AUSA Márquez-Marín as well as fifty-eight hours of annual leave and
thirty-six hours of sick leave. DSMF ¶ 16; PRDSMF ¶ 16. As part of the settlement
agreement, AUSA Márquez-Marín released claims she had up to that point “in or in
connection with [her lawsuit] or any claims raised in [that] action,” including but not
limited to those related to reinstatement, wages, salary, and benefits. DSMF ¶ 16
(alterations in original); PRDSMF ¶ 16.
It was well over two years later, by virtue of an agreement subscribed on July
9, 2010, that AUSA Márquez-Marín was finally paid for the time during which the
DOJ failed to fully implement the Court’s Order of Reinstatement, including
restoration of her annual leave. 35 PSAMF ¶ 35; DRPSAMF ¶ 35. These issues were
resolved only after AUSA Márquez-Marín requested a finding of contempt against
the Government in the motion submitted on February 25, 2008. 36 PSAMF ¶ 36;
DRPSAMF ¶ 36.
In addition, Judge McAuliffe held a telephonic conference on
The Joint Stipulation contains an inaccurate date. Stip. ¶ 22. It says that parties signed a
settlement agreement on July 19, 2010. Stip. ¶ 22. However, as Exhibit Twelve to the Joint
Stipulation plainly reveals, AUSA Márquez-Marín signed the settlement agreement on July 7, 2010,
Attorney Berkan on July 8, 2010, and AUSA Carole Fernández on July 9, 2010. Stip., Attach. 1, Ex.
12: Stip. of Compromise Settlement and Release at 97. The Court used the last date of July 9, 2010, as
the effective date of the settlement.
35
The DOJ qualifies and denies portions of this paragraph. DRPSAMF ¶ 35. The Court slightly
altered the paragraph to soften the argumentative language and to correct the date of the last
signatory.
36
The DOJ objects to AUSA Márquez-Marín’s additional paragraph thirty-six on the ground that
there was a causal connection between the filing of the motion for contempt and the settlement.
DRPSAMF ¶ 36. The Court overrules the DOJ’s denial because it is required to view contested facts
and logical inferences from those facts in the light most favorable to AUSA Márquez-Marín. It is a
logical inference that the filing of a motion to hold the DOJ in contempt of court may have brought
about the settlement of the issues that were the subject of the motion.
34
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January 8, 2010, well over a year after reinstatement was ordered. 37 PSAMF ¶ 37;
DRPSAMF ¶ 37. 38
After the telephone conference, Judge McAuliffe issued the
following order on January 28, 2010:
ORDER
Re: Document No. 59, Assented-to Motion for Order Referring
Post-Trial Matters to Magistrate Judge Bowler
Ruling: Denied, without prejudice. After conducting a hearing
by telephone conference call, it appears that the parties now have a clear
understanding of what the judgment ordering reinstatement requires.
[AUSA Márquez-Marín] and the government agreed to a one month
delay in reinstatement after judgment, for the benefit of both parties.
Thereafter, [AUSA Márquez-Marín] was not reinstated for another four
months, and, was not paid during that time. While the government
suggests that it could not reinstate her without first conducting another
security investigation, the delay associated with that process is entirely
attributable to the government—after all, the government wrongfully
terminated [AUSA Márquez-Marín] in the first place, and had it not
acted wrongfully, no deprivation would have accompanied the security
investigation. [AUSA Márquez-Marín] is entitled to all pay and benefits
that would have accrued to her benefit during that four month period,
until the time her pay and benefits were actually restored and paid. If
further proceedings are required to enforce the judgment, and no
37
AUSA Márquez-Marín’s original additional paragraph thirty-seven reads:
In a telephonic conference held on January 8, 2010, well over a year after
reinstatement was ordered, Judge McAuliffe very strenuously called the DOJ to task
for failing to comply with his orders. Undersigned counsel for [AUSA Márquez-Marín],
Judith Berkan, has a clear recollection of the Judge’s reaction to the situation. He
made it very clear that his orders were to be followed.
PSAMF ¶ 37. The DOJ denies all but the fact of the telephonic conference with Judge McAuliffe on or
prior to January 28, 2010. DRPSAMF ¶ 37. The DOJ objects to Attorney Berkan, who is counsel for
AUSA Márquez-Marín, assuming the role of witness. DRPSAMF ¶ 37.
The Court agrees with DOJ that the best evidence of what Judge McAuliffe said during the
telephone conference would be either a transcript or recording of the conference. Moreover, the Court
does not view Judge McAuliffe’s tone of voice to be relevant to the issues presented in this motion for
summary judgment. The Court pared back the language in additional paragraph thirty-seven.
38
In AUSA Márquez-Marín’s next additional paragraph thirty-eight, she accuses the DOJ of
having been “highly misleading” in a reference the DOJ made in its statement of material facts.
PSAMF ¶ 38. The DOJ objects. DRPSAMF ¶ 38. The Court agrees with the DOJ and did not include
AUSA Márquez-Marín’s additional paragraph thirty-eight on the ground that it is argument, not fact.
23
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reasonable grounds exist for noncompliance, sanctions will be
imposed. 39
DSMF ¶ 15; PRDSMF ¶ 15; PSAMF ¶ 39; DRPSAMF ¶ 39.
When AUSA Márquez-Marín’s return to office was imminent, a meeting was
held among all the managers in the USAO in San Juan. PSAMF ¶ 41; DRPSAMF
¶ 41. Supervisory Assistant United States Attorney (SUSA) Warren Vázquez, soon
to be AUSA Márquez-Marín’s supervisor, was present. PSAMF ¶ 41; DRPSAMF
¶ 41. At some point during the meeting, United States Attorney Rodríguez stated,
“Now that woman is coming” (“Ahora que viene esa mujer”). PSAMF ¶ 41; DRPSAMF
¶ 41. AUSA Márquez-Marín considered United States Attorney Rodríguez’s remark
about her return to have been derogatory. 40 PSAMF ¶ 41; DRPSAMF ¶ 41. Even
after successfully challenging her 2004 dismissal, AUSA Márquez-Marín was
hesitant to return to the USAO. 41 PSAMF ¶ 42; DRPSAMF ¶ 42. She knew about
In the DOJ’s paragraph fifteen, the DOJ quotes a portion of Judge McAuliffe’s January 28,
2010, order. DSMF ¶ 15. AUSA Márquez-Marín objects on the ground that the DOJ’s paragraph
fifteen contains only a small portion of the order. PRDSMF ¶ 15. In AUSA Márquez-Marín’s
additional paragraph thirty-nine, she quotes a larger section of the order. PSAMF ¶ 39. The DOJ
admits the additional paragraph. DRPSAMF ¶ 39.
In additional paragraph forty, AUSA Márquez-Marín states that it is a reasonable inference
from the language that Judge McAuliffe’s order was directed against the DOJ. PSAMF ¶ 40. The
DOJ objects. DRPSAMF ¶ 40. The Court agrees that AUSA Márquez-Marín’s paragraph forty is
argumentative. To avoid unnecessary controversy, the Court reproduced the order in full. See Stip.,
Attach. 1, Ex 11: Order at 93.
40
AUSA Márquez-Marín’s paragraph forty-one states as a fact that United States Attorney
Rodríguez’s remark was derogatory. PSAMF ¶ 41. The DOJ objects on the ground that whether it
was derogatory is speculative. DRPSAMF ¶ 41. The Court altered the paragraph to clarify that in
AUSA Márquez-Marín’s view, the United States Attorney’s remark was derogatory.
41
The DOJ interposes a qualified response, stating that the contention is at odds with AUSA
Márquez-Marín’s efforts to gain reinstatement. DRPSAMF ¶ 42. The Court disagrees. A person could
well fight for reinstatement and yet worry about how she will be received once she returns to work.
The DOJ objects to the reference to other EEO complaints. DRPSAMF ¶ 42. But the reference
to other EEO complaints does not make an assertion about their legitimacy. It is merely to show that
AUSA Márquez-Marín was worried about the climate in the USAO, regardless of the facts underlying
the EEO complaints or even whether AUSA Márquez-Marín was correct about their number.
39
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other EEO complaints employees had been filing, and she was concerned about a
climate of fear in the office. PSAMF ¶ 42; DRPSAMF ¶ 42.
For each pay grade, there is a “cap” (or maximum) in terms of salary. PSAMF
¶ 218; DRPSAMF ¶ 218.
As Officer López explained it, there is a table that
establishes years of experience . . .. It ranges from zero through nine.” PSAMF ¶ 218;
DRPSAMF ¶ 218. After that, she explained that when the attorney has nine or more
years of experience, “even though the attorney has nine years or twenty years, they
are on the same salary scale . . . . AD 29.” PSAMF ¶ 218; DPSAMF ¶ 218. If an
AUSA is at the “cap,” the only way he or she can obtain a greater salary is by
obtaining a supervisory position or being named a Senior Litigation Counsel (SLC),
which is not a supervisory position and has a greater salary. 42
PSAMF ¶ 219;
DRPSAMF ¶ 219. Over the years, AUSA Márquez-Marín has become aware of other
AUSAs who reached the cap in less than ten years. 43 PSAMF ¶ 223; DRPSAMF
¶ 223. It was not until year 2018 that AUSA Márquez-Marín was provided a salary
that she understands is about $100 less than the cap and by that time, she had been
an attorney for twenty-two years and had been in the USAO for seventeen years when
calculated in accordance with Judge McAuliffe’s orders. PSAMF ¶ 224; DRPSAMF
¶ 224.
AUSA Márquez-Marín’s additional paragraph two hundred and nineteen does not include the
reference to SLC. PSAMF ¶ 218. However, the record citation, namely page seventeen of the López
deposition, is not in the record. The DOJ admits the paragraph subject to the reference to SLC, so the
Court included both AUSA Márquez-Marín’s paragraph and the qualified response.
43
The DOJ qualifies its response to AUSA Márquez-Marín’s additional paragraph two hundred
and twenty-three, asserting that without more specificity, it cannot assess the veracity of the
statement. DRPSAMF ¶ 223. The Court overrules the DOJ’s qualified response because AUSA
Márquez-Marín is asserting what she believes to be true and the Court does not accept the statement
for the truth of the matter asserted.
42
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AUSA Márquez-Marín interviewed for two supervisory positions in 2013 for
which she was not selected. PSAMF ¶ 220; DRPSAMF ¶ 220. For one of these
positions, United States Attorney Rodríguez and her Special Counsel Jacqueline
Novas, an AUSA, interviewed her.
PSAMF ¶ 220; DRPSAMF ¶ 220.
AUSA
Márquez-Marín was asked whether she would be willing to work as a supervisor
without additional pay to which she responded in the negative. PSAMF ¶ 221;
DRPSAMF ¶ 221. During the same interview, AUSA Márquez-Marín questioned
what she understood was the disparate salary that she was receiving. PSAMF ¶ 222;
DRPSAMF ¶ 222. United States Attorney Rodríguez told her that she was earning
the same salary as other AUSAs with similar experience. PSAMF ¶ 222; DRPSAMF
¶ 222. AUSA Márquez-Marín stated that she knew of no other attorneys who had
the same or less pay than she did. 44 PSAMF ¶ 222; DRPSAMF ¶ 222. During the
interview, in an email dated May 14, 2014, or both, AUSA Márquez-Marín asked
United States Attorney Rodríguez to take a fresh look at the matter. PSAMF ¶ 222;
DRPSAMF ¶ 222.
The DOJ admits the first two sentences of AUSA Márquez-Marín’s additional paragraph two
hundred and twenty-two, but it denies that the cited authority supports the last two statements.
DRPSAMF ¶ 222. The DOJ says that AUSA Márquez-Marín made these statements in an email dated
May 14, 2014. DRPSAMF ¶ 222. The Court reviewed the cited record and notes that AUSA MárquezMarín’s May 14, 2014, email states that she had “already brought this matter to [United States
Attorney Rodríguez’s] direct attention.” PSAMF ¶ 222 (citing PSAMF, Attach. 4, Ex. GG, Emails from
Carmen Márquez to Rosa Emilia Rodríguez, May 14, 2014 at 43-44). Viewing the evidence in the light
most favorable to AUSA Márquez-Marín, the Court included the entire paragraph because AUSA
Márquez-Marín may have been referring to statements she made during the interview.
44
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6.
Carmen Márquez-Marín’s Work in the United States
Attorney’s Office: 2008-2014
a.
Violent Crimes Unit: March 17, 2008, to July 5, 2011
Upon her return to work on March 17, 2008, AUSA Márquez-Marín was
assigned to the Violent Crimes Unit in the USAO’s Criminal Division. Stip. ¶ 23;
DSMF ¶ 17; PRDSMF ¶ 17. By the time AUSA Márquez-Marín was reinstated, the
management team at the USAO was United States Attorney Rodríguez, FAUSA
Domínguez, and Special Counsel Novas. 45 PSAMF ¶ 43; DRPSAMF ¶ 43. These were
the three people who received AUSA Márquez-Marín when she returned.
PSAMF
¶ 43; DRPSAMF ¶ 43. The Chief of the Criminal Division was José Ruiz. PSAMF
¶ 43; DRPSAMF ¶ 43. Although AUSA Márquez-Marín already knew United States
Attorney Rodríguez, who had played a key role in her earlier dismissal, FAUSA
Domínguez, and Chief Ruiz, she did not know Special Counsel Novas at that time.
PSAMF ¶ 44; DRPSAMF ¶ 44.
AUSA Márquez-Marín’s first-line supervisor was SUSA Vázquez. Stip. ¶ 23;
DSMF ¶ 17; PRDSMF ¶ 17. On April 2, 2008, José Pizarro, then the Deputy Chief of
the USAO’s Civil Division, emailed all USAO employees to congratulate AUSA
Ginette Milánes for obtaining summary judgment in an employment discrimination
suit where the opposing party was represented by Attorney Berkan. Stip. ¶ 24;
DSMF ¶ 18; PRDSMF ¶ 18; PSAMF ¶ 45; DRPSAMF ¶ 45. AUSA Márquez-Marín
The DOJ interposes a qualified response, asserting that these three people did not constitute
the entire management team at the USAO. DRPSAMF ¶ 43. The Court overrules DOJ’s qualification
because AUSA Márquez-Marín’s additional paragraph forty-three does not state or imply that these
three individuals were the entire management team.
45
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was surprised by the email. PSAMF ¶ 46; DRPSAMF ¶ 46. Although congratulatory
emails are often sent in the USAO, it is extremely rare to see such emails specifically
mention opposing counsel. 46 PSAMF ¶ 46; DRPSAMF ¶ 46; DSMF ¶ 18; PRDSMF
¶ 18. The email did not mention AUSA Márquez-Marín or her prior case. Stip. ¶ 24;
DSMF ¶ 18; PRDSMF ¶ 18. It was well-known in the USAO that Attorney Berkan
had represented AUSA Márquez-Marín in her successful jury trial against the DOJ
and regarding the reinstatement order which was being enforced at the time of the
email. 47 PSAMF ¶ 47; DRPSAMF ¶ 47.
b.
The Death Penalty Controversy
AUSA Márquez-Marín claims that in 2008, within a month of her return to
work at the USAO and her assignment to the Violent Crimes Unit, she was assigned
to assist SLC Antonio Bazán with two death penalty cases. 48 Stip. ¶ 25; PSAMF
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph
forty-six, contesting whether it was in fact rare for the USAO to mention opposing counsel in a
congratulatory email. DRPSAMF ¶ 46. The Court rejects the DOJ’s qualified response because it is
required to view contested facts in the light most favorable to AUSA Márquez-Marín.
The DOJ posits in paragraph eighteen that Deputy Chief Pizarro had emailed all USAO
employees with news of the victory, and AUSA Márquez-Marín adds information about the rarity of
such an email mentioning the opposing counsel. DSMF ¶ 18; PRDSMF ¶ 18. To view contested
matters in the light most favorable to AUSA Márquez-Marín, the Court included that asserted fact.
47
The DOJ denies AUSA Márquez-Marín’s additional paragraph forty-seven on the ground that
AUSA Márquez-Marín’s statement that something was well known does not make it so. DRPSAMF
¶ 47. For support, the DOJ cites among other authority Cruz v. Dart, No. 12-CV-6665, 2017 US. Dist.
LEXIS 37697, at *3, 2017 WL 1021992, at *1 (N.D. Ill. Mar. 16. 2017), for the proposition that it is not
well known whether priapism is a reaction to certain medications. DRPSAMF ¶ 47. Although the
Court acknowledges that a broader statement on a more esoteric matter, such as whether priapism is
a well-known side-effect to certain medications, would not be admissible, here, it is only common sense
that the fact that an AUSA sued the DOJ and was in part victorious at a jury trial would be common
knowledge within the USAO, including the name of the lawyer who successfully represented the
AUSA. The Court rejects the DOJ’s denial.
48
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph
forty-nine, questioning whether AUSA Márquez-Marín was assigned more than one death penalty
case. DRPSAMF ¶ 49. Whether AUSA Márquez-Marín was assigned more than one death penalty
case is something within AUSA Márquez-Marín’s personal knowledge and the Court is required to
46
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¶¶ 48-49; DRPSAMF ¶¶ 48-49; DSMF ¶ 19; PSDSMF ¶ 19. AUSA Márquez-Marín
also claims that during the same period, two or three death penalty cases were
directly assigned to her. Stip. ¶ 25. SLC Bazán was not in AUSA Márquez-Marín’s
chain of command. Stip. ¶ 26.
18 U.S.C. § 3597 provides:
No employee of . . . the United States Department of Justice . . . shall be
required, as a condition of employment or contractual obligation, to be
in attendance at or to participate in any [death penalty] prosecution or
execution under this section if such participation is contrary to the moral
or religious convictions of the employee.
In this subsection,
“participation in executions” includes personal preparation of the
condemned individual and the apparatus used for execution and
supervision of the activities of other personnel in carrying out such
activities.
Stip. ¶ 27; PSAMF ¶ 59; DRPSAMF ¶ 59.
This assignment was made despite management having knowledge that AUSA
Márquez-Marín had a religious and moral opposition to the death penalty. 49 PSAMF
¶ 50; DRPSAMF ¶ 50. United States Attorney Rodríguez, who at the time of AUSA
Márquez-Marín’s application was the EAUSA, was one of the interviewers when
view contested factual matters in the light most favorable to AUSA Márquez-Marín. The Court rejects
the DOJ’s qualified response.
The DOJ also interposes a qualified response to AUSA Márquez-Marín’s additional paragraph
forty-eight, stating that the current name is the Violent Crimes Unit, not the Violent Crimes Division.
DRPSAMF ¶ 48. The Court agrees and altered the paragraph to say unit rather than division.
49
The DOJ admits that when she was interviewed for an AUSA position, AUSA Márquez-Marín
expressed her view that she was opposed to the death penalty. DRPSAMF ¶ 50. However, the DOJ
denies that either United States Attorney Rodríguez or SUSA Vázquez was aware of her opposition to
the death penalty. DRPSAMF ¶ 50. The Court declines to accept the DOJ’s denial because AUSA
Márquez-Marín’s additional paragraph fifty does not claim that either United States Attorney
Rodríguez or SUSA Vázquez was currently aware of her opposition. The paragraph only claims that
management knew, not even when management knew, and as AUSA Márquez-Marín voiced her
opposition during her interview, the Court finds that there is a sufficient basis for concluding that
management knew, looking at the asserted fact in the light most favorable to AUSA Márquez-Marín’s.
At the same time, the Court omitted the adjective “full” because there is no basis to conclude that
management had full knowledge of her opposition.
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AUSA Márquez-Marín was interviewed for the AUSA job. PSAMF ¶ 51; DRPSAMF
¶ 51. In 2001, then EAUSA Rodríguez recommended that AUSA Márquez-Marín be
hired. PSAMF ¶ 52; DRPSAMF ¶ 52. She did so despite knowing that AUSA
Márquez-Marín was opposed to the death penalty. 50 PSAMF ¶ 52; DRPSAMF ¶ 52.
Around early April 2008, in one of the cases to which AUSA Márquez-Marín was
assigned, the defendant(s) were eligible for the death penalty. Stip. ¶ 28. AUSA
Márquez-Marín informed SUSA Vázquez that she could not be assigned death
penalty cases due to her religious and moral objections to the same. 51 PSAMF ¶ 53;
DRPSAMF ¶ 53; DSMF ¶ 19; PRDSMF ¶ 19. 52
SUSA Vázquez testified that he learned about AUSA Márquez-Marín’s
opposition to the death penalty “shortly after this assignment” (the death penalty
case) was made to her. PSAMF ¶ 55; DRPSAMF ¶ 55. He admits that AUSA
Márquez-Marín approached him on April 10, 2008, (barely a month after she had
returned to the USAO) and told him of her opposition. PSAMF ¶ 55; DRPSAMF ¶ 55.
The Court struck the assertion that then EOUSA Rodríguez knew “full well,” PSAMF ¶ 52, as
argumentative.
51
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph fiftythree, noting that AUSA Márquez-Marín told SUSA Vázquez about her opposition only after she was
assigned a death penalty case. DRPSAMF ¶ 53. The Court declines to include the DOJ’s qualification
because AUSA Márquez-Marín’s additional paragraph fifty-three does not allege when she told SUSA
Vázquez.
52
In her additional facts, AUSA Márquez-Marín asserts that it can be “reasonably inferred” that
United States Attorney Rodríguez either instructed the Violent Crimes Unit supervisor to assign
AUSA Márquez-Marín a death penalty case or negligently failed to inform AUSA Márquez-Marín’s
supervisor of AUSA Márquez-Marín’s religious opposition. PSAMF ¶ 54. The DOJ denies this
assertion and objects. DRPSAMF ¶ 54.
Although the Court agrees with the DOJ that this assertion, as framed, is more argument than
fact, later in the AUSA Márquez-Marín’s additional facts paragraph sixty-four, AUSA Márquez-Marín
asserts, as confirmed in her affidavit, that when asked why he had assigned her a death penalty case
when her opposition to the death penalty was well-known, AUSA Vázquez told AUSA Márquez-Marín
that United States Attorney Rodríguez instructed him to assign the death penalty case to AUSA
Márquez-Marín. See PSAMF ¶ 64. This assertion, therefore, is better as direct evidence than as an
inference and the Court declines to place this inference in the statement of facts.
50
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AUSA Márquez-Marín’s approach to SUSA Vázquez is memorialized in an email
which SUSA Vázquez sent on April 10, 2008, 53 to United States Attorney Rodríguez
and other members of upper management, including FAUSA Domínguez and
Criminal Division Chief Ruiz. PSAMF ¶ 56; DRPSAMF ¶ 56. SUSA Vázquez stated
that AUSA Márquez-Marín had asked him “if she could be relieved from prosecuting
[the death penalty] case, due to her religious conviction and because she was against
the imposition of the death penalty. PSAMF ¶ 56 (alteration in original); DRPSAMF
¶ 56. Instead of immediately removing AUSA Márquez-Marín from the death penalty
case, SUSA Vázquez responded to the newly reinstated AUSA Márquez-Marín by
telling her that he could not relieve her from prosecuting the case “because as sworn
[AUSAs] we all had the duty to prosecute every type of case under Federal law and
that . . . the prosecution of this type of cases [sic] is part of this office as well as the
Department’s mission.” 54 PSAMF ¶ 60 (alteration in original); DRPSAMF ¶ 60.
In the course of the discussion of this issue, AUSA Márquez-Marín asked SUSA
Vázquez why he was doing this (the death penalty assignment), noting that she had
never had such cases before and her opposition to the death penalty was well known
in the office. PSAMF ¶ 63; DRPSAMF ¶ 63. She told him she had just come back to
the office and that this was placing her in a difficult position. 55
PSAMF ¶ 63;
Both AUSA Márquez-Marín and the DOJ refer to the Vázquez email as dated April 10, 2018.
PSAMF ¶¶ 56-58 (emphasis added); DRPSAMF ¶¶ 56-58. This is incorrect. The date is 2008. See
PSAMF, Attach. 2, Ex. L: April 10, 2008 Email Chain at 64.
54
The DOJ admits this additional fact but adds facts in response. DRPSAMF ¶ 60. As the DOJ’s
added facts do not contradict the AUSA Márquez-Marín’s added fact and the Court is required to view
the facts in the light most favorable to AUSA Márquez-Marín, the Court did not include the DOJ’s
added facts.
55
The DOJ admits that AUSA Márquez-Marín told SUSA Vázquez that her opposition to the
death penalty was well-known in the USAO. DRPSAMF ¶ 63. But the DOJ denies the remainder of
53
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DRPSAMF ¶ 63. SUSA Vázquez replied that he was following instructions from
United States Attorney Rodríguez. 56 PSAMF ¶ 64; DRPSAMF ¶ 64. This was the
first of several times AUSA Márquez-Marín confronted SUSA Vázquez about adverse
actions being taken against her over the years he supervised her after she returned
to the USAO and on several occasions, SUSA Vázquez told her he was following
instructions “from above” (“de arriba”). 57 PSAMF ¶ 65; DRPSAMF ¶ 65.
SLC Bazán provided AUSA Márquez-Marín with samples of written material
to use in prosecuting death penalty cases. 58 PSAMF ¶ 57; DRPSAMF ¶ 57. AUSA
additional paragraph sixty-three on the ground that “[d]uring her deposition, [AUSA] Márquez[Marín] testified that she told [SUSA] Vázquez only that her opposition to the death penalty was wellknown in the office.” DRPSAMF ¶ 63 (citing Decl. of Kenneth Shaitelman, Attach. 2, Ex. 13: Continued
Dep. of Carmen Márquez at 174 (ECF No. 112)). The DOJ cites Morales v. A.C. Orssleff’s EFTF, 246
F.3d 32, 35 (1st Cir. 2001), and Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.
1994), for the proposition that a deponent cannot create a material fact by later contradicting, without
explanation, a clear answer to an unambiguous question.
The Court rejects the DOJ’s qualified response. A review of page one hundred and seventyfour of AUSA Márquez-Marín’s cited deposition fails to reveal that she was asked whether her
response was the only thing she said to SUSA Vázquez on the reason for the death penalty assignment.
The asserted contradiction, in the Court’s view, is not a contradiction at all.
56
The DOJ denies in part and qualifies in part AUSA Márquez-Marín’s additional paragraph
sixty-four. DRPSAMF ¶ 64. The DOJ qualifies its response because it asserts that there is no evidence
United States Attorney Rodríguez acted for discriminatory or retaliatory reasons. DRPSAMF ¶ 64.
The Court overrules this qualified response as frivolous. AUSA Márquez-Marín’s additional
paragraph sixty-four does not mention United States Attorney Rodríguez’s motive. See PSAMF ¶ 64.
The DOJ denies the fact because SUSA Vázquez denied it. DRPSAMF ¶ 64. But the Court is
required to view conflicting evidence in the light most favorable to AUSA Márquez-Marín. The Court
rejects the DOJ’s denial.
57
The DOJ admits in part and denies in part this additional statement. DRPSAMF ¶ 65. The
DOJ admits only that during the period SUSA Vázquez supervised AUSA Márquez-Marín, she
questioned him on various occasions about supervisory decisions, but she did not complain about
discrimination due to her disabilities or about retaliation. DPRSAMF ¶ 65. The Court overrules this
qualified response because AUSA Márquez-Marín does not allege in this additional paragraph that
she complained about discrimination or retaliation.
The DOJ denies the remainder of the paragraph because it is too vague and is lacking in
specificity. DRPSAMF ¶ 64. The Court disagrees and notes that the statement may lead to crossexamination but this does not make the paragraph inadmissible for purposes of summary judgment,
especially when viewing the facts in the light most favorable to AUSA Márquez-Marín.
58
The DOJ interposes a qualified response, acknowledging that SUSA Vázquez’s April 10, 2008,
email stated that SLC Bazán did so, but questioning whether it was true. DRPSAMF ¶ 57. The Court
declines to accept the DOJ’s quibble.
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Márquez-Marín also asked SLC Bazán to have her relieved from the case. 59 PSAMF
¶ 58; DRPSAMF ¶ 58.
AUSA Márquez-Marín had to affirmatively locate the policies and code sections
protecting her rights with respect to this matter, so as to present them to
management. 60 PSAMF ¶ 61; DRPSAMF ¶ 61. Notwithstanding the fact that AUSA
Márquez-Marín was plainly correct in her assertions regarding the impropriety of
assigning her a death penalty case, the matter went up the supervisory chain and to
Special Counsel Novas. 61 PSAMF ¶ 62; DRPSAMF ¶ 62. United States Attorney
Rodríguez forwarded the Vázquez email to Special Counsel Novas later that same
day. PSAMF ¶ 62; DRPSAMF ¶ 62. The following day, Special Counsel Novas
forwarded the email to Neil White, an attorney in the EOUSA.
PSAMF ¶ 62;
DRPSAMF ¶ 62. By the afternoon of April 11, the email had made its way to yet
another attorney in the EOUSA. PSAMF ¶ 62; DRPSAMF ¶ 62.
Then Chief of the Appellate Division Nelson Pérez testified:
But then they assigned her a death penalty case, when [AUSA]
Márquez[-Marín] does not really believe in the death penalty, and she
thought that was a way of harassing her . . .. She said, “no, I cannot
take these cases . . ..[”]
The DOJ interposes a qualified response, acknowledging that SUSA Vázquez’s April 10, 2008,
email stated that SLC Bazán did so, but questioning whether it was true. DRPSAMF ¶ 58. The Court
declines to accept the DOJ’s quibble.
60
The DOJ admits AUSA Márquez-Marín’s additional paragraph sixty-one but denies any causal
connection between AUSA Márquez-Marín’s research and the management response. DRPSAMF
¶ 61. As paragraph sixty-one does not assert a causal connection, the Court does not accept the DOJ’s
qualified response.
61
The DOJ admits the sequence of events in AUSA Márquez-Marín’s additional paragraph sixtytwo. DRPSAMF ¶ 62. However, the DOJ objects to the term, “plainly correct.” DRPSAMF ¶ 62. The
Court overrules the DOJ’s objection. Although the “plainly” could be considered argument, the Court
views it plainly correct that under 18 U.S.C. § 3597, an AUSA employee may not be required, as a
condition of employment or contractual obligation, to participate in any death penalty prosecution if
such participation is contrary to the AUSA’s moral or religious convictions.
59
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The situation was that she protested the fact that she, who is opposed
to the death penalty, was assigned to handle a death penalty case. 62
PSAMF ¶ 66; DRPSAMF ¶ 66. When Chief Pérez was asked whether he knew “why
she was assigned this case,” he responded:
They knew that she had opposed the death penalty. You reach your own
conclusions . . .. I think it was public, because during the interviews [to
be hired as an AUSA], . . . if one is opposed to the death penalty, one
voices that out. And she voiced that out. 63
PSAMF ¶ 67 (emphasis omitted); DRPSAMF ¶ 67. After USAO management looked
into the matter, which was also after AUSA Márquez-Marín researched the policies,
it removed AUSA Márquez-Marín from death penalty cases and she was not assigned
any other death penalty cases until 2013, when she was assigned a new supervisor.
DSMF ¶ 19; PRDSMF ¶ 19; PSAMF ¶ 61; DRPSAMF ¶ 61.
c.
The Canales Case
About a month after the death penalty controversy, in May or June 2008,
SUSA Vázquez assigned AUSA Márquez-Marín to assist another AUSA, Ilianys
Rivera, with a multi-defendant case, United States v. Pagan-Narvaez, No. 3:06-cr-
The DOJ admits Chief Pérez made the quoted statements, but it denies the statement about
his roles, namely that Chief Pérez was “a member of Management and the Chief of Appeals for the
[USAO] in Puerto Rico for some two decades . . ..” See PSAMF ¶ 66; DRPSAMF ¶ 66. The Court notes
that in its memorandum in support of the motion for summary judgment, the DOJ identifies Nelson
Pérez as the Chief of the Appellate Division. Def.’s Mot. at xv. The Court agrees that there is no
evidence in the cited portion of Chief Pérez’s testimony that confirms he was part of management or
how long he held the post of Appellate Chief, and the Court therefore excludes that portion of
paragraph sixty-six from the statement of facts.
63
The DOJ admits that Chief Pérez made these statements but asserts his views were
speculative. DRPSAMF ¶ 67. The Court disagrees and includes Chief Pérez’s testimony.
AUSA Márquez-Marín’s additional paragraph sixty-eight sets forth the allegations in her
Complaint. PSAMF ¶ 68. In contravention of Local Rule 56(c), paragraph sixty-eight contains no
record citation. D.P.R. LOC. R. 56(c) (“The opposing statement may contain in a separate section
additional facts, set forth in separate numbered paragraphs and supported by a record citation as
required by subsection (e) of this rule”). In view of the absence of any record citation, the Court did
not include additional paragraph sixty-eight in its factual recitation.
62
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00299 (D.P.R.), known informally as the Canales case. Stip. ¶ 29; PSAMF ¶ 69;
DRPSAMF ¶ 69; DSMF ¶ 20; PRDSMF ¶ 20.
AUSA Márquez-Marín formally
submitted her appearance on June 10, 2018. PSAMF ¶ 70; DRPSAMF ¶ 70. This
was a major multi-defendant case. 64 PSAMF ¶ 71; DRPSAMF ¶ 71. The case had
previously been assigned to AUSA Rivera, a new AUSA, who had little prior criminal
experience, having come to the office recently from a law firm where she had done
civil cases. PSAMF ¶ 72; DRPSAMF ¶ 72. The case, filed in 2006, was set for trial
shortly after the assignment was given to AUSA Márquez-Marín. 65 PRSAMF ¶ 73;
DRPSAMF ¶ 73.
The primary witness before the Grand Jury had been a cooperating witness
who allegedly was an owner of a drug point (“Punta de Droga”—drug distribution
place) at one of the major residential housing projects in San Juan. PSAMF ¶ 74;
DRPSAMF ¶ 74. AUSA Márquez-Marín contacted the U.S. Marshal Service to bring
this witness to the jurisdiction and for AUSA Márquez-Marín to interview him in
preparation for trial.
PSAMF ¶ 75; DRPSAMF ¶ 75.
In the interview, AUSA
Márquez-Marín discovered that this person had provided false testimony to the
Grand Jury, a fact which made the prosecution of the case virtually impossible due
to lack of evidence. PSAMF ¶ 76; DRPSAMF ¶ 76. AUSA Márquez-Marín was
greatly concerned about this, since she had been assigned an extraordinarily difficult
The DOJ quibbles about whether the Court should accept AUSA Márquez-Marín’s view that
the Canales case was a “major” case. DRPSAMF ¶ 71. The Court overrules the DOJ’s denial because
the Court is required to view contested evidence in the light most favorable to AUSA Márquez-Marín.
65
The DOJ interposes a qualified objection on the ground that AUSA Márquez-Marín’s
additional paragraph seventy-three is ambiguous. DRPSAMF ¶ 73. The Court agrees that the
statement is ambiguous but does not find that the ambiguity is meaningful, so the Court rejects the
qualification.
64
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case to help out an inexperienced prosecutor and the evidence was tainted. 66 PSAMF
¶ 77; DRPSAMF ¶ 77. Upon discovering this, AUSA Márquez-Marín notified the
court that she would be presenting a superseding indictment with additional evidence
and the court postponed the trial date. PSAMF ¶ 78; DRPSAMF ¶ 78. For more than
a year, AUSA Márquez-Marín’s work on the case was spent on coordination of the reinvestigation of the entire case, identifying and preparing witnesses (since there was
none who could offer admissible trial evidence), presenting a superseding indictment
to the Grand Jury, and preparing the case for trial. PSAMF ¶ 79; DRPSAMF ¶ 79.
The Canales case went to trial in the spring of 2010 and lasted approximately two
months, resulting in the convictions of four of the “leaders,” who were sentenced to
lengthy prison terms. PSAMF ¶ 81; DRPSAMF ¶ 81.
AUSA Rivera was very appreciative of AUSA Márquez-Marín and her work on
the Canales case. PSAMF ¶ 82; DRPSAMF ¶ 82. In an email on April 14, 2010, 67
about another matter (the Loiza case), AUSA Rivera wrote of the “outstanding and
extraordinary work accomplished by [AUSA Márquez-Marín] as co-counsel, to
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph
seventy-seven, admitting the general content of paragraph seventy-seven but objecting to some of the
adjectives and adverbs as argumentative. DRPSAMF ¶ 77. The Court agrees with the DOJ and toned
down the language without altering the overall content.
In the AUSA Márquez-Marín’s additional paragraph eighty, she proposes that it is a
reasonable inference that the USAO assigned this case to AUSA Márquez-Marín to set her up for
failure by assigning a case then set for trial with a principle witness who was to offer perjured
testimony and an AUSA who was inexperienced. PSAMF ¶ 80. The DOJ objects to the inferences.
DRPSAMF ¶ 80. The Court will not consider AUSA Márquez-Marín’s additional paragraph eighty
because she does not provide a record citation for the paragraph in violation of Local Rule 56(c). Also,
based on this record, the Court is not able to make the inferences that AUSA Márquez-Marín suggests
should be made.
67
In the DOJ’s response, it corrects the April 15, 2010, date in the AUSA Márquez-Marín’s
additional paragraph eighty-two to April 14, 2010. DRPSAMF ¶ 82. Consistent with the record, the
Court inserted the correct date.
66
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organize and secure extensive documentary evidence and reliable CW’s, interview
more than a hundred witness [sic], and supersede an indictment based, in part, on
perjured evidence . . ..” PSAMF ¶ 82 (some alterations in original); DRPSAMF ¶ 82.
On June 11, 2010, SUSA Vázquez sent an email to all USAO employees in the office
congratulating AUSAs Márquez-Marín and Rivera for the guilty verdict and “for their
excellent work in the re-investigation, trial preparation and trial prosecution of the
Canales Drug Trafficking Gang,” making reference to the “almost two (2) months of
trial preceded by a grueling three year process of re-investigation and trial
preparation.” PSAMF ¶ 83; DRPSAMF ¶ 83; DSMF ¶ 25; PRDSMF ¶ 25. Later in
December 2010, when the first defendant in the case was sentenced, SUSA Vázquez
and FAUSA Domínguez also sent congratulatory emails. DSMF ¶ 25; PRDSMF ¶ 25.
AUSAs Márquez-Marín and Rivera received a Director’s Award for their “Superior
Performance as an Assistant United States Attorney, traveling to Washington to
receive the award.” PSAMF ¶ 84; DRPSAMF ¶ 84.
In 2009, the USAO was handling a high-profile case involving the then
governor of Puerto Rico, Anibal Acevedo-Vilá. Stip. ¶ 30; DSMF ¶ 21; PRDSMF ¶ 21.
FAUSA Domínguez was the lead prosecutor. Stip. ¶ 30; DSMF ¶ 21; PRDSMF ¶ 21.
d.
The Loiza Case
In June 2008, AUSA Márquez-Marín met with a DEA agent to discuss a matter
he was investigating in the town of Loiza. PSAMF ¶ 85; DRPSAMF ¶ 85. She was
informed that other prosecutors, including the head of the Strike Force, had
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demonstrated no interest in the area. 68 PSAMF ¶ 86; DRPSAMF ¶ 86. AUSA
Márquez-Marín, however, thought that the matter was worth pursuing, and she
requested and obtained permission to open up an investigation.
PSAMF ¶ 87;
DRPSAMF ¶ 87. There was not even a cooperating witness at the time. PSAMF
¶ 87; DRPSAMF ¶ 87.
AUSA Rivera, who by that time was already working with AUSA MárquezMarín on the Canales case, joined the effort. PSAMF ¶ 88; DRPSAMF ¶ 88. AUSA
Rivera stated that, having worked with AUSA Márquez-Marín on the Canales case,
she “felt that working Loiza . . . with her was the right thing to do.” PSAMF ¶ 88;
DRPSAMF ¶ 88. After about a year of intense work, the case was ready for opening
a grand jury investigation by June 2009. PSAMF ¶ 89; DRPSAMF ¶ 89. It was not
until early 2010 that AUSAs Márquez-Marín and Rivera, against very tough odds,
were able to secure the cooperation of a cooperating witness.
PSAMF ¶ 90;
DRPSAMF ¶ 90.
On April 13, 2010, as AUSAs Márquez-Marín and Rivera were preparing for
trial in the Canales case, SUSA Vázquez emailed them and told them that the Loiza
The DOJ interposes a qualified response, stating that earlier AUSA Márquez-Marín had stated
that only one individual, Special Assistant United States Attorney (SAUSA) and former United States
Attorney Guillermo Gil, expressed no interest in the case. DRPSAMF ¶ 86. Furthermore, the DOJ
claims that whatever SAUSA Gil said is hearsay. DRPSAMF ¶ 86.
The Court overrules the DOJ’s hearsay objection. AUSA Márquez-Marín mentioned SAUSA
Gil’s comment when protesting her reassignment from the Loiza case. See PSAMF ¶ 92. Therefore,
the statement is not offered for the truth of what SAUSA Gil stated but to explain the basis for AUSA
Márquez-Marín’s objection to the reassignment.
In accordance with the DOJ’s qualified response, the Court corrected the word “case” in AUSA
Márquez-Marín’s additional paragraph eighty-six and replaced it with “area,” the word in AUSA
Márquez-Marín’s April 2010 email.
Regarding the DOJ’s objection that SUSA Gil was the only federal prosecutor who expressed
a lack of interest in the case, the Court overrules the DOJ objection. In indicating a lack of interest in
an area, it is reasonable to infer that the supervisor was not speaking just for himself.
68
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investigation would be reassigned to the Strike Force (whose Chief had previously
indicated no interest in the case). 69 Stip. ¶ 31; PSAMF ¶ 91; DRPSAMF ¶ 91; DSMF
¶ 23; PRDSMF ¶ 23. SUSA Vázquez wrote that the decision was based on their
already heavy caseloads, as he was able to observe during his case reviews. Stip.
¶ 31. SUSA Vázquez extended his gratitude and appreciation for “the great amount
of time and good work” that they had dedicated to the investigation. Stip. ¶ 31.
AUSAs Márquez-Marín and Rivera, however, protested. Stip. ¶ 31; DSMF
¶ 23; PRDSMF ¶ 23. AUSA Márquez-Marín was stunned by the decision, made
without consulting her or AUSA Rivera, since she and AUSA Rivera had been the
ones to take a very difficult investigation regarding a case no one on the Strike Force
had wanted. 70 PSAMF ¶ 92; DRPSAMF ¶ 92.
The DOJ interposes a partially qualified response, asserting that the Loiza case was not
assigned to the Chief of the Strike Force, but to AUSA Mariana Bauza, who was a member of the
Strike Force at the time. DRPSAMF ¶ 91. The Court overrules the DOJ’s qualified response. AUSA
Márquez-Marín’s paragraph ninety-one does not state that the Loiza case was reassigned to the Chief;
it states that it was reassigned to the Strike Force whose Chief previously indicated no interest in the
area.
AUSA Márquez-Marín interposes a qualified response to the DOJ’s paragraph twenty-three.
PRDSMF ¶ 23. The qualification consists of additional information that AUSA Márquez-Marín
includes in her additional facts and that does not contradict the DOJ’s paragraph, so the Court rejects
the qualification.
70
The DOJ interposes a qualified response. DRPSAMF ¶ 92. First, the DOJ says that it is
unclear how AUSA Márquez-Marín knows that AUSA Rivera was not consulted. DRPSAMF ¶ 92.
The Court overrules that qualification because AUSAs Márquez-Marín and Rivera were working
together at the time and it is reasonable to infer that AUSA Márquez-Marín would have known if
AUSA Rivera had been consulted before the reassignment. The DOJ also points out that there had
been some discussion with AUSAs Márquez-Marín and Rivera before reassignment. DRPSAMF ¶ 92.
The Court rejects the DOJ’s qualified response on this point because it is required to view contested
facts in the light most favorable to AUSA Márquez-Marín. Third, the DOJ denies that AUSA MárquezMarín established that no one else in the USAO had wanted the Loiza investigation. DRPSAMF ¶ 92.
The Court agrees that the record does not establish that no one in the USAO wanted the Loiza
investigation but concludes that the record does establish that no one in the Strike Force had wanted
the Loiza case. The Court slightly altered AUSA Márquez-Marín’s additional paragraph ninety-two
to reflect this difference.
69
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In an email sent to management after 9 p.m. on April 14, 2010, AUSA Rivera
objected to the reassignment. PSAMF ¶ 93; DRPSAMF ¶ 93. She stated among other
things that AUSA Márquez-Marín had spent many hours “sorting through the
intelligence evidence . . . and securing an excellent [cooperating witness], that helped
us identify several [Drug Trafficking Organizations] . . . and the hierarchy of
individuals associated with each one. In addition, [AUSA Márquez-Marín] indicted
recently one of the main leaders . . .. [She] met with the case agent and helped him
organize a power point presentation for the GJ . . ..” PSAMF ¶ 92 (some alterations
in original); DRPSAMF ¶ 93. AUSA Rivera also noted that “[AUSA Márquez-Marín]
knows the case and [that she and AUSA Márquez-Marín] were working diligently to
secure a solid indictment.” PSAMF ¶ 94 (some alterations in original); DRPSAMF
¶ 94. She said the case was “a very important decision in a very important case . . ..
[W]ith all the work already accomplished it is hard to comprehend how a new AUSA
with absolutely no knowledge about the investigation will somehow more efficiently
and expeditiously secure the end goal: a solid indictment.” PSAMF ¶ 94 (alterations
in original); DRPSAMF ¶ 94. 71
After AUSAs Márquez-Marín and Rivera protested and had various emails and
a meeting with United States Attorney Rodríguez, although the case had briefly been
assigned to AUSA Bauza, the decision to take the Loiza case away from them was
reversed. PSAMF ¶ 96; DRPSAMF ¶ 96; DSMF ¶ 23; PRDSMF ¶ 23. United States
In her additional paragraph ninety-five, AUSA Márquez-Marín asserts that it is a reasonable
inference management removed AUSA Rivera and her from Loiza not based on legitimate reasons.
PSAMF ¶ 95. The DOJ denies this paragraph. DRPSAMF ¶ 95. The Court declines to make such an
inference. It is not supported by a record citation as required by Local Rule 56(c) and is speculative.
71
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Attorney Rodríguez decided that the case would remain with AUSA Márquez-Marín
and AUSA Rivera. DSMF ¶ 23; PRDSMF ¶ 23. In October 2010, a federal grand jury
indicted seventy-five defendants based on the work performed by the investigative
agencies and AUSAs Rivera and Márquez-Marín. PSAMF ¶ 97; DRPSAMF ¶ 97.
e.
The Lloréns Torres Case
At some point prior to June 2010, a similar discussion took place regarding the
removal of AUSAs Márquez-Marín and Rivera from another high-profile
investigation involving the Lloréns Torres housing project. 72 Stip. ¶ 32; PSAMF ¶ 98;
DRPSAMF ¶ 98; DSMF ¶ 24; PRDSMF ¶ 24. Once again, AUSA Márquez-Marín had
to lodge a protest to be able to continue working on a case on which she had dedicated
months of work and to receive proper credit for her work. PSAMF ¶ 98; DRPSAMF
¶ 98. Thus, the result was the same: After AUSAs Márquez-Marín and Rivera
protested, they were allowed to continue working on the investigation. DSMF ¶ 24;
PRDSMF ¶ 24.
f.
The USAO Mission Statement
In February 2010, United States Attorney Rodríguez emailed two of her
supervising attorneys, FAUSA Domínguez and SUSA Mike Fernández. 73 DSMF
¶ 22; PRDSMF ¶ 22. The subject of the email was “Staff Meeting.” DSMF ¶ 22;
PRDSMF ¶ 22.
United States Attorney Rodríguez stated, “Remember my
The DOJ denies AUSA Márquez-Marín’s description of the Lloréns Torres investigation as
“high-profile.” DRPSAMF ¶ 98. The Court rejects the DOJ’s denial since it is required to view
contested facts in the light most favorable to AUSA Márquez-Marín.
73
AUSA Márquez-Marín denies the last sentence of the DOJ’s paragraph twenty-two, which
states that FAUSA Domínguez reported back to her that she had complied. DSMF ¶ 22; PRDSMF
¶ 22. The Court is unclear why this is so objectionable, but because it is required to view disputed
facts in the light most favorable to the AUSA Márquez-Marín, it did not include the last sentence.
72
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instructions to give a copy of the Office’s Mission Statement at the meeting on the
11th.” DSMF ¶ 22; PRDSMF ¶ 22. She also instructed them to advise all employees
against gossip in the office and the consequences of violating office policy. DSMF
¶ 22; PRDSMF ¶ 22.
In February 2011, United States Attorney Rodríguez issued a new mission
statement for the office. 74 Stip. ¶ 33; DSMF ¶ 26; PRDSMF ¶ 26. It stated in part:
We will treat others with the same trust and respect that we expect for
ourselves. Our mutual trust and respect is a reflection of our dedication
to the mission . . .. It is through unity, trust and respect that we will
best serve the community and achieve our goals.
Stip. ¶ 33; DSMF ¶ 26; PRDSMF ¶ 26. The mission statement did not contain the
words “malicious gossip” or “gossip.” DSMF ¶ 26; PRDSMF ¶ 26. On June 5, 2011,
during the Annual Pay Review (APR) process, FAUSA Domínguez gave AUSA
Márquez-Marín a $7000 raise; however, AUSA Márquez-Marín was still earning less
than counterparts, specifically AUSA Hernández, who had not engaged in protected
EEO activity. 75 Stip. ¶ 34; DSMF ¶ 28; PRDSMF ¶ 28.
g.
Carmen Márquez-Marín’s Personal Circumstances:
2008 to Date
During the years the Canales, Loiza, and Lloréns Torres cases were pending,
AUSA Márquez-Marín was under extraordinary stress, which she believed was not
AUSA Márquez-Marín interposes a qualified response on the DOJ’s paragraph twenty-six.
PRDSMF ¶ 26. AUSA Márquez-Marín states that “there are many other aspects to the 2011 Mission
Statement” and that the words “malicious gossip” and “gossip” do not appear in the Mission Statement.
PRDSMF ¶ 26. The Court included these statements because it is obligated to view contested facts in
the light most favorable to AUSA Márquez-Marín.
75
AUSA Márquez-Marín admits the DOJ’s paragraph twenty-eight, which is consistent with
Joint Stipulation paragraph thirty-four. PRDSMF ¶ 28. However, AUSA Márquez-Marín adds the
phrase after “however” and the Court included AUSA Márquez-Marín’s statement because it is
obligated to view contested facts in the light most favorable to AUSA Márquez-Marín.
74
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only related to the investigation of complex cases involving violent offenders, but also
to management decisions that adversely affected her work conditions and were
reversed only after AUSA Márquez-Marín had to invest considerable energy into
assuring that her rights were protected. 76 PSAMF ¶ 99; DRPSAMF ¶ 99. By mid2012, AUSA Márquez-Marín was a single mother with sole responsibility for two
young children. PSAMF ¶ 100; DRPSAMF ¶ 100.
Beginning in early 2012 to the present, AUSA Márquez-Marín has had a
number of serious medical conditions and several surgeries as well as several rounds
of chemotherapy. PSAMF ¶ 101; DRPSAMF ¶ 101. In AUSA Márquez-Marín’s view,
the conditions have a stress-related component. PSAMF ¶ 101; DRPSAMF ¶ 101.
The conditions include
•
shoulder impingement syndrome, a painful condition that caused
significant loss of movement of her right arm, first diagnosed about
March 2012, a condition for which she underwent surgery shortly
thereafter;
•
ovarian cancer, diagnosed approximately August 2012 upon removal of
her right ovary;
•
a second diagnosis of life-threatening uterine cancer (unrelated to her
earlier cancer diagnosis) detected during a surgical procedure in
November 2012, which involved the removal of several major organs;
The DOJ interposes a qualified response, objecting to the assertion that AUSA MárquezMarín’s stress was in fact related to her work as an AUSA. DRPSAMF ¶ 99. The Court slightly
amended AUSA Márquez-Marín’s additional paragraph ninety-nine to clarify that AUSA MárquezMarín believed that management decisions and her need to stand up for herself had caused her stress.
76
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•
chemotherapy treatments from mid-December 2012 through the first
half of 2013;
•
a post-operative hernia diagnosed in late 2013 for which she had surgery
in February 2014; and
•
a car accident in August 2014 in which AUSA Márquez-Marín’s
automobile was rammed by a car driven by another federal employee
and, as a result, she suffered severe neck and back sprains with ongoing
adverse effects. 77
PSAMF ¶ 101; DRPSAMF ¶ 101. AUSA Márquez-Marín fully informed the USAO
management about her medical conditions, the extreme pain she was suffering, and
her need to minimize stress. 78 PSAMF ¶ 103; DRPSAMF ¶ 103. Despite these major
The DOJ denies some and qualifies some of the statements in AUSA Márquez-Marín’s
additional paragraph one hundred and one. DRPSAMF ¶ 101. First, the DOJ notes that by Joint
Stipulation paragraph fifty-nine, the parties agree that AUSA Márquez-Marín’s chemotherapy began
in mid-December 2012. Stip. ¶ 59. The Court agrees and inserted the mid-December starting date.
Second, the DOJ contends that AUSA Márquez-Marín is not qualified to express a view that her
medical conditions have a stress-related component. DRPSAMF ¶ 101. The Court slightly altered the
statement to reflect that the stress-related component is from AUSA Márquez-Marín’s perspective and
is not an expert medical causation opinion. Third, the DOJ says that the uterine cancer surgery took
place on September 20, 2012, not in November 2012. DRPSAMF ¶ 101. It is true that Joint Stipulation
paragraph fifty-one describes a surgery that took place on September 20, 2012, but this does not mean
that this surgery was the one where cancer was discovered. The Court cannot assume that AUSA
Márquez-Marín does not know when she underwent surgery and it may be that there was more than
one surgery, so the Court rejects this denial.
In AUSA Márquez-Marín’s additional paragraph one hundred and two, AUSA Márquez-Marín
states that “[her] physicians have informed her that stress on the job contributes to the medical
conditions she suffers and should be avoided as much as possible.” PSAMF ¶ 102. The DOJ objects
on evidentiary grounds. DRPSAMF ¶ 102. The Court agrees, finds that what AUSA Márquez-Marín’s
physicians told her about the cause of her medical conditions is inadmissible hearsay, and declined to
include the statement in its statements of fact.
78
The DOJ interposes a qualified response, saying that it cannot admit the paragraph based on
AUSA Márquez-Marín’s statements only. DRPSAMF ¶ 103. The Court disagrees. This is within
AUSA Márquez-Marín’s personal knowledge.
The DOJ denies that AUSA Márquez-Marín informed management at USAO about her “need”
to minimize stress as opposed to her desire to do so. DRPSAMF ¶ 103. The Court does not accept the
DOJ’s denial because it is required to view conflicting evidence in the light most favorable to AUSA
Márquez-Marín.
77
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health issues, AUSA Márquez-Marín continued to work at the USAO, except during
authorized leaves of absence, under extremely strenuous conditions that in her view
were caused by management. 79 PSAMF ¶ 104; DRPSAMF ¶ 104. Even though AUSA
Márquez-Marín underwent three major surgeries during the year 2012, she
continued to work even from the hospital, taking calls from defense attorneys while
hospitalized. PSAMF ¶ 105; DRPSAMF ¶ 105. This was at a time when she was
formally on sick leave. 80 PSAMF ¶ 105; DRPSAMF ¶ 105. During this same period
of intense medical treatment and to this day, AUSA Márquez-Marín has sole
responsibility for two preteen children. PSAMF ¶ 106; DRPSAMF ¶ 106.
h.
The March 2013 Work Evaluation
In mid-March 2013, SUSA Vázquez conducted evaluations for the Violent
Crimes Unit for work performed during 2012. DSMF ¶ 50; PRDSMF ¶ 50; PSAMF
¶ 107; DRPSAMF ¶ 107.
Although AUSA Márquez-Marín received an overall
“outstanding” rating (the top rating), she complained because she did not receive an
outstanding rating in the individual element relating to her productivity. DSMF
¶ 50; PRDSMF ¶ 50. SUSA Vázquez as evaluator and Criminal Division Chief Ruiz
as reviewer initially gave AUSA Márquez-Marín only a “Successful” grade on the
The DOJ interposes a qualified response, noting that AUSA Márquez-Marín took leaves of
absence. DRPSAMF ¶ 104. The Court agrees and amended AUSA Márquez-Marín’s additional
paragraph one hundred and four to reflect that AUSA Márquez-Marín took authorized leaves of
absence. The DOJ denies that management caused AUSA Márquez-Marín’s work-related stress.
DRPSAMF ¶ 104. In response, the Court amended AUSA Márquez-Marín’s additional paragraph one
hundred and four to clarify that it is AUSA Márquez-Marín’s belief that management caused the stress
at the workplace.
80
The DOJ denies AUSA Márquez-Marín’s contention that she was formally on sick leave as
unsupported by the cited authority. DRPSAMF ¶ 105. The Court overrules the DOJ’s denial because
whether she was on formal sick leave is a matter within AUSA Márquez-Marín’s personal knowledge.
79
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“productivity” element of the evaluation. 81 DSMF ¶ 50; PRDSMF ¶ 50; PSAMF ¶ 108;
DRPSAMF ¶ 108. Successful is one of three evaluation grades—“Outstanding,”
“Successful,” and “Unacceptable.” PSAMF ¶ 109; DRPSAMF ¶ 109. The evaluation
grades impact salary. PSAMF ¶ 110; DRPSAMF ¶ 110. A successful evaluation
lowers the range of possible salary increases when compared to an outstanding
evaluation. 82 PSAMF ¶ 110; DRPSAMF ¶ 110.
AUSA Márquez-Marín felt she deserved a higher rating, particularly in light
of her work that year in negotiating pleas for all of the (some seventy-five) Loiza
defendants, despite having three major surgeries during calendar year 2012 and
having AUSA Rivera working on another matter.
DSMF ¶ 50; PRDSMF ¶ 50;
PSAMF ¶ 111; DRPSAMF ¶ 111. AUSA Márquez-Marín talked to SUSA Vázquez
and said:
Listen . . . . I am exhausted. I am really tired. I have been going through
a lot of surgeries. I have the kids. I am going to start chemo. You know
that I have been working even from the hospital, with the defense
attorneys trying to find settlements for these cases [which included
murderers]. . . . You know everything I have done, and you are lowering
my productivity. This is nuts. Do I have to sit down and write more
memos. I mean, what are we going to do? Do I have to fight this too? . . .
Does that make any sense, Mr. Vázquez?
In DOJ’s paragraph fifty, it mentions only the fact that successful was one down from the top
rating, and AUSA Márquez-Marín clarifies in her response that it is one up from the lowest rating.
Viewing the record in the light most favorable to AUSA Márquez-Marín, the Court amended DOJ’s
paragraph fifty to reflect both facts.
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred and eight, noting that Criminal Division Chief Ruiz also signed the evaluation as reviewer.
DRPSAMF ¶ 108. The Court agrees with the DOJ and amended AUSA Márquez-Marín’s additional
paragraph one hundred and eight accordingly.
82
The DOJ interposes a qualified response, noting that the statement is true only for an overall
evaluation, not when the evaluation is only for an individual evaluation element, such as productivity.
DRPSAMF ¶ 110. The Court rejects the DOJ’s qualified response because AUSA Márquez-Marín’s
additional paragraph one hundred and ten does not state that differences in the individual evaluation
elements affect salary.
81
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PSAMF ¶ 112 (alterations in original) (internal citation omitted); DRPSAMF ¶ 112.
AUSA Márquez-Marín later explained that when she was making this plea to SUSA
Vázquez, she was referring to other situations in which she would receive an adverse
action (“every time they do something to me”), she would have to “send an email . . .
[having] to document everything, . . . [having] to argue. And then they review it and
they put i[t] back (i.e. change the decision).” 83 PSAMF ¶ 113 (alterations in original);
DRPSAMF ¶ 113. SUSA Vázquez, who was about to retire, agreed to revisit the issue.
PSAMF ¶ 114; DRPSAMF ¶ 114. SUSA Vázquez eventually changed the rating on
the “productivity” element. 84 DSMF ¶ 50; PSDSMF ¶ 50; PSAMF ¶ 114; DRPSAMF
¶ 114. SUSA Vázquez told AUSA Márquez-Marín, “I thought about what we talked
[about], and I think the correct thing to do is I am going to give you [an] outstanding
The DOJ interposes a qualified response, clarifying that this statement is AUSA MárquezMarín’s later explanation of her conversation with SUSA Vázquez. DRPSAMF ¶ 113. The Court
altered the clauses in the paragraph to convey that this is AUSA Márquez-Marín’s later explanation
of what she said to SUSA Vázquez, not what she said at the time.
84
In her additional paragraph one hundred and fourteen, AUSA Márquez-Marín asserts that
before changing her rating, SUSA Vázquez acknowledged that she had done an excellent job. PSAMF
¶ 114. The DOJ interposes a qualified response, clarifying that the evidence that SUSA Vázquez said
that AUSA Márquez-Marín had done an excellent job is AUSA Márquez-Marín’s deposition testimony
about the contents of an email she received from SUSA Vázquez and is therefore inadmissible hearsay.
DRPSAMF ¶ 114. The Court agrees with the DOJ that AUSA Márquez-Marín’s statement about the
contents of an email is not admissible but not because it is hearsay. SUSA Vázquez was AUSA
Márquez-Marín’s supervisor and, as such, his statement to her about his evaluation of her performance
would be an admission by a party-opponent. See FED. R. EVID. 801(d)(2).
The evidentiary problem is that AUSA Márquez-Marín’s statement about the contents of
SUSA Vázquez’s email violates the Best Evidence Rule. See FED. R. EVID. 1002. This rule requires
that “parties seeking to prove the content of a writing must introduce into evidence the original of that
writing.” Gonzalez Morales v. Ashford Presbyterian Cmty. Hosp., Inc., CIV. NO. 13-1906 (PG), 2019
U.S. Dist. LEXIS 71202, at *6, 2019 WL 1923458, at *2 (D.P.R. Apr. 26, 2019). There are four
exceptions to the Best Evidence Rule, see id. (citing FED. R. EVID. 1004; Airframe Sys., Inc. v. L-3
Commc’ns Corp., 658 F.3d 100, 107 (1st Cir. 2011)), but none is applicable here. The Court did not
include the “excellent job” statement but observes that in light of SUSA Vázquez’s statement, which
the DOJ admits, that he gave AUSA Márquez-Marín an outstanding productivity rating because she
deserved it, his earlier email about her excellent work is cumulative.
83
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productivity [rating] because you deserve it.” DSMF ¶ 50 (alterations in original);
PRDSMF ¶ 50; PSAMF ¶ 114; DRPSAMF ¶ 114.
SUSA Vázquez then contacted Chief Ruiz, who was the reviewer for the
evaluation, and asked him to reconsider AUSA Márquez-Marín’s rating. DSMF ¶ 50;
PRDSMF ¶ 50. Chief Ruiz agreed as well. DSMF ¶ 50; PRDSMF ¶ 50. Accordingly,
on March 14, 2013, when AUSA Márquez-Marín received her final evaluation for her
work in 2012, she received an overall “outstanding” rating with four “outstanding”
ratings on the individual elements (including in productivity) and one “successful”
rating (in writing). Stip. ¶ 65; DSMF ¶ 50; PRDSMF ¶ 50.
i.
Carmen Márquez-Marín and Other Employees’ EEO
Complaints, Including Francisco Reyes Caparrós
After AUSA Márquez-Marín returned to the USAO, having won a jury trial
and having been reinstated by order of Judge McAuliffe, over the years, she has been
approached by several employees who had EEO concerns and wanted to know how to
proceed. 85 PSAMF ¶¶ 115-16; DRPSAMF ¶¶ 115-16. These employees included
former AUSA Agnes Cordero, former AUSA Dina Ávila, former Appellate Division
Chief Pérez, and former Human Resources Specialist Juan De Angel. PSAMF ¶ 116;
DRPSAMF ¶ 116. One AUSA went to AUSA Márquez-Marín’s office to complain
AUSA Márquez-Marín’s additional paragraph one hundred and fifteen states that after she
returned to the USAO having won a jury trial and reinstatement, it was “well-known” that she had an
expertise in EEO matters. PSAMF ¶ 115. The DOJ denies the statement on the ground that simply
because AUSA Márquez-Marín says that something was well-known does not mean that it was so.
DRPSAMF ¶ 115. The DOJ position, though technically correct, seems ungenerous. The Court
suspects that AUSA Márquez-Marín’s successful lawsuit against DOJ was, in fact, well-known within
the Puerto Rico USAO and that other AUSAs thought she had some expertise in EEO matters as a
consequence. Nevertheless, the Court struck “well-known” and spliced the next paragraph into
paragraph one hundred and fifteen.
85
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about her then supervisor, AUSA José Capó Iriate, stating that he was discriminating
against her and calling her diminutive names to harass her. 86
DRPSAMF ¶ 117.
PSAMF ¶ 117;
AUSA Márquez-Marín understood that the former AUSA in
question went to consult with her because AUSA Márquez-Marín was “the only
person in the office that has survived retaliation in connection to EEO . . . . [a]nd so,
when people are facing this type of treatment, they end up in [her] office.” 87 PSAMF
¶ 118 (some alterations in original); DRPSAMF ¶ 118.
AUSA Márquez-Marín would listen to the concerns of these other employees
and typically would inform them about the EEO process and how to file a complaint.
PSAMF ¶ 119; DRPSAMF ¶ 119. AUSA Márquez-Marín would also inform these
other employees about the internet site where they could find relevant forms.
PSAMF ¶ 119; DRPSAMF ¶ 119.
AUSA Márquez-Marín would tell these other
employees that “if you believe that the treatment . . . . is discriminatory, because you
are female or whatever, . . . or if you believe that’s illegal treatment and you feel
harassed, you need to contact EEO . . .[.] There is a phone. There is a poster. Contact
them and decide what to do.” 88 PSAMF ¶ 120; DRPSAMF ¶ 120.
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred and seventeen, denying the truth of the allegations against AUSA Capó. DRPSAMF ¶ 117.
The Court overrules the DOJ’s qualified response. AUSA Márquez-Marín’s additional paragraph one
hundred and seventeen does not state that the allegations against AUSA Capó were true, only that
they were made to AUSA Márquez-Marín.
87
The DOJ admits that AUSA Márquez-Marín testified that this was true but denies that it was
true. DRPSAMF ¶ 118. Again, the DOJ’s position seems technical at best. In any event, AUSA
Márquez-Marín’s additional paragraph one hundred and eighteen discusses AUSA Márquez-Marín’s
impressions about why other USAO employees were coming to see her about their EEO complaints.
Thus, the Court rejects the DOJ’s denial.
88
AUSA Márquez-Marín’s additional paragraph one hundred and twenty-one states that
Francisco Reyes Caparrós, an Intelligence Specialist for the USAO from 2009 until February 2015,
sought out her counsel. PSAMF ¶ 121. The DOJ interposes a lengthy denial of the allegation, stating
that the cited record does not support the alleged fact and asserting discovery violations. DRPSAMF
86
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In late 2013, AUSA Márquez-Marín was near the bank of elevators on the floor
where her office was located when Francisco Reyes Caparrós, an Intelligence
Specialist for the USAO from 2009 until February 2015, approached her and asked
her to give him some advice about a number of management actions which he
understood constituted retaliation for his prior cooperation with another AUSA who
he later found out had an EEO matter with the USAO.
DRPSAMF ¶ 122.
PSAMF ¶¶ 121-22;
AUSA Márquez-Marín noticed that SUSA José Capó, then
supervisor of the Violent Crimes Unit and AUSA Márquez-Marín’s supervisor, was
in the area observing her and Specialist Reyes, and SUSA Capó may have been able
to hear what they were discussing. 89 PSAMF ¶ 123; DRPSAMF ¶ 123. AUSA
Márquez-Marín invited Specialist Reyes into her office where they discussed his EEO
concerns. PSAMF ¶ 123; DRPSAMF ¶ 123. According to AUSA Márquez-Marín, the
office “is a fishbowl” and everyone knows what people are doing and is always paying
attention. 90 PSAMF ¶ 124; DRPSAMF ¶ 124.
¶ 121. Although the Court reviewed the cited record and agrees with DOJ that the citation does not
support the asserted fact and did not include it in its recitation of the facts, the Court notes that the
DOJ admitted the next asserted fact, which confirms that Specialist Reyes did approach AUSA
Márquez-Marín for EEO advice. See PSAMF ¶ 122; DRPSAMF ¶ 122. The Court is not sure of the
point of the DOJ’s lengthy objection to additional paragraph one hundred and twenty-one.
The DOJ admits the part of additional paragraph one hundred and twenty-one that states that
Francisco Reyes Caparrós served as an Intelligence Specialist at the USAO from 2009 until February
2015. DRPSAMF ¶ 121. The Court incorporates this assertion into the following paragraph.
89
The DOJ admits that SUSA Capó saw AUSA Márquez-Marín and Specialist Reyes talking,
but it denies that he heard what they were saying. DRPSAMF ¶ 123. The Court overrules the DOJ’s
denial. AUSA Márquez-Marín’s additional paragraph one hundred and twenty-three does not allege
that SUSA Capó heard what they were saying, only that he was within earshot.
The DOJ also qualifies the part of additional paragraph one hundred and twenty-three that
states that SUSA Capó was “new.” DRPSAMF ¶ 123. The Court reviewed the cited portions of the
record, agrees with the DOJ, and struck the word “new” from the paragraph.
90
The DOJ admits that this is what AUSA Márquez-Marín believes but denies it is true.
DRPSAMF ¶ 124. The Court overrules the DOJ’s denial because the Court views additional paragraph
one hundred and twenty-four as AUSA Márquez-Marín’s personal opinion, not objective fact.
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Specialist Reyes filed the first of two administrative EEO complaints against
the DOJ on November 29, 2013. 91 PSAMF ¶ 125; DRPSAMF ¶ 125. Sometime
thereafter, Specialist Reyes asked AUSA Márquez-Marín if she would be willing to
be a witness in his EEO matter, and AUSA Márquez-Marín said she would do so. 92
PSAMF ¶ 126; DRPSAMF ¶ 126. In July 2014, AUSA Márquez-Marín ran into
Wallace Bustelo, a former SAUSA, and SAUSA Bustelo asked her if she was going to
be a witness in the Reyes Caparrós case. 93 PSAMF ¶ 127; DRPSAMF ¶ 127. AUSA
Márquez-Marín indicated that she would be. PSAMF ¶ 127; DRPSAMF ¶ 127.
On July 9, 2014, Specialist Reyes provided sworn testimony before Tsedey
Behanu, an EEO investigator with the EOUSA, in his case (No. 2014-00043) in which
the accepted issue for investigation was that “management officials of the [USAO] for
the District of Puerto Rico discriminated against him for engaging in protected EEO
Activity when [t]hey suspended him on or about April 10, 2014 (at the exact same
time the issue of [AUSA] Márquez[-Marín]’s requested review of her evaluation was
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and twenty-five
on the ground that AUSA Márquez-Marín failed to reveal it during discovery. DRPSAMF ¶ 125. The
Court overrules the DOJ’s objection for purposes of the motion for summary judgment only.
Additional paragraph one hundred and twenty-five also says that “[SUSA] Capó was named
as one of the discriminators in that complaint.” PSAMF ¶ 125. The DOJ also denies this assertion.
DRPSAMF ¶ 125. The Court agrees with the DOJ that AUSA Márquez-Marín’s personal knowledge
of what the complaint contained is hearsay and not admissible for purposes of this dispositive motion.
Therefore, the Court struck this portion of additional paragraph one hundred and twenty-five.
92
The DOJ interposes a qualified response, asserting that this event took place in July 2014.
DRPSAMF ¶ 126. The Court overrules the DOJ’s qualified response. The DOJ’s more specific date
does not contradict AUSA Márquez-Marín’s additional paragraph one hundred and twenty-six, which
says that the conversation occurred sometime after November 29, 2013.
93
The DOJ admits that in July 2014, AUSA Márquez-Marín ran into former SAUSA Wallace
Bustelo, but the DOJ denies that SAUSA Bustelo asked her whether she was going to be a witness in
the Reyes Caparrós case. DRPSAMF ¶ 127. The DOJ points out that at other points, AUSA MárquezMarín said that SAUSA Bustelo asked her whether she was going to be “helping” Specialist Reyes.
DRPSAMF ¶ 127. The Court overrules the DOJ’s denial because in its context, the Court does not
perceive a meaningful difference between helping and testifying for Specialist Reyes.
91
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being discussed) by the very same management team.” 94 PSAMF ¶ 173; DRPSAMF
¶ 173.
According to Specialist Reyes, there was a time he was “invited to the
supervisor’s meeting and . . . heard how they retaliate against everyone.” 95 PSAMF
¶ 174; DRPSAMF ¶ 174. Specialist Reyes testified that he knows how they think and
what they do when they want to retaliate because he has seen it before and heard it
before, such as when United States Attorney Rodríguez would be in a management
meeting and provide guidance on how to retaliate on people.
PSAMF ¶ 174;
DRPSAMF ¶ 174. Specialist Reyes, who sat in on those meetings from 2009 to 2012,
stated that this was “a pattern that they do.” 96 PSAMF ¶ 175; DRPSAMF ¶ 175. He
explained, “I have seen it personally. This is not hearsay. I sat [in] on those meetings
and I heard the orders that were being given by [United States Attorney Rodríguez
on] how to follow employees, how to make sure the retaliation was not see[n], so I
knew every step of what was going to happen to me.” 97 PSAMF ¶ 175; DRPSAMF
¶ 175. Specialist Reyes provided specific examples of how management “retaliated
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and seventy-three
on the ground that AUSA Márquez-Marín violated her discovery obligations. DRPSAMF ¶ 173. The
Court overrules the allegation of a discovery violation and will consider the paragraph’s contents for
purposes of the pending summary judgment motion only.
The DOJ further qualifies additional paragraph one hundred and seventy-three to the extent
it mentions AUSA Márquez-Marín in the accepted issue. DRPSAMF ¶ 173. The Court views the
mention of AUSA Márquez-Marín as her recollection, based on personal knowledge, that the review of
her evaluation was going on at the same time as Specialist Reyes’ suspension. Thus, the Court
overrules this qualification.
95
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and seventy-four
on the same ground as its denial of paragraph one hundred and seventy-three. DRPSAMF ¶ 174. The
Court overrules the denial for the same reason.
96
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and seventy-five
on the same ground as its denial of paragraph one hundred and seventy-three. DRPSAMF ¶ 175. The
Court overrules the denial for the same reason.
97
The DOJ also denies AUSA Márquez-Marín’s additional paragraph one hundred and seventyfive on the ground that AUSA Márquez-Marín is taking Specialist Reyes’ comments out of context.
DRPSAMF ¶ 175. The Court rejects the DOJ’s objection because it is required to view contested facts
in the light most favorable to AUSA Márquez-Marín.
94
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against people.” 98 PSAMF ¶ 176; DRPSAMF ¶ 176. He talked about instructions
from United States Attorney Rodríguez to then AUSA Capó to follow a particular
AUSA, Idalia Mestey, but to “make sure she did not realize she was being followed
. . . . and then if she was seen with . . . [AUSA] Cordero, one of [Specialist Reyes’]
witnesses, because [AUSA] Cordero had prior complaints as well . . ..” PSAMF ¶ 176;
DRPSAMF ¶ 176. Specialist Reyes went on to provide another example: Upper
management would “ask [for] the parking access card for [AUSA] Márquez[-Marín],
[AUSA] Mestey, [AUSA] Michael Bagge . . . to check their time and attendance when
the specific regulations state[] that [parking access cards are] not allowed to be used
for time and attendance purposes.” 99 PSAMF ¶ 177 (some alterations in original);
DRPSAMF ¶ 177.
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and seventy-six
on the same ground as its denial of paragraph one hundred and seventy-three. DRPSAMF ¶ 176. The
Court overrules the denial for the same reason.
The DOJ further qualifies additional paragraph one hundred and seventy-six, arguing that
the record on which the testimony relies consists of “speculative, foundationless opinions of one
individual regarding the intentions of another, relying on no supporting evidence,” and that the Court
should disregard it. DRPSAMF ¶ 176. The DOJ admits that Specialist Reyes testified as stated,
though. DRPSAMF ¶ 176. Specialist Reyes stated that he was physically present at these meetings,
see PSAMF ¶ 175, so to the extent the DOJ’s objections are based on his lack of understanding about
what transpired, the Court overrules the objection since it goes to the weight of the testimony, not its
admissibility. The more serious objection is that Specialist Reyes is speculating about the intentions
of others. The way the Court views Specialist Reyes’ statement is that it is an introductory statement
for the specific examples that he gives in the following paragraphs. The Court overrules the DOJ’s
objection.
99
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and seventy-seven
on the same ground as its denial of paragraph one hundred and seventy-three. DRPSAMF ¶ 177. The
Court overrules the denial for the same reason.
Additional paragraph one hundred and seventy-seven also asserts that Specialist Reyes said,
“They check your cards, they check your time and attendance. They send people to follow you to make
sure you are in the office alone because if you are seen with someone else that is on the list that they
have of people that have filed complaints, . . . they treat you as crazy.” PSAMF ¶ 177. The DOJ denies
this portion of additional paragraph one hundred and seventy-seven because AUSA Márquez-Marín
has not included the page of the document she attributes this assertion to with her filing. DRPSAMF
¶ 177. The Court reviewed the cited portions of the record and agrees that the referenced page is not
in the record. Therefore, the Court struck this portion of the paragraph.
98
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In September 2015, Specialist Reyes filed a lawsuit in the U.S. District Court
for the District of Puerto Rico, alleging retaliation and constructive discharge. 100
PSAMF ¶ 128; DRPSAMF ¶ 128. This case was named Reyes Caparrós v. Barr, given
the docket number 15-cv-02229-JNL, and assigned to Judge Joseph Laplante of the
United States District Court for the District of New Hampshire. PSAMF ¶ 128;
DRPSAMF ¶ 128. In May 2018, following a three-week trial, a jury found “by a
preponderance of the evidence, that [Specialist Reyes’] supervisors at the [USAO]
retaliated against him for engaging in protected [EEO] activity” and awarded him
$300,000 in damages. 101 PSAMF ¶ 129 (some alterations in original); DRPSAMF
¶ 129. Judge Laplante later denied a motion for new trial or judgment as a matter of
law; in his order denying post-trial relief, Judge Laplante observed that “[t]hroughout
[Specialist Reyes’] employment at the USAO, its executive management team
consisted of . . . United States Attorney . . . Rodríguez, [FAUSA] Domínguez, and
[Special Counsel] Novas . . ..” 102 PSAMF ¶ 130; DRPSAMF ¶ 130. José Capó, then
The DOJ also qualifies the part of the paragraph concerning the parking access card
regulations, arguing that its truth is unsupported. DRPSAMF ¶ 177. Since the Court views this
statement as Specialist Reyes’ testimony, not true fact, the Court rejects this qualification.
100
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and twenty-eight,
alleging that AUSA Márquez-Marín committed a discovery violation in failing to disclose this lawsuit
to the DOJ. DRPSAMF ¶ 128. As the Reyes Caparrós lawsuit is filed as a public record in this Court
and the defendant is the Attorney General, the Court allows the statement for purposes of this motion
for summary judgment.
101
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and twenty-nine,
alleging that AUSA Márquez-Marín committed a discovery violation in failing to disclose this lawsuit
to the DOJ. DRPSAMF ¶ 129. As the Reyes Caparrós lawsuit is filed as a public record in this Court
and the defendant is the Attorney General, the Court allows the statement for purposes of this motion
for summary judgment.
102
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and thirty
alleging that AUSA Márquez-Marín committed a discovery violation in failing to disclose this lawsuit
to the DOJ. DRPSAMF ¶ 130. As the Reyes Caparrós lawsuit is filed as a public record in this Court
and the defendant is the Attorney General, the Court allows the statement for purposes of the motion
for summary judgment.
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Chief of the Criminal Division, testified at the Reyes Caparrós trial, as did United
States Attorney Rodríguez, FAUSA Domínguez, and Special Counsel Novas. 103
PSAMF ¶ 131; DRPSAMF ¶ 131.
j.
Work in the Environmental Crimes Unit from July 5,
2011, Through March 31, 2014
On July 5, 2011, then Criminal Division Chief Ruiz informed AUSAs MárquezMarín and Hector Ramírez that they were being designated the environmental crimes
prosecutors in the USAO’s Criminal Division. Stip. ¶ 35; DSMF ¶ 29; PRDSMF ¶ 29.
They would receive the cases and investigations of SAUSA Sylvia Carreño, who was
about to become a United States Magistrate Judge. Stip. ¶ 35; DSMF ¶ 29; PRDSMF
¶ 29. AUSA Márquez-Marín forwarded Chief Ruiz’s email to SUSA Vázquez, who
congratulated her: “As a trained environmentalist (which I know you are from way
back) this is an assignment which you will enjoy working on. Receive my most sincere
wish for good luck and success in this new endeavor.” Stip. ¶ 35; DSMF ¶ 29;
PRDSMF ¶ 29.
In approximately August 2011, SUSA Vázquez recommended AUSAs
Márquez-Marín and Rivera for the EOUSA’s prestigious Director’s Award for their
work on the Canales case. DSMF ¶ 30; PRDSMF ¶ 30. United States Attorney
The DOJ also questions whether there were other individuals within the management team
and notes that Specialist Reyes had a different chain of command than AUSA Márquez-Marín.
DRPSAMF ¶ 130. To quell controversy, the Court quoted the Laplante order. See Mem. Order at 6,
Reyes Caparrós v. Barr, 15-cv-02229 (ECF No. 245).
103
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and thirty-one
alleging that AUSA Márquez-Marín committed a discovery violation in failing to disclose this lawsuit
to the DOJ. DRPSAMF ¶ 131. As the Reyes Caparrós lawsuit is filed as a public record in this Court
and the defendant is the Attorney General, the Court allows the statement for purposes of this motion
for summary judgment. The Court overrules the DOJ’s relevance objection. See DRPSAMF ¶ 131.
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Rodríguez nominated them on behalf of the USAO. DSMF ¶ 30; PRDSMF ¶ 30. In
late October 2011, after the EOUSA announced that AUSAs Márquez-Marín and
Rivera would receive the EOUSA’s prestigious Director’s Award, United States
Attorney Rodríguez emailed the entire office to congratulate them. Stip. ¶ 36; DSMF
¶ 30; PRDSMF ¶ 30. The award, when given in December 2011, stated that it was
for “Superior Performance as an Assistant United States Attorney—Criminal.” Stip.
¶ 36.
On October 18, 2011, the EOUSA released the latest version of a United States
Attorneys Procedure (USAP) on “flexible work options” (FWOs), including
telecommuting from home. Stip. ¶ 37; DSMF ¶ 31; PRDSMF ¶ 31. The USAP was
first issued in October 2004. Stip. ¶ 37; DSMF ¶ 31; PRDSMF ¶ 31. The updated
USAP stated that “[t]here is no employee entitlement to a particular FWO” and that
“[m]anagement has the sole authority to establish the basic working requirements,
including core hours where appropriate, and the duty station of each employee.” Stip.
¶ 37 (some alterations in original); DSMF ¶ 31; PRDSMF ¶ 31. It also stated that
“[e]mployees shall submit an FWO Request Form to the supervisor to formally
request consideration of one or more FWOs.” Stip. ¶ 37 (alteration in original).
On March 9, 2012, United States Attorney Rodríguez authorized an $8000
raise for AUSA Márquez-Marín during the APR process. Stip. ¶ 38; DSMF ¶ 32;
PRDSMF ¶ 32. On March 20, 2012, United States Attorney Rodríguez approved
AUSA Márquez-Marín for three hours of advanced sick leave in connection with the
foster care and adoption of a child. Stip. ¶ 39; DSMF ¶ 32; PRDSMF ¶ 32. Also, in
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March 2012, AUSA Márquez-Marín became afflicted with shoulder impingement, a
condition that caused loss of movement of her right arm. Stip. ¶ 40; DSMF ¶ 33;
PRDSMF ¶ 33. In April 2012, AUSA Márquez-Marín was diagnosed with carpal
tunnel syndrome; that same month, she also underwent surgery for the shoulder
impingement. Stip. ¶ 40; DSMF ¶ 34; PRDSMF ¶ 34.
While AUSA Márquez-Marín was out of the office in connection with her
surgery, members of the USAO management—in particular, SUSA Vázquez—
ensured that her work was covered and excused her from work-related matters.
DSMF ¶ 35; PRDSMF ¶ 35. For example, on April 10, 2012, SUSA Vázquez and legal
assistant Darlye Coronado arranged for another AUSA to cover a hearing for AUSA
Márquez-Marín. Stip. ¶ 41; DSMF ¶ 35; PRDSMF ¶ 35. On April 12, 2012, SUSA
Vázquez and USAO Human Resources Officer López corresponded with United
States Attorney Rodríguez to confirm AUSA Márquez-Marín’s advanced sick leave
for adoption purposes and to let United States Attorney Rodríguez know that AUSA
Márquez-Marín would be out for shoulder surgery.
Stip. ¶ 42.
United States
Attorney Rodríguez said, “No problem.” Stip. ¶ 42.
On April 17, 2012, SUSA Vázquez excused AUSA Márquez-Marín from having
to submit her “Significant Cases Report” because she was recovering from surgery.
Stip. ¶ 43; DSMF ¶ 35; PRDSMF ¶ 35. SUSA Vázquez told AUSA Márquez-Marín to
submit the report when she could type again. Stip. ¶ 43; DSMF ¶ 35; PRDSMF ¶ 35.
He also told her that he hoped that she got well soon. Stip. ¶ 43; DSMF ¶ 35;
PRDSMF ¶ 35. That same day, SUSA Vázquez separately emailed AUSA Márquez-
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Marín, “We all wish and pray the best for you and hope you recover soon.” Stip. ¶ 43;
DSMF ¶ 35; PRDSMF ¶ 35. On April 30, 2012, United States Attorney Rodríguez
approved AUSA Márquez-Marín for ten additional hours of advanced sick leave for
adoption purposes. Stip. ¶ 44; DSMF ¶ 35; PRDSMF ¶ 35.
In connection with her carpal tunnel syndrome and shoulder impingement,
AUSA Márquez-Marín filed a claim with the Department of Labor’s Office of Workers’
Compensation Programs (OWCP). Stip. ¶ 45; DSMF ¶ 36; PRDSMF ¶ 36. In late
May and early June 2012, then United States Attorney Rodríguez approved AUSA
Márquez-Marín for additional hours of advanced sick leave for adoption purposes.
Stip. ¶ 46; DSMF ¶ 37; PRDSMF ¶ 37.
On July 20, 2012, the DOJ approved a “Policy Statement on Telework.” Stip.
¶ 47; DSMF ¶ 38; PRDSMF ¶ 38. It stated in part that “[t]elework is not an employee
right.” Stip. ¶ 47 (alteration in original); DSMF ¶ 38; PRDSMF ¶ 38. The OWCP
denied AUSA Márquez-Marín’s workers’ compensation claim at the end of July 2012.
Stip. ¶ 48; DSMF ¶ 39; PRDSMF ¶ 39. Over the years, the DOJ has had several
telework policies pursuant to which an employee with medical needs can work from
home, complying with his or her obligations in a manner consistent with the goal of
a full recovery. 104 PSAMF ¶ 132; DRPSAMF ¶ 132. During AUSA Márquez-Marín’s
absence for her three major surgeries in 2012 and her later chemotherapy,
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred and thirty-two, noting that it has had several telework policies over the years. DRPSAMF
¶ 132. The Court agrees with the DOJ and amended AUSA Márquez-Marín’s additional paragraph
one hundred and thirty-two accordingly.
104
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management in the USAO did not offer her the option of teleworking. 105 PSAMF
¶ 133; DRPSAMF ¶ 133. This was despite the fact that AUSA Márquez-Marín was
in frequent communication with Human Resources Officer López regarding her need
for sick leave and the possibility of receiving donations of leave from other employees
in 2012 and 2013 during the period of her illness. 106 PSAMF ¶ 134; DRPSAMF ¶ 134.
When AUSA Márquez-Marín finally found out about the teleworking policies, it was
after she had already exhausted all of her leave time. 107 PSAMF ¶ 135; DRPSAMF
¶ 135.
On August 23, 2012, AUSA Márquez-Marín had her right ovary removed in an
emergency surgery. 108 Stip. ¶ 49; DSMF ¶ 40; PRDSMF ¶ 40. Following the surgery,
AUSA Márquez-Marín emailed Officer López that she was scheduled for another
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred and thirty-three, noting first that AUSA Márquez-Marín fails to identify which persons
constituted management. DRPSAMF ¶ 133. The Court overrules this objection because AUSA
Márquez-Marín claims that no one in management did so, whoever was in management. Second, the
DOJ qualifies its response because the fact assumes that management had an obligation to do so. The
Court rejects this qualification because the fact stands regardless of whether management had such
an affirmative obligation and the paragraph does not state or imply that DOJ had an obligation to do
so. Third, the DOJ qualifies its response because management publicized the existence of the telework
policy within the USAO. The Court rejects this qualification because it does not negate the contents
of the paragraph. Finally, the DOJ asserts that AUSA Márquez-Marín is incorrect. The Court rejects
this qualification because it is required to view conflicting evidence in the light most favorable to AUSA
Márquez-Marín.
106
The DOJ repeats its qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred and thirty-three. DRPASMF ¶ 134. The Court reiterates its response. This paragraph comes
closer to asserting that the DOJ had an affirmative obligation to inform AUSA Márquez-Marín about
the availability of telework. But the Court does not interpret the paragraph in that fashion.
107
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and thirty-five on
the ground that she had been placed on notice of the teleworking policy well before she ran out of leave
time. DRPSAMF ¶ 135. The Court rejects the DOJ’s denial because the Court is required to view
conflicting evidence in the light most favorable to AUSA Márquez-Marín.
108
AUSA Márquez-Marín interposes a qualified response to the DOJ’s paragraph forty, inserting
the actual date of the emergency surgery. PRDSMF ¶ 40. In accordance with its obligation to view
the facts in the light most favorable to AUSA Márquez-Marín, the Court inserted the actual date of
the emergency surgery in its recitation of the facts.
105
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“major surgery” on September 20, 2012, and was anticipating being out of the office
for four to six weeks. Stip. ¶ 49; DSMF ¶ 40; PRDSMF ¶ 40. AUSA Márquez-Marín
guessed that she did not have enough leave to cover that time and leave without pay
was not an option since she needed to pay bills. Stip. ¶ 49; DSMF ¶ 40; PRDSMF
¶ 40. AUSA Márquez-Marín asked Officer López for alternatives. Stip. ¶ 49; DSMF
¶ 40; PRDSMF ¶ 40. Officer López, whose email message indicated she was out of
the office at the time of AUSA Márquez-Marín’s email, communicated with AUSA
Márquez-Marín about the Voluntary Leave Transfer Program and about her life
insurance. 109 Stip. ¶ 50; DSMF ¶ 41; PRDSMF ¶ 41. Officer López’s main concern
was to ensure that AUSA Márquez-Marín had her salary paid during the time she
was out of the office and she set in motion a plan to solicit leave donations on AUSA
Márquez-Marín’s behalf. DSMF ¶ 41; PRDSMF ¶ 41.
On September 20, 2012, AUSA Márquez-Marín underwent surgery. Stip. ¶ 51;
DSMF ¶ 43; PRDSMF ¶ 43. The Operation Report described the operation:
Exam under anesthesia. Exploratory laparotomy. Peritoneal washings.
Total abdominal hysterectomy with left salpingo-oophorectomy. Pelvic
and periaortic node dissection. Curettage of the diaphragm. Infracolic
omentectomy.
Multiple biopsies of the abdominal and pelvic
peritoneum.
Stip. ¶ 51; DSMF ¶ 43; PRDSMF ¶ 43. Right before surgery, someone called AUSA
Márquez-Marín regarding a case. Stip. ¶ 52; DSMF ¶ 43; PRDSMF ¶ 43. AUSA
AUSA Márquez-Marín interposes a qualified response to the portion of this paragraph that
states Officer López was out of the office. PSAMF ¶ 41. She adds that Officer López’s out of office
message informed AUSA Márquez-Marín that two other individuals could be contacted. The Court is
not clear about the relevance of the qualified response and did not include those facts because the
parties agree that Officer López was the person who responded. The Court altered the paragraph to
indicate that Officer López had an out of office message to more accurately reflect the record.
109
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Márquez-Marín in turn called FAUSA Domínguez for assistance. Stip. ¶ 52; DSMF
¶ 43; PRDSMF ¶ 43. AUSA Márquez-Marín told FAUSA Domínguez that she was
about to have major surgery and could not be dealing with such matters. Stip. ¶ 52;
DSMF ¶ 43; PRDSMF ¶ 43. FAUSA Domínguez told AUSA Márquez-Marín not to
worry and said she would communicate with SUSA Vázquez to cover the case. Stip.
¶ 52; DSMF ¶ 43; PRDSMF ¶ 43.
On September 26, 2012, Officer López emailed AUSA Márquez-Marín and
asked how her surgery went. 110 Stip. ¶ 53; DSMF ¶ 44; PRDSMF ¶ 44. On October
2, 2012, AUSA Márquez-Marín asked Officer López to establish a bank for leave
donations because she was running out of sick leave.
Stip. ¶ 54; DSMF ¶ 44;
PRDSMF ¶ 44. Officer López replied that she could not ask for donations until AUSA
Márquez-Marín ran out of sick leave on October 12, 2012, and after that was done,
she would send an email to employees of the office indicating that AUSA MárquezMarín needed donations. Stip. ¶ 54; DSMF ¶¶ 42, 44; PRDSMF ¶¶ 42, 44. Even
though AUSA Márquez-Marín asked for alternatives, Officer López did not mention
the possibility of teleworking during this period. 111 DSMF ¶ 42; PRDSMF ¶ 42.
AUSA Márquez-Marín admits the series of facts in Defendant’s paragraph forty-four, but she
objects to them as immaterial. PRDSMF ¶ 44. The Court disagrees and views management’s favorable
treatment of AUSA Márquez-Marín as material as its unfavorable treatment.
Paragraph forty-four also asserts that after the surgery, the USAO management “again
checked on [AUSA] Márquez[-Marín]’s well-being and assisted her in various ways.” DSMF ¶ 44.
AUSA Márquez-Marín denies this portion of the paragraph, arguing that it is “editorializing by the
DOJ.” PRDSMF ¶ 44. The Court agrees and struck this portion of the paragraph from its recitation
of facts.
111
AUSA Márquez-Marín interposes a qualified response to DOJ’s paragraph forty-two, noting
that Officer López did not mention teleworking even though AUSA Márquez-Marín asked for
alternatives. PRDSMF ¶ 42 (citing DSMF ¶ 40). The Court added this fact because it is required to
view the record in the light most favorable to AUSA Márquez-Marín.
110
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On October 11, 2012, Officer López followed up with AUSA Márquez-Marín to
tell her that she was submitting AUSA Márquez-Marín’s request for a leave donation
package to the EOUSA. Stip. ¶ 54; DSMF ¶ 44; PRDSMF ¶ 44. On October 15, 2012,
Officer López emailed USAO employees to ask for leave donations for AUSA
Márquez-Marín. Stip. ¶ 55; DSMF ¶ 44; PRDSMF ¶ 44. That same day, Officer
López and AUSA Márquez-Marín exchanged a further series of emails discussing
plans for handling AUSA Márquez-Marín’s leave during her absence. Stip. ¶ 55;
DSMF ¶ 44; PRDSMF ¶ 44. On October 16, 2012, Officer López emailed the USAO
employees and said that they had received enough leave donations to ensure that
AUSA Márquez-Marín got paid during her medical emergency. Stip. ¶ 56; DSMF
¶ 44; PRDSMF ¶ 44. Officer López also shared a message with employees that AUSA
Márquez-Marín had sent to convey her appreciation.
Stip. ¶ 56; DSMF ¶ 44;
PRDSMF ¶ 44. On October 29, 2012, Officer López wrote to AUSA Márquez-Marín,
“You mentioned you had an appointment last week and I wanted to know how it
went.” Stip. ¶ 57; DSMF ¶ 44; PRDSMF ¶ 44. On November 7, 2012, after AUSA
Márquez-Marín returned to work and emailed the entire office to thank those who
had donated leave, United States Attorney Rodríguez wrote to the entire office and
welcomed AUSA Márquez-Marín back. Stip. ¶ 58; DSMF ¶ 44; PRDSMF ¶ 44.
AUSA Márquez-Marín underwent chemotherapy from mid-December 2012
through May or June 2013. Stip. ¶ 59; DSMF ¶ 45; PRDSMF ¶ 45. On several
occasions in early 2013 (January 11, February 4, and May 30), Officer López emailed
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USAO employees to solicit additional leave donations for AUSA Márquez-Marín. 112
Stip. ¶ 60; DSMF ¶ 46; PRDSMF ¶ 46.
During this period, unnamed USAO
employees donated leave. 113 DSMF ¶ 46; PRDSMF ¶ 46.
On January 29, 2013, Criminal Division Chief Ruiz emailed a number of
supervisors at the USAO, including United States Attorney Rodríguez and FAUSA
Domínguez, regarding a case in which AUSA Márquez-Marín had made an
appearance at a status conference. 114 Stip. ¶ 61; DSMF ¶ 46; PRDSMF ¶ 46. Chief
Ruiz wrote:
As you know, [AUSA Márquez-Marín] has been receiving chemotherapy
during the last couple of months and is scheduled to continue receiving
such treatment up to May. She is in a very weakened state right now.
[The Court] recently had a status conference in which, for some reason
I am not aware of, the defendant was present. Trial had been set some
time ago for April 16. In the status conference, [AUSA Márquez-Marín]
suggested to the Court to move the trial for May, sometime after
finishing her chemotherapy sessions. Defendant’s attorney . . . was in
agreement, but the defendant expressly opposed the continuance and
the judge [left] the trial date for April 16. I want the case assigned to
two prosecutors for the sole purpose of trying the case. There will be no
deals with this defendant. For purposes of tactical gain, he has
exhibited no consideration for the health of our prosecutors; therefore,
AUSA Márquez-Marín admits that Officer López made the solicitations set forth in
Defendant’s paragraph forty-six, but she objects to them as immaterial. PRDSMF ¶ 46. The Court
disagrees and views management’s favorable treatment of AUSA Márquez-Marín as material as its
unfavorable treatment. The requirement of viewing disputed facts in the light most favorable to the
nonmovant does not require the Court to strike all undisputed facts favorable to the movant.
113
AUSA Márquez-Marín denies as unsupported by the record citation the portion of DOJ’s
paragraph forty-six that states employees of the USAO protected AUSA Márquez-Marín from people
outside the office who were trying to take advantage of her health condition. PRDSMF ¶ 46 (citing
DSMF ¶ 46). The Court reviewed the record citation and agrees that it does not support that part of
paragraph forty-six. The Court did not include it in its recitation of the facts.
114
AUSA Márquez-Marín admits that Chief Ruiz wrote what is set forth in Defendant’s
paragraph forty-six to supervisors within the USAO and that FAUSA Domínguez offered to try the
case without a second AUSA, but AUSA Márquez-Marín objects to the Ruiz email and the Domínguez
offer as immaterial. PRDSMF ¶ 46. The Court disagrees and views management’s favorable
treatment of AUSA Márquez-Marín as material as its unfavorable treatment. The requirement of
viewing disputed facts in the light most favorable to the nonmovant does not require the Court to
strike undisputed facts favorable to the movant.
112
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we should have no consideration for any sentence less than life
imprisonment for him.
Stip. ¶ 61 (some alterations in original); DSMF ¶ 46; PRDSMF ¶ 46.
FAUSA
Domínguez volunteered to try the case and said she needed no second chair. Stip.
¶ 61; DSMF ¶ 46; PRDSMF ¶ 46.
On May 16, 2013, a new USAP entitled “Telework” was issued, and an updated
version was issued on August 20, 2013. Stip. ¶ 62; DSMF ¶ 47; PRDSMF ¶ 47. On
May 31, 2013, Officer López informed AUSA Márquez-Marín about teleworking in an
email and volunteered to help her “submit a package” for telework. Stip. ¶ 63; DSMF
¶ 48; PRDSMF ¶ 48.
On
February
21,
2013,
as
AUSA
Márquez-Marín
was
undergoing
chemotherapy, she applied for a supervisory position in the USAO’s Narcotics Unit
that had been announced. Stip. ¶ 64; DSMF ¶ 49; PRDSMF ¶ 49. In late February
2013 or sometime in March 2013, AUSA Márquez-Marín was interviewed for the
position. Stip. ¶ 64; DSMF ¶ 49; PRDSMF ¶ 49. The SUSA position, however, was
awarded to another AUSA, Myriam Fernández. DSMF ¶ 49; PRDSMF ¶ 49.
Several months later, in early May 2013, AUSA Márquez-Marín learned about
a new supervisory vacancy in the USAO’s Narcotics Unit. Stip. ¶ 66; DSMF ¶ 51;
PRDSMF ¶ 51. She applied and again she was interviewed for this position. Stip.
¶ 66; DSMF ¶ 51; PRDSMF ¶ 51. AUSA Hernández was selected for the position.
Stip. ¶ 67; DSMF ¶ 51; PRDSMF ¶ 51. During her interview for one of the two
supervisory positions in the spring of 2013, AUSA Márquez-Marín complained to
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United States Attorney Rodríguez that her salary was too low. 115 Stip. ¶ 68; DSMF
¶ 52; PRDSMF ¶ 52. According to AUSA Márquez-Marín, United States Attorney
Rodríguez responded that other similarly situated AUSAs were similarly paid. Stip.
¶ 68; DSMF ¶ 52; PRDSMF ¶ 52.
In late March 2013, then AUSA José Capó was appointed supervisor of the
Violent Crimes Unit in place of SUSA Vázquez, who was to retire on April 6, 2013.
Stip. ¶ 69. SUSA Capó became AUSA Márquez-Marín’s supervisor and he assigned
her cases. Stip. ¶ 69; DSMF ¶ 53; PRDSMF ¶ 53. AUSA Márquez-Marín testified
that when SUSA Capó became her supervisor in 2013, he assigned her a death
penalty case. 116 DSMF ¶ 58; PRDSMF ¶ 58. SUSA Capó, however, did not know that
AUSA Márquez-Marín was opposed to the death penalty and, even if he once knew,
he did not recall it when he assigned her the death penalty case. 117 DSMF ¶ 58;
PRDSMF ¶ 58.
On May 20, 2013, AUSA Márquez-Marín emailed SUSA Capó that she was not
feeling well and would stay home. 118 Stip. ¶ 70; DSMF ¶ 54; PRDSMF ¶ 54. SUSA
The DOJ’s begins its paragraph fifty-two with “[AUSA ]Márquez[-Marín] claims.” DSMF ¶ 52.
AUSA Márquez-Marín objects to the implication that this statement was a claim and not what she in
fact said. PRDSMF ¶ 52. The Court agrees with AUSA Márquez-Marín for the purposes of this
summary judgement motion and omitted the phrase.
116
The DOJ begins its paragraph fifty-eight with “[AUSA ]Márquez[-Marín] claims.” DSMF ¶ 58.
AUSA Márquez-Marín objects to the implication that her testimony was merely a claim since it is
entitled to be credited as true for summary judgment purposes. PRDSMF ¶ 58. The Court agrees
with AUSA Márquez-Marín and changed the word from claims to testified.
117
The parties dispute what precisely SUSA Capó said regarding his knowledge of AUSA
Márquez-Marín’s opposition to the death penalty. See DSMF ¶ 58; PRDSMF ¶ 58. The Court included
AUSA Márquez-Marín’s version since it is required to view disputed facts in the light most favorable
to AUSA Márquez-Marín.
118
In its paragraph fifty-four, the DOJ prefaces a series of facts as evidence that it “supported
[AUSA] Márquez[-Marín] after [her] appointment, as she completed her chemotherapy regimen.”
DSMF ¶ 54. AUSA Márquez-Marín objects to the preface, the Court agrees with AUSA MárquezMarín, and the Court struck this portion of the paragraph. PRDSMF ¶ 54. AUSA Márquez-Marín
115
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Capó responded that this was not a problem. Stip. ¶ 70; DSMF ¶ 54; PRDSMF ¶ 54.
On May 27, 2013, AUSA Márquez-Marín emailed SUSA Capó and said she was sick
and needed coverage. Stip. ¶ 71; DSMF ¶ 54; PRDSMF ¶ 54. When she did not hear
back from him, she wrote to Chief Ruiz, who said he would take care of the matter
and to get well soon. Stip. ¶ 71; DSMF ¶ 54; PRDSMF ¶ 54. The next day, SUSA
Capó responded to AUSA Márquez-Marín, stating that his phone had not been
working and that he hoped she was feeling better. Stip. ¶ 71; DSMF ¶ 54; PRDSMF
¶ 54. On May 29, 2013, AUSA Márquez-Marín wrote to Chief Ruiz and SUSA Capó
and said she could not go to work the next day. Stip. ¶ 72; DSMF ¶ 54; PRDSMF
¶ 54. SUSA Capó responded, “We hope you get well soon!” Stip. ¶ 72; DSMF ¶ 54;
PRDSMF ¶ 54.
In June 2013, United States Attorney Rodríguez appointed AUSA MárquezMarín to be the USAO’s environmental crimes coordinator. Stip. ¶ 73; DSMF ¶ 56;
PRDSMF ¶ 56. This was not a supervisory position. Stip. ¶ 73; DSMF ¶ 56; PRDSMF
¶ 56. On July 10, 2013, AUSA Márquez-Marín wrote to SUSA Capó that she had a
cold, felt bad, and had to go home. 119 Stip. ¶ 74; DSMF ¶ 55; PRDSMF ¶ 55. SUSA
Capó said okay. Stip. ¶ 74; DSMF ¶ 55; PRDSMF ¶ 55. On July 25, 2013, AUSA
also objects to the facts in paragraph fifty-four as immaterial. PRDSMF ¶ 54. The Court disagrees
and views these facts as some evidence that the DOJ was not discriminating against AUSA MárquezMarín since it accommodated her during her medical treatment, so the Court rejects this objection.
119
In its paragraph fifty-four, the DOJ prefaces two facts as evidence that “[e]ven after [AUSA]
Márquez[-Marín] finished chemotherapy, [SUSA] Capó’s support continued.” DSMF ¶ 55. AUSA
Márquez-Marín objects to the preface, the Court agrees with AUSA Márquez-Marín, and the Court
struck this portion of the paragraph. PRDSMF ¶ 55. AUSA Márquez-Marín also objects to the facts
in paragraph fifty-five as immaterial. PRDSMF 55. The Court disagrees and views these facts as
some evidence that the DOJ was not discriminating against AUSA Márquez-Marín since it
accommodated her time-off requests, so the Court rejects this objection.
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Márquez-Marín wrote to SUSA Capó that she was not feeling well and would prepare
a leave request the next day. Stip. ¶ 75. SUSA Capó said okay. Stip. ¶ 75. On
August 12, 2013, AUSA Márquez-Marín corresponded by email with Howard
Stewart, an AUSA with DOJ’s Environmental and Natural Resources Division. 120
Stip. ¶ 76; DSMF ¶ 57; PRDSMF ¶ 57.
AUSAs Márquez-Marín and Stewart
exchanged numerous emails, some of which AUSA Márquez-Marín forwarded to then
Appellate Division Chief Pérez. Stip. ¶ 76; DSMF ¶ 57; PRDSMF ¶ 57. On September
11, 2013, SUSA Capó wrote to Officer López and USAO Administrative Officer Lisa
Western to nominate AUSA Márquez-Marín for a time-off award for her high-quality
performance during a case. Stip. ¶ 77; DSMF ¶ 55; PRDSMF ¶ 55. In late 2013,
when Chief Ruiz reassigned the cases of AUSA Hector Ramírez, who was to become
Chief of the USAO’s Civil Division, AUSA Márquez-Marín received AUSA Ramírez’s
environmental cases. DSMF ¶ 56; PRDSMF ¶ 56. Other AUSAs received AUSA
Ramírez’s non-environmental cases. DSMF ¶ 56; PRDSMF ¶ 56.
On January 27, 2014, AUSA Márquez-Marín emailed SUSA Capó that she was
sick and would send him a leave request. Stip. ¶ 78. SUSA Capó said okay. Stip.
¶ 78. AUSA Márquez-Marín was planning to have surgery on February 18, 2014, to
correct a hernia on the site of the incisions of one of her earlier surgeries. Stip. ¶ 79;
DSMF ¶ 59; PRDSMF ¶ 59. On February 6, 2014, AUSA Márquez-Marín emailed
Officer López, copying SUSA Capó, asking to work from home during her recovery.
AUSA Márquez-Marín objects to the DOJ’s paragraph fifty-seven as immaterial. PRDSMF
¶ 57. The Court agrees with AUSA Márquez-Marín that its materiality, without more, seems
marginal. However, rather than excluding the paragraph, the Court included it in the recitation of
facts to be given such weight as is appropriate.
120
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Stip. ¶ 80; DSMF ¶ 60; PRDSMF ¶ 60. AUSA Márquez-Marín noted that she had
already mentioned this to SUSA Capó and he had agreed. Stip. ¶ 80; DSMF ¶ 60;
PRDSMF ¶ 60. The next day, Officer López sent AUSA Márquez-Marín a USAP that
explained the telework process and told her to submit three forms: (1) an FWO
request form, (2) an FWO memorandum of understanding, and (3) a DOJ Telework
Agreement form. Stip. ¶ 81; DSMF ¶ 60; PRDSMF ¶ 60. The last of these documents,
when signed by AUSA Márquez-Marín, stated that telework was to be a “short period
of time from February 24 up to an[d] including March 10, 2014.” Stip. ¶ 81 (alteration
in original); DSMF ¶ 60; PRDSMF ¶ 60. It also provided that AUSA Márquez-Marín’s
working hours would be from 8:30 a.m. to 5:30 p.m. Stip. ¶ 81; DSMF ¶ 60; PRDSMF
¶ 60.
SUSA Capó went to the executive office suite at the USAO, where he
recommended to United States Attorney Rodríguez that AUSA Márquez-Marín be
allowed to work from home as she recovered from her surgery. Stip. ¶ 83; DSMF
¶ 61; PRDSMF ¶ 61. FAUSA Domínguez also advocated on behalf of AUSA MárquezMarín. DSMF ¶ 61; PRDSMF ¶ 61. United States Attorney Rodríguez approved
AUSA Márquez-Marín’s telework request. Stip. ¶ 82; DSMF ¶ 62; PRDSMF ¶ 62.
United States Attorney Rodríguez and FAUSA Domínguez directed Appellate
Division Chief Pérez to give AUSA Márquez-Marín work that she could accomplish
from home. DSMF ¶ 62; PRDSMF ¶ 62. United States Attorney Rodríguez also told
Chief Pérez to assign AUSA Márquez-Marín “not very complicated stuff” so that it
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would be easier for her as she recovered. 121 DSMF ¶ 62; PRDSMF ¶ 62. Although
Chief Pérez thought it was “very intelligent and considerate on [United States
Attorney Rodríguez’s] part to do something like that,” he also said that AUSA
Márquez-Marín could “handle more difficult stuff” and he in fact provided her with
more “important” cases due to the “implications” for the office. 122
DSMF ¶ 62;
PRDSMF ¶ 62.
On February 11, 2014, AUSA Márquez-Marín sent an email to SUSA Capó
with a copy sent to her legal assistant, Alexis Ruiz, to which she attached her calendar
for the period February 18 to March 10, 2014, including the hearings which she would
not be able to attend during the period she would be recovering from surgery and
teleworking from her home. Stip. ¶ 84; PSAMF ¶ 140; DRPSAMF ¶ 140; DSMF ¶ 63;
PRDSMF ¶ 63. ASUA Márquez-Marín had been on duty shortly before she had the
surgery, which meant that she had been assigned new cases which had come in
shortly before her anticipated leave for medical reasons. PSAMF ¶ 141; DRPSAMF
¶ 141. Before leaving for her surgery, in order to assure coverage of her cases in her
absence, AUSA Márquez-Marín asked SUSA Capó to reassign the cases which had
just been opened while she was on duty. 123 PSAMF ¶ 142; DRPSAMF ¶ 142; DSMF
The DOJ quotes United States Attorney Rodríguez as saying that AUSA Márquez-Marín
should be given “not very complicated stuff” and AUSA Márquez-Marín objects, saying that the correct
phrase is not to assign “too complex cases.” DSMF ¶ 62; PRDSMF ¶ 62 (citing Decl. of Hilda Hudson,
Attach. 1 at 292 (ECF No. 102)). The Court could not find the phrase AUSA Márquez-Marín quotes in
the cited record and therefore used the DOJ’s quoted phrase since it is supported by the DOJ’s citation.
The Court does not view the difference between the two phrases as material.
122
AUSA Márquez-Marín adds facts to clarify Chief Pérez’s view. PRDSMF ¶ 62. In accordance
with its obligation to view the facts in the light most favorable to AUSA Márquez-Marín, the Court
included those facts.
123
AUSA Márquez-Marín interposes a qualified response to the first sentence of the DOJ’s
paragraph sixty-four, clarifying that she only requested reassignment for her new cases, not all her
121
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¶ 64; PRDSMF ¶ 64. For a period of an entire month, SUSA Capó refused to reassign
any of her cases or to assign other AUSAs to monitor them. 124 PSAMF ¶ 143;
DRPSAMF ¶ 143; DSMF ¶ 64; PRDSMF ¶ 64. SUSA Capó told AUSA MárquezMarín that her legal assistant would help with her cases. DSMF ¶ 64; PRDSMF ¶ 64.
SUSA Capó also told her not to worry about her Violent Crimes Unit cases and AUSA
Márquez-Marín admitted that SUSA Capó could have mentioned this. DSMF ¶ 64;
PRDSMF ¶ 64. However, AUSA Márquez-Marín did not believe that SUSA Capó was
acting in a way that was empathetic or helpful. 125 DSMF ¶ 64; PRDSMF ¶ 64.
On Tuesday, February 18, 2014, AUSA Márquez-Marín had surgery to correct
a post-operative hernia. Stip. ¶ 85; PSAMF ¶ 136; DRPSAMF ¶ 136; DSMF ¶ 65;
PRDSMF ¶ 65. She asked the USAO to use up what little sick leave she had left in
order to cover her recovery for the remainder of the week, until Friday, February 21,
2014. 126 PSAMF ¶ 137; DRPSAMF ¶ 137. After the surgery, AUSA Márquez-Marín
cases. PRDSMF ¶ 64. Given the DOJ’s admission of AUSA Márquez-Marín’s additional paragraph
one hundred and forty-two, the Court finds this point moot; the facts already make clear that she only
asked for reassignment of the cases that had just been opened.
124
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred forty-three, contending that SUSA Capó took other steps to ensure coverage during her
absence. DRPSAMF ¶ 143. As the DOJ’s additional facts do not contradict AUSA Márquez-Marín’s
additional paragraph one hundred forty-three, the Court declines to insert them.
AUSA Márquez-Marín interposes a qualified response to the second and third sentences of the
DOJ’s paragraph sixty-four on completeness grounds. PRDSMF ¶ 64. The Court does not view any of
the proposed added facts as necessary to clarify the paragraph and does not find them to be
contradictory, so the Court rejects this qualification.
125
AUSA Márquez-Marín interposes a qualified response to the fourth and fifth sentences of the
DOJ’s paragraph sixty-four, arguing that they must be put in the proper context. PRDSMF ¶ 64. The
Court does not find all the proposed context relevant. However, in accordance with its obligation to
view contested matters in the light most favorable to AUSA Márquez-Marín, the Court added this
sentence to clarify AUSA Márquez-Marín’s reaction to SUSA Capó’s actions. PRDSMF ¶ 64.
126
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred thirty-seven, asserting that AUSA Márquez-Marín did not in fact exhaust her sick leave
balance that week. DRPSMAF ¶ 37. The Court overrules the DOJ’s qualified response because AUSA
Márquez-Marín’s additional paragraph one hundred thirty-seven does not state or imply that she used
up her sick leave that week.
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took sick leave for this period through Friday, February 21, 2014 (part of pay period
three). Stip. ¶ 85; DSMF ¶ 65; PRDSMF ¶ 65. At that time, AUSA Márquez-Marín
expected to be back in the office by March 10, 2014. PSAMF ¶ 138; DRPSAMF ¶ 138.
To cover the time she expected to be out of the office, AUSA Márquez-Marín used the
Telework Agreement she had requested and obtained from Officer López to work from
home while recuperating after Friday, February 21, 2014. 127
PSAMF ¶ 139;
DRPSAMF ¶ 139; Stip. ¶¶ 81-82. On Monday, February 24, 2014 (the beginning of
pay period four), AUSA Márquez-Marín was within her teleworking period. DSMF
¶ 65; PRDSMF ¶ 65.
The surgery turned out to be more complicated than expected, and her recovery
time was extended until at least March 30. PSAMF ¶ 144; DRPSAMF ¶ 144. AUSA
Márquez-Marín then requested additional time to complete work at home, pursuant
to a new Telework Agreement. 128 PSAMF ¶ 145; DRPSAMF ¶ 145. The USAO
granted her request. PSAMF ¶ 145; DRPSAMF ¶ 145. Upon SUSA Capó’s request,
AUSA Nicholas Cannon covered a hearing for AUSA Márquez-Marín. 129 DSMF ¶ 67;
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred thirty-nine, including the actual dates that the Telework Agreement covered. DRPSAMF
¶ 139. As the information does not contradict AUSA Márquez-Marín’s additional statement, the Court
did not insert it.
128
The DOJ interposes a qualified response, noting that although it agrees that AUSA MárquezMarín requested additional time to work at home and her request was granted, the DOJ does not
believe this was done pursuant to a new Telework Agreement. DRPSAMF ¶ 145. Even though AUSA
Márquez-Marín’s sworn statement does not expressly refer to a new Telework Agreement, the Court
infers that if she applied for additional time teleworking at home and if DOJ followed its own
procedures in granting the request, it would have been pursuant to a new Telework Agreement. The
Court does not accept the DOJ’s qualified response because it is required to view conflicting evidence
in the light most favorable to AUSA Márquez-Marín.
129
The DOJ’s paragraph sixty-seven also states that “it was not just [SUSA] Capó who assisted.”
DSMF ¶ 67. AUSA Márquez-Marín admits that AUSA Cannon covered the hearings mentioned in the
DOJ’s paragraph sixty-seven but denies that covering these hearings “is probative of either [AUSA]
Cannon or [SUSA] Capó ‘assisting’” her because “[c]overing hearings for people who are out sick is
127
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PRDSMF ¶ 67. When two legal assistants emailed to find additional coverage for
AUSA Márquez-Marín’s cases, AUSA Cannon agreed to cover two hearings. Stip.
¶ 86; DSMF ¶ 67; PRDSMF ¶ 67. On March 3, 2014, SUSA Capó approved sick leave
for AUSA Márquez-Marín for the dates February 24 through February 28, 2014. Stip.
¶ 87.
At some point between February 24 and March 3, 2014, Officer López, Chief
Pérez, and USAO Budget Officer Damaris Morales had a conversation in Officer
López’s office. DSMF ¶ 69; PRDSMF ¶ 69. Based on her understanding of what was
said and wanting to ensure that AUSA Márquez-Marín was paid on time when
timesheets were being certified, Officer Morales asked a student clerk to prepare a
sick leave request for AUSA Márquez-Marín for February 24 through February 28,
2014. DSMF ¶ 69; PRDSMF ¶ 69. The prepared request was forwarded to SUSA
Capó and he approved it on March 3, 2014. DSMF ¶ 69; PRDSMF ¶ 69.
On March 7, 2014—the day before the end of pay period four (the pay period
encompassing the dates February 23 through March 8)—AUSA Márquez-Marín
asked Officer Morales for help with validating her time and attendance sheet (T&A).
DSMF ¶ 70; PRDSMF ¶ 70. Officer Morales, believing that AUSA Márquez-Marín
wanted help with validating her T&A for pay period four and believing that AUSA
Márquez-Marín wanted her to validate the T&A on her behalf, agreed. DSMF ¶ 70;
PRDSMF ¶ 70.
commonly done.” PRDSMF ¶ 67. The Court, viewing the evidence in the light most favorable to AUSA
Márquez-Marín, agrees with her and struck this portion of the paragraph.
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On March 12, 2014, SUSA Capó wrote AUSA Márquez-Marín. Stip. ¶ 88;
DSMF ¶ 71; PRDSMF ¶ 71.
SUSA Capó was responsible for certifying AUSA
Márquez-Marín’s T&A for pay period four. Stip. ¶ 88; DSMF ¶ 71; PRDSMF ¶ 71.
SUSA Capó asked AUSA Márquez-Marín to send him a brief summary of the work
she performed “during the March 3-7 (40 hour) week.” Stip. ¶ 88; DSMF ¶ 71;
PRDSMF ¶ 71. AUSA Márquez-Marín responded in several emails on March 12 and
March 13, 2014. 130 Stip. ¶ 89; DSMF ¶ 72; PRDSMF ¶ 72. She noted in part that
her doctor told her on March 6, 2014, that she would need to stay home until March
30, 2014. DSMF ¶ 72; PRDSMF ¶ 72. Also, upset that SUSA Capó had continued in
his refusal to reassign her cases, she wrote in an email sent to SUSA Capó on March
12, 2014:
Since . . . I take my work very seriously I have been worried about the
developments of the cases [assigned before I left]. It was exactly to avoid this
situation, that I suggested to you, before I left for surgery, that it was better to
assign[] those cases to [others]. I understood when you decided to leave the
cases in my inventory because I was hoping to return to the office on March 10
and . . . my assistant . . . is very competent.
DSMF ¶ 72; PRDSMF ¶ 72; PSAMF ¶ 147; DRPSAMF ¶ 147. Nevertheless, she was
“worried about the developments of the cases” and about the deadlines expiring,
especially since her assistant was not a lawyer or an AUSA and since her assistant
and his backup would be out at training. DSMF ¶ 72; PRDSMF ¶ 72; PSAMF ¶ 147;
DRPSAMF ¶ 147. She asked SUSA Capó to at least assign someone to monitor those
cases until she returned, even if he insisted on leaving those cases assigned to her.
AUSA Márquez-Marín seeks to clarify that although paragraph eighty-nine of the Joint
Stipulation said there were several emails, there was in fact only one. PRDSMF ¶ 72. Because the
Joint Stipulation trumps the statements of fact, the Court did not change the paragraph.
130
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DSMF ¶ 72; PRDSMF ¶ 72. She also told SUSA Capó that she was going to see her
physician on March 21, 2014, and would see if she could return before March 30,
2014. 131 PSAMF ¶ 148; DRPSAMF ¶ 148.
Upon receipt of AUSA Márquez-Marín’s messages, SUSA Capó realized that
AUSA Márquez-Marín would be out for longer than anticipated and he was not
certain when she would be coming back. DSMF ¶ 73; PRDSMF ¶ 73. With his
supervisory responsibilities, he could not continue to monitor AUSA MárquezMarín’s cases as he had been doing. DSMF ¶ 73; PRDSMF ¶ 73. Therefore, he
decided to assign co-counsel. DSMF ¶ 73; PRDSMF ¶ 73. On March 17, 2014, a
month after the original request, SUSA Capó first began assigning co-counsels for the
new cases AUSA Márquez-Marín had been given right before her initial sick leave in
mid-February. PSAMF ¶ 149; DRPSAMF ¶ 149; DSMF ¶ 73; PRDSMF ¶ 73. For
example, in a series of emails on March 17, 2014, SUSA Capó assigned SAUSA
Vanessa Bonano as co-counsel in three of AUSA Márquez-Marín’s cases, AUSA
Evelyn Canáls as co-counsel in three of her cases, SAUSA Normary Figueroa as cocounsel in two of her cases, and AUSA Cannon as co-counsel in five of her cases. Stip.
¶ 90; DSMF ¶ 73; PRDSMF ¶ 73. AUSA Márquez-Marín thanked SUSA Capó as to
at least one of these assignments. DSMF ¶ 73; PRDSMF ¶ 73.
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred and forty-eight, noting that AUSA Márquez-Marín did not write that she “hoped to” return
to work before March 30, but that she would “see if she could return before March 30.” DRPSAMF
¶ 148. Although the Court is not sure there is a material difference between “hoped to” and “see if I
can return,” see PSAMF, Attach. 3, Ex S: March 12, 2014 Email from Márquez to Capó, the Court
reviewed the cited portion of the record and inserted the language of the March 12, 2014, MárquezMarín email in place of her paraphrase.
131
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Although she was still in considerable pain, AUSA Márquez-Marín continued
to work from home since she had no additional sick leave and, as a single mother,
could not afford to be without an income. 132 PSAMF ¶ 146; DRPSAMF ¶ 146.
SUSA Capó testified that at some point when AUSA Márquez-Marín was out
of the office, he took steps to ensure coverage of her Violent Crimes Unit cases. 133
DSMF ¶ 66; PRDSMF ¶ 66. He testified:
I personally decided to check on all her cases. I handled all of her cases
during her time out on flexible work plan [telework]. So every day, I
would go in, look at the calendar to make sure that there [were] no court
hearings. I would ask her legal assistant . . . every afternoon at 5:00
p.m. whether anything in the calendar reflected that she had a hearing.
I would personally go into each and every single case that [AUSA]
Márquez[-Marín] had to make sure that no deadlines were missed. And
in fact during that time I think I even had to call agents regarding the
cases to make sure that everything was on track. And I prepared
discovery packages in her cases during her absence.
DSMF ¶ 66 (some alterations in original); PRDSMF ¶ 66. SUSA Capó testified that
he took these steps to help AUSA Márquez-Marín and to ensure that she “did not
have to worry about [her cases] when she was out of the office.”
DSMF ¶ 66
(alteration in original); PRDSMF ¶ 66.
Despite SUSA Capó’s urging that she should not worry about her Violent
Crimes Unit cases, AUSA Márquez-Marín continued to be concerned. DSMF ¶ 68;
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred forty-six on the
ground that from the date she saw her doctor on March 6, 2014, until she returned to work on March
31, 2014, she in fact had sick leave. DRPSAMF ¶ 146. The Court declines to accept the DOJ’s denial
since it is required to view contested facts in the light most favorable to AUSA Márquez-Marín.
133
AUSA Márquez-Marín admits that this is what SUSA Capó said, but she argues that his
testimony was not credible and is out of context. PRDSMF ¶ 66. To respond to AUSA MárquezMarín’s concern, the Court altered the paragraph to note that SUSA Capó’s statements reflect his
testimony and that he took these steps at some point while AUSA Márquez-Marín was out of the office,
not necessarily the entire time.
132
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PRDSMF ¶ 68. AUSA Márquez-Marín asked Officer López to raise the issue of case
assignment with SUSA Capó because she was concerned that the USAO would miss
the indictment deadline on the new cases she was assigned shortly before surgery. 134
DSMF ¶ 68; PRDSMF ¶ 68. Officer López spoke with SUSA Capó and she told AUSA
Márquez-Marín that SUSA Capó said not to worry about her Violent Crimes Unit
cases and he would make sure everything was covered. DSMF ¶ 68; PRDSMF ¶ 68.
AUSA Márquez-Marín then contacted SUSA Capó, who told her that she was
expected to telework from 8:30 a.m. to 5:30 p.m. DSMF ¶ 68; PRDSMF ¶ 68 This
was contrary to what AUSA Márquez-Marín had previously understood; she thought
that she would be able to work at any time during the day so long as she put in enough
time. DSMF ¶ 68; PRDSMF ¶ 68. SUSA Capó again refused to reassign her cases or
assign co-counsel. DSMF ¶ 68; PRDSMF ¶ 68.
On March 12, 2014, the same day he wrote to AUSA Márquez-Marín, SUSA
Capó wrote to Appellate Division Chief Pérez questioning Chief Pérez’s verbal
certification of AUSA Márquez-Marín’s work:
I am in the process of certifying AUSA Márquez[-Marín]’s T&A and
would like to get your input regarding work performed by her for the
Appeals Unit between March 3-7, 2014. [Officer López] informed me
that you had verbally certified to her the facts that she had performed
work during that period (her T&A reflects that she worked 40 hours last
week). Your input would be of great assistance in allowing me to certify
her T&A. 135
AUSA Márquez-Marín interposes a series of qualified responses to the DOJ’s paragraph sixtyeight. PRDSMF ¶ 68. In accordance with its obligation to view contested facts in the light most
favorable to the nonmovant, the Court amended the DOJ’s paragraph sixty-eight in an effort to capture
AUSA Márquez-Marín’s extensive qualifications, including facts related to her reason for being
concerned about case assignment and her understanding of her work schedule while teleworking. See
PRDSMF ¶ 68.
135
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred and sixty, contending that in doing so, SUSA Capó was properly documenting her time and
134
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Stip. ¶ 91; DSMF ¶ 74; PRDSMF ¶ 74; PSAMF ¶ 160; DRPSAMF ¶ 160. Chief Pérez
responded by email the next day. Stip. ¶ 92. Chief Pérez testified that he was not
entirely sure what SUSA Capó was asking and assumed that he was raising whether
AUSA Márquez-Marín’s hours were allotted on a daily basis. DSMF ¶ 75; PRDSMF
¶ 75. Therefore, after noting that AUSA Márquez-Marín had been working on two
appeals and was willing to work on a third, he emailed in response:
How . . . the working hours [are] to be allotted on a daily basis—which
seems to be your real concern—[it] is very difficult to [be] precise. This
is even more difficult when one has been under excruciating pain, due
to a certified serious medical condition. I must say, however, that
working on two appeals justifies the 40 hours of work. I must also
mention that AUSA Márquez[-Marín] informed me that she was trying
to manage from a distance the cases that you had assigned to her.
DSMF ¶ 75; PRDSMF ¶ 75; PSAMF ¶ 161; DRPSAMF ¶ 161.
Having been made aware of this exchange, on March 14, 2014, FAUSA
Domínguez emailed Officer López (copying others). Stip. ¶ 93; DSMF ¶ 76; PRDSMF
¶ 76. She stated in her email that management needed to implement a system
whereby AUSA Márquez-Marín would report to Chief Pérez and SUSA Capó on a
weekly basis the number of hours per day she was working and the tasks
accomplished. DSMF ¶ 76; PRDSMF ¶ 76. FAUSA Domínguez noted that AUSA
Márquez-Marín had not completed any of the briefs assigned to her, and it was
impossible for SUSA Capó or Chief Pérez to certify her time without some reporting
attendance. DRPSAMF ¶ 160. The Court declines to include the DOJ’s qualified response because it
proffers why SUSA Capó did so but does not dispute that he did so. Also the Court rejects the qualified
response because the Court is required to view contested facts in the light most favorable to AUSA
Márquez-Marín.
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from her. DSMF ¶ 76; PRDSMF ¶ 76. FAUSA Domínguez also convened a meeting
among Officer López, SUSA Capó, Chief Pérez, and Officer Western to discuss the
issue. DSMF ¶ 76; PRDSMF ¶ 76. At the meeting, Chief Pérez called for some
flexibility in AUSA Márquez-Marín’s telework arrangements, given her medical
condition.
DSMF ¶ 76; PRDSMF ¶ 76. The participants agreed that this was
appropriate. DSMF ¶ 76; PRDSMF ¶ 76.
On March 21, 2014, when AUSA Márquez-Marín met with her physician, she
was told that she needed additional recovery time, meaning that she had to request
additional time teleworking. 136 PSAMF ¶ 150; DRPSAMF ¶ 150. On the same day,
FAUSA Domínguez emailed AUSA Márquez-Marín to communicate the decision of
the group that had met to discuss her status and she stated in part: “We wish you a
speedy recovery, and hope that you will be able to return to the office soon. You are
missed by all. God bless.” 137 Stip. ¶ 94; DSMF ¶ 76; PRDSMF ¶ 76.
During the entire period of her teleworking assignment, AUSA MárquezMarín was assigned to work on appeals under the direct supervision of Chief Pérez,
and Chief Pérez assigned her several appeals during that period. 138 PSAMF ¶ 151;
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred and fifty. DRPSAMF ¶ 150. The DOJ notes that any request for teleworking after the March
21, 2014, appointment did not result in a new Telework Agreement. DRPSAMF ¶ 150. As AUSA
Márquez-Marín’s paragraph one hundred-fifty does not assert that her request resulted in a new
Telework Agreement, the Court declines to include DOJ’s response.
137
AUSA Márquez-Marín admits the DOJ’s paragraph seventy-six but notes that FAUSA
Domínguez’s statement that AUSA Márquez-Marín was “missed by all” and “God bless” does not mean
that the group actually felt this way. PRDSMF ¶ 76. The Court dismisses this comment because the
paragraph does not suggest the truth of the statement, but rather only that it was said.
138
The DOJ admits the majority of AUSA Márquez-Marín’s additional paragraph one hundred
and fifty-one but denies that Chief Pérez was AUSA Márquez-Marín’s supervisor during this period,
stating that SUSA Capó was her supervisor. DRPSAMF ¶ 151. As the Court is required to view
conflicting evidence in the light most favorable to AUSA Márquez-Marín, the Court declines to credit
the DOJ’s denial.
136
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DRPSAMF ¶ 151. By March 12, 2014, AUSA Márquez-Marín had already written
two drafts of two appeal briefs, United States v. Figueroa-Cruz, docket number 131526, and United States v. Santiago Burgos, docket number 13-2457, and was in the
process of integrating comments by Chief Pérez. PSAMF ¶ 152; DRPSAMF ¶ 152.
k.
Carmen Márquez-Marín’s March 31, 2014, Return to
Work, Performance Evaluation, and Subsequent
Events
On March 31, 2014, AUSA Márquez-Marín returned to the USAO. 139 Stip.
¶ 95; PSAMF ¶ 153; DRPSAMF ¶ 153; DSMF ¶ 77; PRDSMF ¶ 77. The following
day, she met with SUSA Capó to review the status of her cases, after which he
provided her with her evaluation for her work in 2013. Stip. ¶ 95; DSMF ¶ 77;
PRDSMF ¶ 77.
Within a few days, AUSA Márquez-Marín was hit with two difficult situations:
(1) being told that SUSA Capó had certified as “sick leave” some of the time she had
been teleworking, which she testified caused an “audit” against her for taking leave
with a negative balance; and (2) a lower evaluation by SUSA Capó on the productivity
element. 140 PSAMF ¶ 154; DRPSAMF ¶ 154.
In her additional paragraph one hundred and fifty-three, AUSA Márquez-Marín states she
returned to work at the USAO on April 1, 2014. PSAMF ¶ 153. The DOJ denies the assertion, stating
that she returned to work on March 31, 2014. DRPSAMF ¶ 153. The parties stipulate that AUSA
Márquez-Marín returned to work on March 31, 2014. Stip. ¶ 153. The Joint Stipulation controls over
the statements of fact and the Court therefore used March 31, 2014, as the return to work date.
140
The DOJ admits in part and denies in part AUSA Márquez-Marín’s additional paragraph one
hundred and fifty-four. DRPSAMF ¶ 154. The DOJ objects to the portions of the paragraph which
state that her taking sick leave caused the audit and that she was told about the issue rather than
learning through the computer. DRPSAMF ¶ 154. As AUSA Márquez-Marín’s statement is
corroborated by her sworn declaration, the Court rejects the DOJ’s denial because it is required to
view conflicting evidence in the light most favorable to AUSA Márquez-Marín. The Court altered the
paragraph slightly to clarify that the causation element is based on AUSA Márquez-Marín’s testimony.
The DOJ also contests AUSA Márquez-Marín’s view of the circumstances surrounding her lower
139
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On April 10, 2014, Budget Officer Morales informed AUSA Márquez-Marín
that the “audit was now complete” and that there was a “discrepancy” with respect to
her leave, and Officer Morales stated that AUSA Márquez-Marín’s annual leave
would have to be “readjusted” to cover the purported “deficit” for extra hours claimed
as sick time. PSAMF ¶ 155; DRPSAMF ¶ 155. AUSA Márquez-Marín had no idea
what Officer Morales was referring to when she mentioned the “audit.” PSAMF
¶ 156; DRPSAMF ¶ 156. She said to Officer Morales, “[W]hat are you talking about?
I mean, like I don’t understand. I only used one week of sick leave. How can you say
that I used more than I had?” PSAMF ¶ 156; DRPSAMF ¶ 156. Officer Morales said,
“Well, we put you on sick leave that week.” PSAMF ¶ 157; DRPSAMF ¶ 157. AUSA
Márquez-Marín later found out that SUSA Capó had certified that AUSA MárquezMarín was on (unaccrued) sick leave at a time when he plainly knew that she was
teleworking. 141 PSAMF ¶ 158; DRPSAMF ¶ 158. This meant she would have been
without income for a period of time. 142 PSAMF ¶ 159; DRPSAMF ¶ 159.
productivity rating. DRPSAMF ¶ 154. For the same reason, the Court rejects the DOJ’s view of these
contested facts and accepts AUSA Márquez-Marín’s view.
141
The DOJ admits that SUSA Capó approved the sick leave request, but it interposes a qualified
response that the fact that someone is teleworking does not prevent the employee from taking sick
leave. DRPSAMF ¶ 158. The Court declines to accept the DOJ’s qualified response because it is nonresponsive to whether AUSA Márquez-Marín’s additional paragraph one hundred and fifty-eight is
itself accurate.
142
In her additional paragraph one hundred and fifty-nine, AUSA Márquez-Marín states that the
treatment of her teleworking time as sick leave would have caused her to go without income for a
period of time. PSAMF ¶ 159. The DOJ denies this allegation, stating that it would have affected her
annual leave, which is what Officer Morales told AUSA Márquez-Marín. DRPSAMF ¶ 159. Based on
AUSA Márquez-Marín’s additional paragraph one hundred and fifty-five, the Court is skeptical that
the DOJ would have made deductions from AUSA Márquez-Marín’s salary, so that she would have
been without income. See PSAMF ¶ 155. But the Court is required to view contested facts in the light
most favorable to AUSA Márquez-Marín and therefore included the statement.
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The second major problem AUSA Márquez-Marín encountered upon her return
to work was when, on April 1, 2014, she met with SUSA Capó to review the status of
her cases, and he handed her his evaluation for her work in 2013. 143 Stip. ¶ 95;
PSAMF ¶ 162; DRPSAMF ¶ 162; DSMF ¶ 77; PRDSMF ¶ 77. AUSA Márquez-Marín
received an overall “outstanding” rating, with “outstanding” ratings in three
categories and “successful” ratings in two categories.
Stip. ¶ 95; DSMF ¶ 77;
PRDSMF ¶ 77. One of the “successful” ratings was for productivity. Stip. ¶ 95; DSMF
¶ 77; PRSAMF ¶ 77. This rating was the middle grade and was down from the
“outstanding” AUSA Márquez-Marín had received the year before. 144 PSAMF ¶ 162;
DRPSAMF ¶ 162. Both SUSA Capó and Chief Ruiz had signed the evaluation. Stip.
¶ 95; DSMF ¶ 77; PRDSMF ¶ 77.
USAP 3-4.430.001 is titled “Performance Evaluation Handbook.” Stip. ¶ 96.
SUSA Capó told AUSA Márquez-Marín that she was an excellent prosecutor but
during the year 2013, she “could have done more.” PSAMF ¶ 163; DRPSAMF ¶ 163.
AUSA Márquez-Marín was upset by the “successful” productivity rating even though
The DOJ denies the portion of AUSA Márquez-Marín’s additional paragraph one hundred and
sixty-two that states the meeting happened on April 2, 2014. DRPSAMF ¶ 162. The parties stipulate
that AUSA Márquez-Marín returned to work on March 31, 2014. Stip. ¶ 153. The Joint Stipulation
controls over the statements of fact and the Court therefore used March 31, 2014, as the return to
work date. This means that the date of the meeting with SUSA Capó is deemed April 1, not April 2.
The DOJ denies that the productivity evaluation was a “major problem” for AUSA MárquezMarín. DRPSAMF ¶ 162. The Court rejects the DOJ’s denial because it is required to view contested
facts in the light most favorable to AUSA Márquez-Marín.
144
The DOJ qualifies its response to AUSA Márquez-Marín’s additional paragraph one hundred
and sixty-two, asserting that a prior rating does not entitle an employee to the same rating the next
year. DRPSAMF ¶ 162. The Court rejects the DOJ’s qualified response because AUSA MárquezMarín’s additional paragraph does not state or imply that because an employee received a higher
rating one year she is entitled to receive the same rating in subsequent years.
143
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it had no effect on her overall rating. Stip. ¶ 97; DSMF ¶ 77; PRDSMF ¶ 77. She felt
she deserved an “outstanding” rating. Stip. ¶ 97; DSMF ¶ 77; PRDSMF ¶ 77.
Although he did not offer this explanation at the time, later in December 2014
during the EEO investigation, SUSA Capó explained how he evaluated AUSA
Márquez-Marín’s productivity. 145 DSMF ¶ 78; PRDSMF ¶ 78. He looked at AUSA
Márquez-Marín’s caseload at the time, as well as the number and complexity of the
cases she had indicted. DSMF ¶ 78; PRDSMF ¶ 78. He also looked at how long it
took these cases to come to an end “because one thing is indicting a case and the other
one is how fast you can actually finalize the case either through a plea via agreement
or through trial.” DSMF ¶ 78; PRDSMF ¶ 78. Moreover, although he attempted to
look at AUSAs individually (taking into account their level of experience and their
caseload), he noted that he “also ha[s] to take into account some sort of comparison
as to other AUSAs with similar experience or with less experience, how is it that their
job compares to what others are doing.” DSMF ¶ 78; PRDSMF ¶ 78. SUSA Capó
noted that to get an “outstanding” rating, one has to perform work deserving of special
recognition. DSMF ¶ 78; PRDSMF ¶ 78. Chief Ruiz expressed a similar sentiment.
DSMF ¶ 78; PRDSMF ¶ 78.
Applying these standards, SUSA Capó noted that AUSA Márquez-Marín had
about thirty cases with “probably 32, 33 defendants” that she had handled during the
AUSA Márquez-Marín interposes a qualified response, noting that SUSA Capó did not offer
this explanation at the time but rather in December 2014 when he presented a factual averment
during the EEO investigation. PRDSMF ¶ 78. The Court amended the statement accordingly. The
Court disregards AUSA Márquez-Marín’s further qualification regarding completeness because the
facts discussed are already in the record elsewhere. See PSAMF ¶ 163.
145
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entire year. 146 DSMF ¶ 79; PRDSMF ¶ 79. SUSA Capó clarified that his reference
to thirty-two or thirty-three defendants was the number of defendants charged
through indictments or informations. DSMF ¶ 79; PRDSMF ¶ 79. SUSA Capó
understood that AUSA Márquez-Marín was out for part of the year because of health
issues but stated that “based on the time she was here . . . her productivity levels
were . . . below all of the AUSAs within the Violent Crimes Unit and she at the time
was the most experienced AUSA within the [Unit].” DSMF ¶ 79 (alterations in
original); PRDSMF ¶ 79.
SUSA Capó also noted that AUSA Márquez-Marín was the environmental
crimes coordinator, and part of her job was to seek cases from the different agencies
involved in these issues. DSMF ¶ 79; PRDSMF ¶ 79. Given this duty, he was
surprised that her caseload was so light when she was supposed to be seeking cases
directly from other agencies. DSMF ¶ 79; PRDSMF ¶ 79. SUSA Capó further noticed
it took a long time for some of AUSA Márquez-Marín’s cases to actually be disposed
of, either through a plea agreement or through trial. DSMF ¶ 79; PRDSMF ¶ 79. He
stated he did not believe her work was deserving of special recognition. DSMF ¶ 79;
PRDSMF ¶ 79.
On April 2, 2014, AUSA Márquez-Marín requested reconsideration of the
evaluation by directing an extensive email to Chief Ruiz, providing a number of
AUSA Márquez-Marín admits the DOJ’s paragraph seventy-nine as an “adequate summary of
the justifications which [SUSA] Capó has provided for his decision” but states that “this does not mean
that these were, in fact, the reasons for his decisions.” PRDSMF ¶ 79. The Court disregards this
comment for the purposes of this summary judgment motion but altered the paragraph slightly to
clarify that SUSA Capó provided these reasons during a deposition.
146
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reasons why she believed that the evaluation on the productivity element was unfair
and copying United States Attorney Rodríguez and FAUSA Domínguez. Stip. ¶ 97;
PSAMF ¶ 165; DRPSAMF ¶ 165; DSMF ¶ 80; PRDSMF ¶ 80. AUSA Márquez-Marín
questioned the lower rating, noting that she had been working through significant
medical treatments and operations.
PSAMF ¶ 164; DRPSAMF ¶ 164.
She
complained that SUSA Capó had refused to assign co-counsel in her cases when she
was out of the office after her surgery and that he had refused to certify her hours
when she had been teleworking. Stip. ¶ 97; DSMF ¶ 80; PRDSMF ¶ 80. She took
note of the following: that SUSA Vázquez, not SUSA Capó, had been her supervisor
for the first three months of 2013, that she had more than two hundred defendants
in her inventory, that she had been in chemotherapy for the first five months with
her recovery just beginning at the end of June 2013, and that she had handled the
multi-defendant Lloréns Torres case, achieving pleas from every defendant. PSAMF
¶ 165; DRPSAMF ¶ 165. AUSA Márquez-Marín also stated that Chief Ruiz had
named her as the environmental crimes coordinator and that in that role she had
handled a multi-defendant investigation, which resulted in several indictments, and
the investigation of another major environmental case which was very high-profile in
Puerto Rico. PSAMF ¶ 165; DRPSAMF ¶ 165. Further, AUSA Márquez-Marín noted
that on November 3, she was in trial in a very contentious matter, accompanying
SAUSA Figueroa—who had never been on trial—for which she was commended by
FAUSA Domínguez, who told her the Chief Judge of the District of Puerto Rico had
told FAUSA Domínguez about the excellent job AUSA Márquez-Marín had done in
84
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that trial. PSAMF ¶ 166; DRPSAMF ¶ 166. AUSA Márquez-Marín added complaints
about her 2013 productivity rating, citing all of the work she had done while
undergoing chemotherapy and caring for her children. Stip. ¶ 97.
AUSA Márquez-Marín wrote in the email that based on these acts, she was
“starting to see an unnerving pattern of disparate treatment and retaliation” on the
part of SUSA Capó as evidenced by his lengthy delay in assigning co-counsel for her
cases during her absence from the office, all of which was creating “unnecessary stress
that without a doubt [wa]s making [her] recovery much more difficult.” Stip. ¶ 97;
PSAMF ¶ 167; DRPSAMF ¶ 167; DSMF ¶ 80; PRDSMF ¶ 80. She also wrote, “Since
I don’t know Mr. Cap[ó] on a personal level and my professional experience with him
has been limited, I can only conclude that his actions and attitudes towards me arise
from the fact that as everyone else in the office knows . . . I was reinstated by the
Court after prevailing on a trial for retaliatory actions from this Office.” Stip. ¶ 97;
DSMF ¶ 80; PRDSMF ¶ 80.
She affirmed her belief that these actions were
retaliatory for her prior EEO activity. PSAMF ¶ 164; DRPSAMF ¶ 164. AUSA
Márquez-Marín asked Chief Ruiz to reconsider not only her productivity rating but
all of SUSA Capó’s actions towards her, since she “kn[e]w they had to be known by
all upper management.” Stip. ¶ 97; PSAMF ¶ 164; DRPSAMF ¶ 164; DSMF ¶ 80;
PRDSMF ¶ 80. By this time, it was just a few months after SUSA Capó had seen
Specialist Reyes conversing with AUSA Márquez-Marín about his EEO concerns. 147
PSAMF ¶ 168; DRPSAMF ¶ 168.
The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred and sixty-eight.
DRPSAMF ¶ 168. The DOJ is troubled by the lack of specificity as to when the conversation between
147
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Upon receipt of this email, FAUSA Domínguez emailed Officer López, Chief
Ruiz, SUSA Capó, and Special Counsel Novas (and copied United States Attorney
Rodríguez). Stip. ¶ 98; DSMF ¶ 81; PRDSMF ¶ 81. FAUSA Domínguez wrote, “We
need to schedule a meeting to discuss [the email] tomorrow. These allegations cannot
go unanswered. [Chief Ruiz], as the reviewing official you will have to discuss the
ratings with [SUSA] Capó and make a final call. I am also concerned about the
allegations of disparate treatment and retaliation. I think the office has been more
than fair to [AUSA Márquez-Marín] in helping her deal with her situation.” Stip.
¶ 98; DSMF ¶ 81; PRDSMF ¶ 81.
The following day, April 3, 2014, Chief Ruiz wrote AUSA Márquez-Marín and
informed her that he intended to take a fresh look at her productivity rating. 148 Stip.
¶ 99; DSMF ¶ 82; PRDSMF ¶ 82.
Chief Ruiz asked her to provide him with
information about her cases—specifically (1) all criminal cases she had indicted
during the 2013 rating period, (2) all criminal trials in which she had participated
either as lead or second counsel, and (3) all grand jury investigations opened during
the rating period. DSMF ¶ 82; PRDSMF ¶ 82. Chief Ruiz attached several tables to
the email to assist her in this process. DSMF ¶ 82; PRDSMF ¶ 82. AUSA Márquez-
AUSA Márquez-Marín and Specialist Reyes took place. DRPSAMF ¶ 168. It also reiterates its concern
that there is no evidence SUSA Capó heard what they were discussing. DRPSAMF ¶ 168.
The Court overrules the DOJ’s denial. An earlier additional paragraph confirms that this
conversation took place in late 2013, which could be thought of as “just a few months.” See PSAMF
¶ 122; DRPSAMF ¶ 122. Another additional paragraph confirms that SUSA Capó saw them talking.
See PSAMF ¶ 123; DRPSAMF ¶ 123. Furthermore, the paragraph does not allege that SUSA Capó
heard what Specialist Reyes and AUSA Márquez-Marín were discussing, only that he “had seen” them
talking.
148
AUSA Márquez-Marín admits the DOJ’s paragraph eighty-two but clarifies that she “is not
agreeing to the truth of the contents of what he wrote.” PRDSMF ¶ 82. The Court disregards this
comment for the purposes of this summary judgment motion.
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Marín responded on April 4, 2014. 149 Stip. ¶ 100; DSMF ¶ 83; PRDSMF ¶ 83. She
thanked Chief Ruiz for his prompt response to such an important matter. DSMF
¶ 83; PRDSMF ¶ 83. She sent him case data showing the number of defendants in
the fifty-one cases she had been assigned in 2013, almost twice the number of the
prior year; her 2013 calendar with all her hearings and medical appointments; and a
transcript of a trial that she had worked on with SAUSA Figueroa. DSMF ¶ 83;
PRDSMF ¶ 83. She also discussed indictments she had obtained, investigations she
had opened, and other cases moving towards indictment. DSMF ¶ 83; PRDSMF ¶ 83.
She invited Chief Ruiz to speak with then Chief Judge Aida Delgado-Colón regarding
her performance in a case that went to trial for which she had volunteered to act as
lead counsel, despite prior “lack of action by [SUSA] Capó.” DSMF ¶ 83; PRDSMF
¶ 83.
During the period April 10 through April 15, 2014, Chief Ruiz and AUSA
Márquez-Marín exchanged a series of emails about the indictments and informations
that AUSA Márquez-Marín presented in 2013. DSMF ¶ 84; PRDSMF ¶ 84. After
numerous emails back and forth and numerous updates of the tables that Chief Ruiz
had provided, Chief Ruiz asked AUSA Márquez-Marín to review the data he had
compiled and to let him know if any additions needed to be made. DSMF ¶ 84;
PRDSMF ¶ 84. On April 15, 2014, AUSA Márquez-Marín responded that at plain
view the information seemed to be correct—thirty-two defendants charged via
Although not denying the content of the DOJ’s paragraph eighty-three, AUSA Márquez-Marín
adds a series of facts to her qualified response to the DOJ’s paragraph eighty-three. PRDSMF ¶ 83.
The Court incorporated AUSA Márquez-Marín’s facts to more accurately reflect the record and because
it is required to view contested facts in the light most favorable to AUSA Márquez-Marín.
149
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indictments and informations. DSMF ¶ 84; PRDSMF ¶ 84. At around the same time,
Chief Ruiz inquired about AUSA Márquez-Marín’s work on several environmental
matters. DSMF ¶ 84; PRDSMF ¶ 84.
On April 8, 2014, AUSA Márquez-Marín wrote to SUSA Capó to ask about her
“duty day.” 150 Stip. ¶ 101; DSMF ¶ 89; PRDSMF ¶ 89. She asked SUSA Capó if she
could switch her duty assignment because her children were out of school and she
was having difficulty finding people to take care of them. DSMF ¶ 89; PRDSMF ¶ 89.
SUSA Capó responded that he had no problem with the change.
DSMF ¶ 89;
PRDSMF ¶ 89.
Meanwhile, FAUSA Domínguez spoke to SUSA Capó concerning AUSA
Márquez-Marín’s concerns about his supervision of her. 151 DSMF ¶ 85; PRDSMF
¶ 85.
Based on what SUSA Capó told her, FAUSA Domínguez concluded that,
although SUSA Capó and AUSA Márquez-Marín had not communicated well, SUSA
Capó had not been unfair or abusive to her. DSMF ¶ 85; PRDSMF ¶ 85. FAUSA
AUSA Márquez-Marín objects to the DOJ’s characterization of the facts in the DOJ’s
paragraph eighty-nine as indicative of its support for AUSA Márquez-Marín. PRDSMF ¶ 89. The
Court agrees with AUSA Márquez-Marín and included just the facts, not DOJ’s characterization of
those facts. AUSA Márquez-Marín also objects to the facts in paragraph eighty-nine as immaterial.
PRDSMF ¶ 89. The Court disagrees and views these facts as some evidence that the DOJ was not
discriminating against AUSA Márquez-Marín since it congratulated her, so the Court rejects this
objection. The Court disregards AUSA Márquez-Marín’s other qualifications of paragraph eighty-nine
as irrelevant to the facts in the paragraph.
151
AUSA Márquez-Marín denies the DOJ’s paragraph eighty-five, positing that it misrepresents
FAUSA Domínguez’s testimony. PRDSMF ¶ 85. Given its obligation to view disputed matters in the
light most favorable to AUSA Márquez-Marín, the Court incorporated AUSA Márquez-Marín’s
objections into the DOJ’s paragraph but did not strike it.
AUSA Márquez-Marín also denies paragraph eighty-five because it directly contradicts SUSA
Capó’s sworn testimony concerning who was monitoring the cases, him or other AUSAs, and his refusal
to assign co-counsel. PRDSMF ¶ 85. The Court rejects this denial because previous facts establish
that SUSA Capó first monitored AUSA Márquez-Marín’s cases himself and then assigned co-counsel
once he realized AUSA Márquez-Marín would be teleworking for longer than originally planned. See
DSMF ¶¶ 64, 67, 72-73; PSAMF ¶ 142-44, 149. Thus, the Court does not see FAUSA Domínguez’s and
SUSA Capó’s statements as contradictory.
150
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Domínguez noted that SUSA Capó had taken the necessary steps to ensure that
nothing would “fall through the cracks” on AUSA Márquez-Marín’s cases while she
was out of the office. DSMF ¶ 85; PRDSMF ¶ 85.
On April 9, 2014, FAUSA Domínguez wrote a lengthy email to AUSA MárquezMarín in response to her allegations about SUSA Capó. 152 Stip. ¶ 102; PSAMF ¶ 169;
DRPSAMF ¶ 169; DSMF ¶ 86; PRDSMF ¶ 86. At the outset of her email, FAUSA
Domínguez told AUSA Márquez-Marín that if she felt she was the victim of disparate
treatment or retaliation, she should contact an EEO counselor.
PSAMF ¶ 170;
DRPSAMF ¶ 170; DSMF ¶ 86; PRDSMF ¶ 86. FAUSA Domínguez encouraged SUSA
Capó and AUSA Márquez-Marín “to maintain more open lines of communication.”
DSMF ¶ 86; PRDSMF ¶ 86. FAUSA Domínguez also stated that AUSA MárquezMarín’s email reflected a number of concerns that “appear to be made in the absence
of the consideration of several facts.” DSMF ¶ 86; PRDSMF ¶ 86. First, in response
to AUSA Márquez-Marín’s April 2 statement that she was “accustomed” to receiving
an “outstanding” rating, FAUSA Domínguez pointed out that “[n]o employee is
entitled to an outstanding rating merely because she may have received an
outstanding rating in the past.” DSMF ¶ 86; PRDSMF ¶ 86. This principle is
enshrined in the USAP 3-4.430.001: “A rating or record . . . may not be assumed, e.g.,
AUSA Márquez-Marín admits the eleven sentences in DOJ’s paragraph eighty-six as accurate
reflections of FAUSA Domínguez’s April 9 letter but asserts that FAUSA Domínguez’s conclusions
regarding the co-counsel issue are directly contradicted by various other sources on the record.
PRDSMF ¶ 86. The Court disregards this comment because paragraph eighty-six presents this
conclusion as FAUSA Domínguez’s statement rather than true fact.
152
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by ‘carrying over’ the rating of record from any previous appraisal period.” DSMF
¶ 86 (alteration in original); PRDSMF ¶ 86.
Second, FAUSA Domínguez enumerated what she stated were the various
steps that SUSA Capó had taken to ensure that AUSA Márquez-Marín’s cases were
covered when she was out of the office. DSMF ¶ 86; PRDSMF ¶ 86. Third, she
discussed AUSA Márquez-Marín’s concern that many of her cases were not
reassigned to other AUSAs. DSMF ¶ 86; PRDSMF ¶ 86. Fourth, in response to AUSA
Márquez-Marín’s claim that SUSA Capó had “put obstacles and did not want to
certify the work [she] did while [teleworking],” FAUSA Domínguez noted that it had
been SUSA Capó who had favorably recommended the approval of her telework
request. DSMF ¶ 86 (alterations in original); PRDSMF ¶ 86. Moreover, FAUSA
Domínguez explained that SUSA Capó could not responsibly certify AUSA MárquezMarín’s work hours unless she was reporting back to him the hours she was working
from home while unsupervised. DSMF ¶ 86; PRDSMF ¶ 86. FAUSA Domínguez
wrote, “This is not a question of lack of trust, it is a question of accountability by a
supervisor who must have some basis to justify his certification of the hours you
worked.” DSMF ¶ 86; PRDSMF ¶ 86. Finally, FAUSA Domínguez stated, “I conclude
by assuring you that you are a valued and esteemed member of this office, and that
your dedication and work is appreciated by us. We are pleased to have you back, and
hope your health continues to improve.” DSMF ¶ 86; PRDSMF ¶ 86.
The next day, AUSA Márquez-Marín replied, referring to several matters.
Stip. ¶ 103; PSAMF ¶ 171; DRPSAMF ¶ 171. AUSA Márquez-Marín wrote that she
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“devote[s] a lot of effort to be productive and efficient because [she] know[s] that [she
is] rendering a public service to [her] community and the end results of [her] efforts
will have a positive effect in the island . . .. This conviction is what gives [her] peace
and strength to keep working and to deal with all these continuous, unpleasant and
unnecessary peripheral matters.”
PSAMF ¶ 171; DRPSAMF ¶ 171. 153 She also
stated in part:
I am sure that everyone in this Office knows that I am very familiar with
the EEO process since I had to devote years of my life to make sure that
it was enforced here. Needless to say, both I and my attorney know the
EEO address and how to proceed.
Stip. ¶ 103; DSMF ¶ 87; PRDSMF ¶ 87.
Also, on April 10, 2014, AUSA Márquez-Marín sent an email to SUSA Capó
and Budget Officer Morales and stated that she intended to take annual leave the
next day. Stip. ¶ 104; DSMF ¶ 88; PRDSMF ¶ 88. Officer Morales acknowledged the
email but also noted that there had been a leave audit done. Stip. ¶ 104; DSMF ¶ 88;
PRDSMF ¶ 88. Officer Morales said there were discrepancies with AUSA MárquezMarín’s sick leave and that they had to adjust her annual leave balance to cover the
deficit. Stip. ¶ 104; DSMF ¶ 88; PRDSMF ¶ 88. The next week, after reviewing her
leave records, AUSA Márquez-Marín pointed out to Officer Morales that she had been
teleworking during the dates February 24-28, 2014, when she had been charged with
sick leave. Stip. ¶ 104; DSMF ¶ 88; PRDSMF ¶ 88. Officer Morales agreed to correct
AUSA Márquez-Marín’s additional paragraph one hundred and seventy-two points out that in
its statement of material facts, the DOJ limited its discussion of her April 10, 2014, email. PSAMF
¶ 172. The Court declines to include paragraph one hundred and seventy-two because it is apparent
that both parties are focusing on only portions of the April 10, 2014, email.
153
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the error, and on April 16, 2014, she did so and informed AUSA Márquez-Marín. Stip.
¶ 104; DSMF ¶ 88; PRDSMF ¶ 88.
On April 25, 2014, SUSA Capó emailed the entire USAO Criminal Division to
congratulate AUSA Márquez-Marín and SAUSA Figueroa on their victory at trial.
Stip. ¶ 105; DSMF ¶ 89; PRDSMF ¶ 89. On April 26, 2014, United States Attorney
Rodríguez congratulated AUSA Márquez-Marín and SAUSA Figueroa. Stip. ¶ 105;
DSMF ¶ 89; PRDSMF ¶ 89. On April 28, 2014, Special Counsel Novas congratulated
AUSA Márquez-Marín. Stip. ¶ 105; DSMF ¶ 89; PRDSMF ¶ 89. Although AUSA
Márquez-Marín contends that even after the raise, she was still paid less than
comparable employees, in April or on one of the first three days of May 2014, United
States Attorney Rodríguez gave AUSA Márquez-Marín a raise of $6132 during the
APR process. 154 Stip. ¶ 106; DSMF ¶ 90; PRDSMF ¶ 90. On May 14, 2014, in followup to an earlier conversation with United States Attorney Rodríguez, AUSA
Márquez-Marín emailed United States Attorney Rodríguez (copying Officer López) to
express her concerns about her pay. 155 DSMF ¶ 91; PRDSMF ¶ 91. According to
United States Attorney Rodríguez, she was unaware of the Márquez-Marín email
when—in accordance with her practice of meeting individually with each AUSA—she
AUSA Márquez-Marín admits the fact of the raise, but she points out that in her view, she was
still paid less than comparable employees. PRDSMF ¶ 90. Because it is required to view contested
facts in the light most favorable to AUSA Márquez-Marín, the Court added her assertion to its
statement of facts.
155
AUSA Márquez-Marín admits that she wrote the May 14, 2014, email, but she objects to the
DOJ’s term that she “complained” about her level of pay. PRDSMF ¶ 91. She adds that she wrote this
email as a follow-up to her conversation with United States Attorney Rodríguez the year before.
PRDSMF ¶ 91. In accordance with its obligation to view contested facts in the light most favorable to
AUSA Márquez-Marín, the Court altered the paragraph to reflect that she “expressed concern” about
her level of pay and that this email was a follow-up.
154
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met with AUSA Márquez-Marín to inform her about the raise. 156
DSMF ¶ 92;
PRDSMF ¶ 92. United States Attorney Rodríguez stated, “I just want to let you know
that I have decided to give you a pay increase. Thank you. And it is one of the highest
one[s].” DSMF ¶ 92; PRDSMF ¶ 92.
When United States Attorney Rodríguez invited AUSA Márquez-Marín to
respond, AUSA Márquez-Marín reiterated the concerns in her May 14, 2014, email.
DSMF ¶ 92; PRDSMF ¶ 92. She compared herself to certain other AUSAs within the
USAO. DSMF ¶ 92; PRDSMF ¶ 92. According to AUSA Márquez-Marín, United
States Attorney Rodríguez replied that the difference between AUSA Márquez-Marín
and those other AUSAs was the fact that AUSA Márquez-Marín had been out of the
office for several years when handling her prior lawsuit. DSMF ¶ 92; PRDSMF ¶ 92.
AUSA Márquez-Marín stated that it was improper for United States Attorney
Rodríguez to consider that factor and pointed to the Court’s prior reinstatement
order. DSMF ¶ 92; PRDSMF ¶ 92. She urged United States Attorney Rodríguez to
review it and said United States Attorney Rodríguez could talk to Officer López.
DSMF ¶ 92; PRDSMF ¶ 92. United States Attorney Rodríguez subsequently spoke
AUSA Márquez-Marín denies the first statement in paragraph ninety-two that asserts as a
fact that United States Attorney Rodríguez did not see AUSA Márquez-Marín’s email on the ground
that it is not supported by the record citation. PRDSAMF ¶ 92. The Court reviewed the record citation
and agrees that it does not support the proposition. The Court excluded the first sentence. AUSA
Márquez-Marín also denies the second sentence on the same ground. PRDSMF ¶ 92. The Court
reviewed the record citation and overrules AUSA Márquez-Marín’s objection because the record
citation supports United States Attorney Rodríguez’s statement that she did not see the email. The
Court altered the paragraph to clarify that the statement is according to United States Attorney
Rodríguez’s testimony.
The Court rejects AUSA Márquez-Marín’s further qualification of the paragraph, PRDSMF
¶ 92, because it does not find a contradiction between the paragraph and the qualification.
156
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to Officer López, who affirmed that AUSA Márquez-Marín’s salary had been properly
calculated. DSMF ¶ 92; PRDSMF ¶ 92.
On May 16, 2014, AUSA Márquez-Marín met with Chief Ruiz to discuss a case.
Stip. ¶ 107; DSMF ¶ 93; PRDSMF ¶ 93. At the end of the discussion, Chief Ruiz gave
her a seven-page letter with the outcome of his review of her 2013 productivity
evaluation.
Stip. ¶ 107; DSMF ¶ 93; PRDSMF ¶ 93.
Chief Ruiz’s letter did
mathematical comparisons between AUSA Márquez-Marín’s work and that of three
unidentified AUSAs and, to AUSA Márquez-Marín’s knowledge, none of them had
worked through chemotherapy and three operations during the year. 157 PSAMF
¶ 178; DRPSAMF ¶ 178. Chief Ruiz upheld the original “successful” rating. Stip.
¶ 107; PSAMF ¶ 178; DRPSAMF ¶ 178; DSMF ¶ 93; PRDSMF ¶ 93.
Later that afternoon, AUSA Márquez-Marín sent an email to FAUSA
Domínguez in which she complained about Chief Ruiz’s review. Stip. ¶ 108; DSMF
¶ 94; PRDSMF ¶ 94. She argued that Chief Ruiz did not take into consideration that
she had in her inventory close to three hundred defendants from complex cases that
were assigned to her before 2013, which she also had to manage. DSMF ¶ 94;
PRDSMF ¶ 94; PSAMF ¶ 179; DRPSAMF ¶ 179.
AUSA Márquez-Marín stated
among other things that Chief Ruiz was “comparing apples to oranges,” that he was
The DOJ denies that AUSA Márquez-Marín’s cited authority addresses whether the three
unknown AUSAs had worked through chemotherapy and three operations during the year.
DRPSAMF ¶ 178. The Court reviewed the cited authority and finds that it does not directly support
AUSA Márquez-Marín’s statement. See DSMF ¶ 94. Nevertheless, it is highly implausible that three
AUSAs in the Puerto Rico USAO underwent chemotherapy and three surgical operations during the
same period that AUSA Márquez-Marín underwent these treatments. The Court amended the
paragraph to reflect that it is based on AUSA Márquez-Marín’s personal knowledge of the AUSA
workforce at the Puerto Rico USAO.
157
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using criteria that do not appear in any DOJ manual, and that he had committed
serious errors in his listing of her cases and her caseload, failing to take into account
complex cases which were started before that year but which required considerable
attention. 158 PSAMF ¶ 179; DRPSAMF ¶ 179. AUSA Márquez-Marín criticized Chief
Ruiz for giving a “highly improper and negative connotation to the fact that she was
‘absent from the office for a considerable amount of time’” and she pointed out that
he failed to consider that she had undergone chemotherapy in 2013. DSMF ¶ 94;
PRDSMF ¶ 94; PSAMF ¶ 179; DRPSAMF ¶ 179. To support her productivity, she
attached the “Alcatraz” Program list to her email. PSAMF ¶ 179; DRPSAMF ¶ 179.
She concluded by saying that Chief Ruiz’s evaluation added to the hostile work
environment and asked FAUSA Domínguez to reconsider her productivity rating.
DSMF ¶ 94; PRDSMF ¶ 94.
Management did not change Chief Ruiz’s evaluation.
PSAMF ¶ 180;
DRPSAMF ¶ 180. Instead, it used a unique formula which to AUSA Márquez-Marín’s
knowledge was applied only to her, which did not appear in DOJ policies, and which
purported to show that AUSA Márquez-Marín was not “productive” enough for an
“outstanding” rating. 159 PSAMF ¶ 180; DRPSAMF ¶ 180.
The DOJ denies that AUSA Márquez-Marín stated in her email that Chief Ruiz’s evaluation
had used criteria that do not appear in any DOJ manual. DRPSAMF ¶ 179. AUSA Márquez-Marín’s
May 16, 2014, email states that Chief Ruiz’s analysis was “clearly predicated in formulas and
considerations that were only designed and created for me.” PSAMF, Attach. 4, Ex. X: Email from
Márquez to Domínguez at 1. This is another way of saying that Chief Ruiz did not base his analysis
on a DOJ manual. The Court declines to accept the DOJ’s denial.
159
The DOJ denies this portion of AUSA Márquez-Marín’s additional paragraph one hundred and
eighty, arguing that AUSA Márquez-Marín cannot rely on her own testimony alone to show that the
formula was unique or used only for her since it is not within her personal knowledge. DRPSAMF
¶ 180. The Court declines to accept the DOJ’s denial in full because it is required to view contested
facts in the light most favorable to AUSA Márquez-Marín and she had personal knowledge of the DOJ
158
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On May 23, 2014, FAUSA Domínguez responded:
If you are grieving your performance appraisal, then please follow the
grievance procedures as set forth in USAP 3-4.771.001. Your grievance
should be directed to the undersigned as the FAUSA. If you believe that
your performance appraisal is based on discrimination or retaliation,
then you may contact the EEO staff . . ..
Stip. ¶ 109 (alteration in original); DSMF ¶ 95; PRDSMF ¶ 95.
Also, on May 16, 2014, AUSA Márquez-Marín emailed SUSA Capó. 160 Stip.
¶ 110; DSMF ¶ 96; PRDSMF ¶ 96. AUSA Márquez-Marín stated that she had not
used her lunch hour. Stip. ¶ 110; DSMF ¶ 96; PRDSMF ¶ 96. Since she needed to
pick up her children an hour prior to the usual end of her work day, she asked SUSA
Capó whether she could use the time she had available for lunch or whether he
wanted her to request leave for an hour. Stip. ¶ 110; DSMF ¶ 96; PRDSMF ¶ 96.
SUSA Capó responded that there was no need to submit a leave slip. Stip. ¶ 110;
DSMF ¶ 96; PRDSMF ¶ 96. On June 10, 2014, United States Attorney Rodríguez
approved a forty-hour (one week) time-off award for AUSA Márquez-Marín for her
outstanding overall performance evaluation for 2013.
Stip. ¶ 111; DSMF ¶ 96;
PRDSMF ¶ 96. On June 20, 2014, AUSA Márquez-Marín emailed SUSA Capó that
she had to leave thirty minutes early to pick up her children from camp, so she
planned to take only a half-hour lunch to compensate. Stip. ¶ 112; DSMF ¶ 96;
policies. The Court slightly altered the paragraph to reflect that it is based on AUSA Márquez-Marín’s
knowledge.
The DOJ also denies that Chief Ruiz’s review purported to show that AUSA Márquez-Marín
was not productive. The Court altered the paragraph to reflect the record on this point more
accurately.
160
AUSA Márquez-Marín objects to the DOJ’s characterization of the facts in its paragraph
ninety-six as evidence of the DOJ’s “continued support” of AUSA Márquez-Marín. PRDSMF ¶ 96. The
Court agrees with AUSA Márquez-Marín and included the facts but not the DOJ’s characterization of
those facts.
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PRDSMF ¶ 96.
She asked SUSA Capó if this arrangement was okay and he
responded, “It’s fine.” Stip. ¶ 112; DSMF ¶ 96; PRDSMF ¶ 96.
l.
The Letter of Admonishment
At some point after July 14, 2014 (about a week before July 24, 2014), FAUSA
Domínguez spoke with Special Agent Wallace Bustelo via telephone. DSMF ¶ 97;
PRDSMF ¶ 97. Until May 31, 2014, Special Agent Bustelo had served as a SAUSA
on detail from his regular position as a Special Agent at the Office of the Inspector
General for the Department of Health and Human Services (HHS-OIG). DSMF ¶ 97;
PRDSMF ¶ 97. His detail, however, had since ended, and he had returned to HHSOIG. DSMF ¶ 97; PRDSMF ¶ 97. Special Agent Bustelo and FAUSA Domínguez
knew each other; they had worked together on a fraud case in early 2014. DSMF
¶ 97; PRDSMF ¶ 97. During their telephone call, Special Agent Bustelo related to
FAUSA Domínguez that Specialist Reyes and AUSA Márquez-Marín, in separate
encounters, had asked him about an apartment rented by FAUSA Domínguez during
the 2009 Acevedo-Vilá case. DSMF ¶ 98; PRDSMF ¶ 98.
When first questioned about this conversation, Special Agent Bustelo denied
that AUSA Márquez-Marín had asked him about the propriety of the apartment
rental and whether it had been used by two USAO supervisors for romantic
encounters. 161 DSMF ¶ 98; PRDSMF ¶ 98. Later, after considerable pressure from
In the DOJ’s paragraph ninety-eight, it refers only to Special Agent Bustelo’s second statement
implicating AUSA Márquez-Marín, not his first statement in which he said she had not made this
inquiry about the apartment. DSMF ¶ 98. AUSA Márquez-Marín objects and asks that both
statements be included as well as her contention that FAUSA Domínguez pressured Special Agent
Bustelo to make the second statement. PRDSMF ¶ 98. In accordance with its obligation to view
contested facts in the light most favorable to AUSA Márquez-Marín, the Court included her version.
The Court also notes that the DOJ admitted AUSA Márquez-Marín’s additional paragraph one
161
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FAUSA Domínguez, Special Agent Bustelo changed his version of these events and
said that AUSA Márquez-Marín and Specialist Reyes had suggested that the
apartment had been improperly rented and used by two USAO supervisors (SUSAs
Capó and Hernández, who were both AUSAs in 2009) for amorous encounters. DSMF
¶ 98; PRDSMF ¶ 98. Special Agent Bustelo also communicated that AUSA MárquezMarín had said that she and Appellate Division Chief Pérez were helping Specialist
Reyes with issues he had been having with management. DSMF ¶ 98; PRDSMF ¶ 98.
FAUSA Domínguez asked Special Agent Bustelo to put his account into writing.
DSMF ¶ 98; PRDSMF ¶ 98.
Before he spoke with FAUSA Domínguez, Special Agent Bustelo mentioned
the Márquez-Marín conversation to Héctor Ramírez, now Chief of the Civil Division,
with whom he spoke frequently. PSAMF ¶ 194; DRPSAMF ¶ 194. Chief Ramírez, in
turn, told him that he had to talk with FAUSA Domínguez, which he did. PSAMF
¶ 194; DRPSAMF ¶ 194. This was followed by a phone call from Chief Ruiz. PSAMF
¶ 194; DRPSAMF ¶ 194. The upper echelon of the USAO, FAUSA Domínguez, Chief
Ruiz, and Special Counsel Novas, became involved in this matter and in drafting an
admonishment letter to AUSA Márquez-Marín. 162 PSAMF ¶ 195; DRPSAMF ¶ 195.
Before issuing the admonishment letter to AUSA Márquez-Marín, the USAO had not
hundred and ninety-seven, which describes Special Agent Bustelo’s first statement the same way. See
PSAMF ¶ 197; DRPSAMF ¶ 197.
The Court rejects AUSA Márquez-Marín’s further qualification regarding being a witness for
Specialist Reyes in his EEO process, PRDSMF ¶ 98, because it is not relevant to this paragraph.
162
The DOJ denies in part and qualifies in part AUSA Márquez-Marín’s additional paragraph
one hundred and ninety-five. DRPSAMF ¶ 195. The DOJ adds facts specifying the involvement of
each named individual. DRPSAMF ¶ 195. As AUSA Márquez-Marín’s paragraph only asserts that
they were each involved and does not characterize their individual involvement, the Court rejects the
DOJ’s denial and qualified response.
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interviewed AUSA Márquez-Marín and had not obtained a written version from
Special Agent Bustelo regarding the conversation he had with AUSA MárquezMarín. 163 PSAMF ¶ 196; DRPSAMF ¶ 196.
FAUSA Domínguez reached out to members of the USAO management. DSMF
¶ 99; PRDSMF ¶ 99. For example, FAUSA Domínguez spoke with Chief Ruiz and
told him that she wanted him to speak with Special Agent Bustelo as well. DSMF
¶ 99; PRDSMF ¶ 99. FAUSA Domínguez also spoke with Chief Pérez on July 21,
2014. DSMF ¶ 99; PRDSMF ¶ 99. Concerned that false allegations were possibly
being made about Chief Pérez, who was a close friend, FAUSA Domínguez wanted
him to know that it had been said that he had been helping Specialist Reyes. DSMF
¶ 99; PRDSMF ¶ 99. FAUSA Domínguez, however, refrained from speaking to AUSA
Márquez-Marín. DSMF ¶ 99; PRDSMF ¶ 99.
FAUSA Domínguez and Chief Ruiz consulted with then Special Counsel Novas
about what should be done. DSMF ¶ 100; PRDSMF ¶ 100. Special Counsel Novas
became involved because she supervised Specialist Reyes, but she was not involved
in the decision-making process for AUSA Márquez-Marín. DSMF ¶ 100; PRDSMF
¶ 100. The EOUSA’s General Counsel’s Office (GCO) was also consulted on the
matter. DSMF ¶ 100; PRDSMF ¶ 100. FAUSA Domínguez spoke with Chief Ruiz
about AUSA Márquez-Marín in particular and they believed that an admonishment
was sufficient because this was the first time she had been involved in an incident of
Although the DOJ admits AUSA Márquez-Marín’s additional paragraph one hundred ninetysix, it seeks to add explanatory facts. DRPSAMF ¶ 196. The Court declines to include the DOJ’s
additional facts in the statement of facts because they do not contradict AUSA Márquez-Marín’s
paragraph one hundred ninety-six.
163
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this nature and an admonishment was not formal discipline. DSMF ¶ 101; PRDSMF
¶ 101.
They tentatively determined that Chief Ruiz would issue a letter of
admonishment to AUSA Márquez-Marín but confirmed that he should also speak
with Special Agent Bustelo directly, both to verify the allegations and since Chief
Ruiz would be signing the letter.
DSMF ¶ 101; PRDSMF ¶ 101.
It was also
tentatively decided, with Special Counsel Novas, to issue Specialist Reyes a letter of
reprimand—a more severe sanction than a letter of admonishment—because he had
a prior disciplinary history and progressive discipline merited a more serious
sanction. DSMF ¶ 101; PRDSMF ¶ 101.
On July 23, 2014, FAUSA Domínguez and Chief Ruiz worked to draft the
admonishment letter for AUSA Márquez-Marín. Stip. ¶ 114; DSMF ¶ 102; PRDSMF
¶ 102. Special Counsel Novas assisted only in making minor edits that sought to
protect the names of the supervisors involved. DSMF ¶ 102; PRDSMF ¶ 102.
While the drafting process was ongoing, on July 23, 2014, Chief Ruiz spoke
with Special Agent Bustelo. Stip. ¶ 113; DSMF ¶ 103; PRDSMF ¶ 103. Special Agent
Bustelo confirmed that AUSA Márquez-Marín had been inquiring about the rental of
the apartment by FAUSA Domínguez and about the possible improper use of the
apartment. DSMF ¶ 103; PRDSMF ¶ 103.
While the letter of admonishment process was proceeding, in July 2014,
Specialist Reyes called AUSA Márquez-Marín and asked her if she could be a witness
in connection with his EEO complaint. 164 PSAMF ¶ 182; DRPSAMF ¶ 182. She said
AUSA Márquez-Marín’s additional paragraph one hundred and eighty-one states, “The issue
of the admonishment letter, which is discussed at length at paragraphs 97 to 108 of defendants
164
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that he could include her given that that she had been a victim of retaliation
(including that determined by a federal court jury) and also because one of the reasons
offered by management to justify his suspension in April 2014 involved his conduct
with regard to a trial in which he helped her, but no one had called her to ask for her
version of the events in which she was directly involved. PSAMF ¶ 182; DRPSAMF
¶ 182. AUSA Márquez-Marín told Specialist Reyes that the reason was “false” and
to “include [her] because she []will clarify that.” PSAMF ¶ 182 (alteration in original);
DRPSAMF ¶ 182.
During the same period, Specialist Reyes consulted with AUSA MárquezMarín with respect to a possible referral to the Office of Inspector General (OIG)
and/or to the Special Counsel regarding the possible ethical violations related to an
apartment which had been used by the office during a high-profile trial in 2009
against the then Governor. 165 PSAMF ¶ 183; DRPSAMF ¶ 183. Specialist Reyes
believed that the apartment had been rented from a prominent defense attorney who
also had a contract in the office, and he was concerned about the legality and ethical
implications of this situation. PSAMF ¶ 183; DRPSAMF ¶ 183. AUSA MárquezMarín responded by saying that these were serious allegations for which he should
Statement of Facts, at pages 30 to 34. The background of this complicated matter is discussed below.”
PSAMF ¶ 181. The DOJ denies AUSA Márquez-Marín’s additional paragraph one hundred eightyone on the ground that it is not a statement of fact. DRPSAMF ¶ 181. The Court agrees with the DOJ
and did not include this paragraph in the statement of facts.
165
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred and eighty-three, stating that the “same period” she is referring to is vague and that AUSA
Márquez-Marín’s own testimony establishes that Specialist Reyes consulted with her before asking
her to be a witness for his EEO complaint. DRPSAMF ¶ 183. The Court rejects this qualification
because the paragraph does not specify whether the consultation was before or after Specialist Reyes
asked AUSA Márquez-Marín to be a witness but rather that it happened during the same general
period.
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be certain he had evidence as well as clarity as to who the defense attorney was.
PSAMF ¶ 184; DRPSAMF ¶ 184.
Shortly thereafter, on July 14, 2014, AUSA
Márquez-Marín ran into Special Agent Bustelo who, according to Specialist Reyes,
had provided the information with respect to the apartment and had also stated that
it was used for improper trysts in the office. 166 PSAMF ¶ 185; DRPSAMF ¶ 185.
According to Special Agent Bustelo, he asked AUSA Márquez-Marín, “Are you
helping [Specialist Reyes]?” and AUSA Márquez-Marín replied, yes, that she and
Chief Pérez were “helping him, but don’t tell anyone.” PSAMF ¶ 186; DRPSAMF
¶ 186. Special Agent Bustelo did not consider the conversation with AUSA MárquezMarín to be anything of particular importance or particularly relevant or
significant. 167 PSAMF ¶ 187; DRPSAMF ¶ 187. During the conversation, AUSA
Márquez-Marín did not mention either SUSA Hernández or SUSA Capó. 168 PSAMF
¶ 188; DRPSAMF ¶ 188. According to Special Agent Bustelo, there was a lot of office
The DOJ interposes a qualified response, noting that it has not been established that Special
Agent Bustelo was the person who provided the information about the apartment. DRPSAMF ¶ 185.
The DOJ objects on the ground of hearsay, but it acknowledges that AUSA Márquez-Marín is not
offering the statement for the truth but to explain AUSA Márquez-Marín’s motive in asking Special
Agent Bustelo about the matter. DRPSAMF ¶ 185. The Court receives the statement not for its truth
but to explain AUSA Márquez-Marín’s motive. Therefore, the Court rejects the qualification.
167
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph one
hundred and eighty-seven, admitting that Special Agent Bustelo testified as the paragraph states but
adding that he testified to feeling this way at the time of the conversation with AUSA Márquez-Marín.
DRPSAMF ¶ 187. As the DOJ’s added fact does not contradict AUSA Márquez-Marín’s paragraph one
hundred and eighty-seven, the Court rejects the qualification.
168
The DOJ interposes a long, qualified response to AUSA Márquez-Marín’s additional paragraph
one hundred and eighty-eight, explaining the significance of this paragraph and challenging its
veracity. DRPSAMF ¶ 188. Although the Court appreciates the DOJ’s effort to provide context, the
Court is required to view contested facts in the light most favorable to AUSA Márquez-Marín and
there is sufficient evidence in the record to support her not mentioning SUSAs Capó and Hernández
during the conversation. The Court declines to alter AUSA Márquez-Marín’s additional paragraph
one hundred and eighty-eight.
166
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gossip that SUSA Capó and SUSA Hernández were in a relationship. 169 PSAMF
¶ 189; DRPSAMF ¶ 189.
After the letter of admonishment was finalized, on July 24, 2014, at
approximately 3:20 p.m., in his office, Chief Ruiz handed AUSA Márquez-Marín a
letter of admonition signed by him. 170 Stip. ¶ 115; DSMF ¶ 104; PRDSMF ¶ 104;
PSAMF ¶ 190; DRPSAMF ¶ 190. Officer López was present when Chief Ruiz handed
AUSA Márquez-Marín the letter of admonishment.
Stip. ¶ 117; DSMF ¶ 104;
PRDSMF ¶ 104. In the admonition letter, AUSA Márquez-Marín was accused of
“asking questions about the rental of an apartment for the [FAUSA] paid by the
[USAO] to a local attorney, [during] the trial of a high-profile case” and also
“suggest[ing] that the apartment had been inappropriately used by other AUSAs.”
PSAMF ¶ 190 (some alterations in original); DRPSAMF ¶ 190. The admonition letter
stated in part:
This form of gossip is unbecoming to the position of [AUSA]. Your
conduct in disseminating such false information demonstrates poor
judgment, creates disruption and is damaging to the mission of this
office. These false statements only serve to undermine the authority of
supervisors in our office. As you know, [AUSAs] are required to behave
The DOJ admits that Special Agent Bustelo testified that there was office gossip about the
relationship, but it denies the part of AUSA Márquez-Marín’s additional paragraph one hundred and
eighty-nine that asserts that they did in fact have a romantic relationship while each was married to
another person. DRPSAMF ¶ 189. The DOJ says that this part of the paragraph is not supported by
the record citation. DRPSAMF ¶ 189. The Court reviewed page thirty-five of the Bustelo deposition
and agrees with the DOJ that Special Agent Bustelo states only that the relationship was a matter of
office gossip but states that he has no knowledge whether it was true. PSAMF, Attach. 3, Ex. Y:
Excerpts from Dep. of Wallace Bustelo at 35. The Court excluded that portion of AUSA MárquezMarín’s additional paragraph one hundred and eighty-nine that is not supported by the record citation.
170
The DOJ interposes a qualified response, pointing out that Chief Ruiz gave AUSA MárquezMarín the letter of admonishment ten days after her conversation with Special Agent Bustelo.
DRPSAMF ¶ 190. Since the Court included the DOJ’s paragraph one hundred and four, which gives
the date Chief Ruiz gave AUSA Márquez-Marín the letter, the Court finds this qualification moot.
169
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themselves in a professional manner and are also expected to be team
players. 171
PSAMF ¶¶ 191, 200; DRPSAMF ¶¶ 191, 200.
Although the letter was an
“admonishment,” it stated that “the failure to behave [her]self in a professional
manner in the future may result in formal disciplinary action against [her].” 172
PSAMF ¶ 192; DRPSAMF ¶ 192.
At 3:35 p.m. on July 24, 2014, at the meeting where Chief Ruiz handed AUSA
Márquez-Marín the letter of admonition, AUSA Márquez-Marín wrote the following
handwritten comment at the end of the admonishment letter:
This is another example of the prohibited personnel practices utilized at
USAO PR. Moreover, these allegations are unfounded and false. This
is another example of the retaliation I [have] been subjected to by [Chief]
Ruiz and upper management. I considered this letter and the way in
which it was given to me as an attempt to intimidate and threaten me
as I have been announced as a witness in the case of [Specialist] Reyes
against the office where he filed an EEO Complaint, the witness list
where he announced me as a witness was sent to EEO on July 11,
2014. 173
Stip. ¶ 116; PSAMF ¶ 193; DRPSAMF ¶ 193; DSMF ¶ 104; PRDSMF ¶ 104.
Afterwards, AUSA Márquez-Marín went to her office. DSMF ¶ 105; PRDSMF ¶ 105.
The DOJ interposes a qualified response, stating that AUSA Márquez-Marín’s additional
paragraph one hundred and ninety-one was not an accurate quotation from the admonition letter.
DRPSAMF ¶ 191. The Court fully quoted those portions of the letter to which the parties referred.
See PSAMF, Attach. 3, Ex. Z: Admonishment Letter of July 24, 2014 at 1 (Admonishment Letter).
172
AUSA Márquez-Marín’s additional paragraph one hundred and ninety-two states that further
discipline was “promised” if she failed to behave in a professional manner. PSAMF ¶ 192. The DOJ
denies the paragraph on the ground that the letter did not promise further discipline but stated that
further discipline could follow. DRPSAMF ¶ 192. The Court reviewed the July 24, 2014, letter, agrees
with the DOJ, and altered the paragraph to match the language in the letter. See Admonishment
Letter at 1-2.
173
In her additional paragraph one hundred and ninety-three, AUSA Márquez-Marín excerpts
some of the language in her handwritten response to the July 24, 2014, admonition letter. PSAMF
¶ 193. The DOJ challenges the accuracy of AUSA Márquez-Marín’s excerpts. DRPSAMF ¶ 193. As
the contents are set forth in full in paragraph one hundred and sixteen of the Joint Stipulation, the
Joint Stipulation trumps both the additional paragraph and the qualified response.
171
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Special Agent Bustelo first wrote up his version two weeks after AUSA
Márquez-Marín was admonished. PSAMF ¶ 197; DRPSAMF ¶ 197. In that first
written version, Special Agent Bustelo mentioned that AUSA Márquez-Marín had
asked about the apartment and had also stated that she was helping Specialist Reyes
with his EEO complaint. PSAMF ¶ 197; DRPSAMF ¶ 197. Special Agent Bustelo
did not write that AUSA Márquez-Marín had asked about whether SUSAs
Hernández and Capó had used the apartment for romantic encounters. PSAMF
¶ 197; DRPSAMF ¶ 197.
FAUSA Domínguez, however, wanted this allegation to be included in Special
Agent Bustelo’s written version. 174 PSAMF ¶ 198; DRPSAMF ¶ 198. This is clear
from an email exchange between Special Agent Bustelo and FAUSA Domínguez:
•
On August 8, 2014, upon FAUSA Domínguez’s requests, Special Agent
Bustelo provided his first written statement in an email entitled,
“conversation summary.” This was the written statement that included
nothing about AUSA Márquez-Marín allegedly making inquiries about
whether the apartment was used for love trysts between SUSAs Hernández
and Capó.
•
Six minutes after receiving Special Agent Bustelo’s email, FAUSA
Domínguez wrote back to him with one question: “Did AUSA Márquez[-
The DOJ interposes a qualified response in which it presents its own version of these
exchanges and their timing. DRPSAMF ¶ 198. The Court declines to adopt the DOJ’s version because
it is required to view conflicting evidence in the light most favorable to AUSA Márquez-Marín and the
facts AUSA Márquez-Marín includes are supported by the record.
174
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Marín] indicate to you that [SUSAs] Capó and Hernández had used the
apartment as well?”
•
Later that day, Special Agent Bustelo affirmed, “I don’t remember her
mentioning it. I do remember [Specialist Reyes] saying it. Sorry, I’ve been
going back and forth but I’ve been on surveillance all afternoon and
evening.”
•
On August 26, 2014, FAUSA Domínguez again wrote to Special Agent
Bustelo, this time copying her email to Special Counsel Novas. She stated,
“When we last spoke you indicated that you did, in fact, recall [AUSA]
Márquez[-Marín] also mentioning that [SUSAs] Capó and [Hernández]
allegedly used the apartment for their encounters. It is important that you
supplement your statement to indicate this, and that you also provide me
with a synopsis of your recent conversation with [Specialist Reyes].”
•
On September 2, 2014, almost a month after he wrote up this original
version, Special Agent Bustelo sent FAUSA Domínguez his “Conversation
Summary (Amended),” in which he stated among other things that AUSA
Márquez-Marín has “also inquired whether that was the same apartment
used by [SUSAs] Capó and . . . Hernández for personal encounters.” 175
In her additional paragraph one hundred ninety-nine, AUSA Márquez-Marín asserts what a
jury would be entitled to find from this evidence. PSAMF ¶ 199. The DOJ objects to paragraph one
hundred and ninety-nine on the ground that it is argumentative. The Court agrees with the DOJ and
struck AUSA Márquez-Marín’s additional paragraph one hundred ninety-nine from the statement of
facts.
175
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See PSAMF ¶ 198 (emphasis omitted); DRPSAMF ¶ 198; Stip. ¶¶ 125-27, 130-31;
DSMF ¶¶ 109, 112-13; PRDSMF ¶ 109. 176
Though Special Agent Bustelo omitted any mention of AUSA Márquez-Marín
talking with him about the apartment being used by SUSAs Capó and Hernández in
his first summary of his conversation with AUSA Márquez-Marín on August 8, 2014,
he later said that he had discussed this matter with FAUSA Domínguez on the
telephone. 177 Stip. ¶ 125; DSMF ¶ 109; PRDSMF ¶ 109. Special Agent Bustelo also
later explained that at the moment he responded to FAUSA Domínguez on August 8,
2014, he was probably just getting off from doing surveillance somewhere in Puerto
Rico; he wrote a quick response to her from his cellphone since he thought that
someone in FAUSA Domínguez’s position would want a fast response. 178
DSMF
¶ 109; PRDSMF ¶ 109.
Although the admonition letter referred to gossip, the Mission Statement of
the USAO in effect at the time said nothing about “gossip.” 179
PSAMF ¶ 201;
AUSA Márquez-Marín does not respond to the DOJ’s paragraphs one hundred and twelve and
one hundred and thirteen and they are therefore deemed admitted. Compare DSMF ¶¶ 112-13, with
PRDSMF at 25-26.
177
AUSA Márquez-Marín qualifies this sentence of the DOJ’s paragraph one hundred and nine
to emphasize that Special Agent Bustelo had contradicted himself about whether she had mentioned
the improper use issue. PRDSMF ¶ 109. The Court slightly amended the DOJ’s paragraph to reflect
AUSA Márquez-Marín’s concern.
178
AUSA Márquez-Marín denies this sentence in the DOJ’s paragraph one hundred and nine to
the extent that it implies that Special Agent Bustelo left something out because he quickly responded.
PRDSMF ¶ 109. The Court draws no such implication and therefore rejects the denial.
179
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph two
hundred and one, admitting that the Mission Statement does not explicitly mention the word “gossip”
but arguing that not engaging in gossip is inherent in the idea of maintaining a courteous and
professional working environment and treating others with respect. DRPSAMF ¶ 201. The Court
rejects this qualification because it does not contradict AUSA Márquez-Marín’s paragraph.
AUSA Márquez-Marín denies and qualifies portions of the DOJ’s paragraph one hundred and
nine. PRDSMF ¶ 109. AUSA Márquez-Marín qualifies the first sentence to reflect that Special Agent
Bustelo’s first email on August 8 was not a quick response from a cellphone and that he did not mention
that AUSA Márquez-Marín asked about the improper use of the apartment. PRDSMF ¶ 109. The
176
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DRPSAMF ¶ 201.
It stated that employees would “maintain a courteous and
professional working environment” and “treat others with the same trust and respect
that [they] expect for [them]selves.” PSAMF ¶ 201; DRPSAMF ¶ 201. United States
Attorney Rodríguez wrote the 2008 Mission Statement with FAUSA Domínguez and
Special Counsel Novas. PSAMF ¶ 202; DRPSAMF ¶ 202. The Statement was not
reviewed by the EOUSA. PSAMF ¶ 203; DRPSAMF ¶ 203. United States Attorney
Rodríguez had “the final word on [the] Mission Statement, because it [wa]s hers.”
PSAMF ¶ 203; DRPSAMF ¶ 203. She wrote the Mission Statement with the help of
FAUSA Domínguez and Special Counsel Novas to substitute one that was in effect
and had been written by then United States Attorney García. 180 PSAMF ¶ 203;
DRPSAMF ¶ 203.
The 2008 Mission Statement included the heading “Philosop[h]y.” PSAMF
¶ 204; DRPSAMF ¶ 204. That section included the following language:
Divisiveness and lethargy adversely affect morale and will have a
negative impact on the office’s overall performance. It is through unity,
trust and respect that we will best serve the community and achieve our
goals.
Court rejects these qualifications because the first sentence does not state or imply either of those
points. AUSA Márquez-Marín denies the third sentence to the extent it attributes a certain motivation
to FAUSA Domínguez. PRDSMF ¶ 109. The Court does not read a motivation into the quote and
therefore rejects this denial.
180
The DOJ denies that the record supports the part of AUSA Márquez-Marín’s additional
paragraph two hundred and three that says former United States Attorney García wrote the earlier
mission statement. DRPSAMF ¶ 203. AUSA Márquez-Marín cites a page from United States Attorney
Rodríguez’s deposition where United States Attorney Rodríguez confirms that the earlier mission
statement was by former United States Attorney García. PSAMF ¶ 203 (citing PSAMF, Attach. 4, Ex.
DD: Dep. of Rosa Emilia Rodríguez, Esq. at 157:18-20). The Court rejects the DOJ’s denial because
United States Attorney Rodríguez’s testimony can be interpreted to mean that former United States
Attorney García wrote the earlier mission statement.
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PSAMF ¶ 204; DRPSAMF ¶ 204. This same language was included in that section
in the revision made in February 2011. 181 PSAMF ¶ 205; DRPSAMF ¶ 205. This
Mission Statement was amended in June 2015, almost a year after AUSA MárquezMarín received the admonishment letter, and at that time, the above language was
changed to add the language below in italics and strike outs:
Divisiveness and lethargy, often caused by malicious gossip
adversely affect[s] morale and will have a negative impact on the office’s
overall performance. It is through unity, trust and respect that we will
best serve the community and achieve our goals.
PSAMF ¶ 206; DRPSAMF ¶ 206.
In her deposition, United States Attorney
Rodríguez admitted that the principle change to the earlier Mission Statement was
the inclusion of the “malicious gossip” language in 2015 after AUSA Márquez-Marín
was admonished. 182 PSAMF ¶ 207; DRPSAF ¶ 207.
The DOJ issued Human Resources Order 1200.1; Appendix I to that order is a
Human Resources Dictionary dated September 23, 2004. Stip. ¶ 118.
On July 24, 2014, at around 4:15 p.m., Appellate Division Chief Pérez came to
see AUSA Márquez-Marín and confronted her about whether she had said that he
was helping Specialist Reyes with his EEO complaint. Stip. ¶ 119. Several days
later, on July 30, 2014, Chief Pérez wrote an email to FAUSA Domínguez describing
AUSA Márquez-Marín’s original additional paragraph two hundred and five includes the
assertion that the November 2009 revision included this same language. PSAMF ¶ 205. The DOJ
denies this part of the paragraph because AUSA Márquez-Marín failed to attach the November 2009
revision and therefore the assertion is not supported by the record citation. DRPSAMF ¶ 205. The
Court agrees and eliminated the reference to the November 2009 revision.
182
The DOJ admits AUSA Márquez-Marín’s additional paragraph two hundred and seven but
adds its view that the notion that one should not engage in malicious gossip was inherent in the 2011
Mission Statement. DRPSAMF ¶ 207. The Court did not include the DOJ’s additional assertions
because they do not contradict AUSA Márquez-Marín’s additional paragraph two hundred and seven
and because they are opinion, not fact.
181
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his encounter with AUSA Márquez-Marín. Stip. ¶ 120. In his email, Chief Pérez
stated that FAUSA Domínguez had called him on July 21, 2014, to inform him that
it had been reported to upper management by two individuals that AUSA MárquezMarín had expressed that she and Chief Pérez were “helping” Specialist Reyes. Stip.
¶ 120.
After receiving the admonition letter and speaking with Chief Pérez, AUSA
Márquez-Marín contacted her attorney and sent her the letter of admonishment.
Stip. ¶ 121. When her attorney asked to see her, AUSA Márquez-Marín contacted
Officer López and SUSA Capó to tell them that she was going to meet with her
attorney to discuss the matter and would return as soon as she finished. Stip. ¶ 121.
AUSA Márquez-Marín left her office (with the door open) around 4:40 p.m. on
July 24, 2014, and she claims she left her purse and her cellphone at the office. Stip.
¶ 121; DSMF ¶ 105; PRDSMF ¶ 105. When she returned, she found the door of her
office closed and her cellphone was not where she left it. Stip. ¶ 121; DSMF ¶ 105;
PRDSMF ¶ 105. AUSA Márquez-Marín then sent an email to SUSA Capó and
Marilyn Benitez, the Supervisory Information Technology Specialist, to inform them
about the disappearance of her cellphone. Stip. ¶ 121; DSMF ¶ 105; PRDSMF ¶ 105.
The next morning, on July 25, 2014, Chief Ruiz emailed AUSA Márquez-Marín and
said that he had just arrived in his office and noticed a cellphone. Stip. ¶ 122; DSMF
¶ 106; PRDSMF ¶ 106. Chief Ruiz had left the office immediately after their meeting
the previous day. Stip. ¶ 122; DSMF ¶ 106; PRDSMF ¶ 106. Chief Ruiz told AUSA
Márquez-Marín that if this was her phone, Specialist Benitez would contact her so
110
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that she could get it back. Stip. ¶ 122; DSMF ¶ 106; PRDSMF ¶ 106. AUSA MárquezMarín responded to Chief Ruiz’s email, labeling the subject of her message,
“Disappearance of cellular phone as part of pattern of retaliation.” Stip. ¶ 123; DSMF
¶ 106; PRDSMF ¶ 106. She gave her account of the previous two days’ events. Stip.
¶ 123; DSMF ¶ 106; PRDSMF ¶ 106.
FAUSA Domínguez told Chief Ruiz that they should review the surveillance
video footage of AUSA Márquez-Marín in the hall when she was going in and out of
Chief Ruiz’s office to see if AUSA Márquez-Marín had the phone with her. DSMF
¶ 107; PRDSMF ¶ 107.
Although FAUSA Domínguez spoke with an office
administrator to see whether video had been preserved, she did not follow up on the
matter. DSMF ¶ 107; PRDSMF ¶ 107. Chief Ruiz also discussed the matter with the
GCO. DSMF ¶ 107; PRDSMF ¶ 107. Despite these discussions, Chief Ruiz, FAUSA
Domínguez, and Special Counsel Novas all testified that they did not review any
videotape footage of AUSA Márquez-Marín. DSMF ¶ 107; PRDSMF ¶ 107.
m.
Carmen Márquez-Marín’s
July 30, 2014
Pre-Complaint
Filing:
On or about July 30, 2014, AUSA Carmen Márquez-Marín filed a precomplaint (an informal EEO complaint). Stip. ¶ 124; DSMF ¶ 108; PRDSMF ¶ 108.
She complained in particular about the charge of sick leave when she was
teleworking, her 2013 productivity rating, and the letter of admonishment. DSMF
¶ 108; PRDSMF ¶ 108. She claimed discrimination based on disability and parental
status as well as retaliation. DSMF ¶ 108; PRDSMF ¶ 108.
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On August 11, 2014, Specialist Reyes encountered Special Agent Bustelo at a
briefing at the OIG. Stip. ¶ 128; DSMF ¶ 110; PRDSMF ¶ 110. Specialist Reyes
asked Special Agent Bustelo if he had spoken to AUSA Márquez-Marín as well as if
he had spoken to anyone in USAO management because AUSA Márquez-Marín had
received a letter of admonishment. Stip. ¶ 128; DSMF ¶ 110; PRDSMF ¶ 110. Either
that day or the next day, Special Agent Bustelo contacted FAUSA Domínguez to
inform her of his encounter. DSMF ¶ 110; PRDSMF ¶ 110. FAUSA Domínguez told
Special Agent Bustelo to supplement his statement to include the incident with
Specialist Reyes. DSMF ¶ 110; PRDSMF ¶ 110. After Special Agent Bustelo told her
that he did in fact remember that AUSA Márquez-Marín had asked him about the
use of the apartment by SUSAs Capó and Hernández, FAUSA Domínguez told him
to include this information as well in the supplemental statement. 183 DSMF ¶ 110;
PRDSMF ¶ 110.
On August 15, 2014, USAO management issued Specialist Reyes a letter of
reprimand signed by Special Counsel Novas. 184 Stip. ¶ 129; DSMF ¶ 111. As to AUSA
Márquez-Marín, Special Agent Bustelo confirmed in his supplemental statement on
September 2, 2014, that she had inquired about use of the apartment by SUSAs Capó
and Hernández during her conversation with him. DSMF ¶ 113.
AUSA Márquez-Marín admits the DOJ’s paragraph one hundred and ten but qualifies this
portion of it by quoting Special Agent Bustelo’s testimony on his change in memory to add context.
PRDSMF ¶ 110. The Court does not view the quoted testimony as adding important context to the
fact and therefore rejects the qualification.
184
AUSA Márquez-Marín does not respond to the DOJ’s paragraph one hundred and eleven and
it is therefore deemed admitted. However, the DOJ’s paragraph one hundred and eleven is consistent
with Joint Stipulation paragraph one hundred and twenty-nine. Compare DSMF ¶ 111, with Stip.
¶ 129.
183
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n.
Carmen
Márquez-Marín’s
Automobile Accident
August
11,
2014,
On August 11, 2014, Carmen Márquez-Marín was involved in a car accident in
the USAO parking lot. Stip. ¶ 132; DSMF ¶ 114; PRDSMF ¶ 114. AUSA MárquezMarín was returning to the office from court. PSAMF ¶ 225; DRPSAMF ¶ 225. After
she accessed the multi-level parking building, another car, driven by a Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) agent at a high rate of speed,
rammed into her car. PSAMF ¶ 225; DRPSAMF ¶ 225. As a result of the accident,
AUSA Márquez-Marín suffered serious injuries to her neck and back, suffering a
cervical sprain, a right shoulder sprain, a dorsal sprain/strain, and a lumbosacral
sprain/strain. PSAMF ¶ 226; DRPSAMF ¶ 226; Stip. ¶ 132; DSMF ¶ 114; PRDSMF
¶ 114.
On the night of the accident, AUSA Márquez-Marín wrote to SUSA Capó about
the accident and said she needed emergency coverage. 185 Stip. ¶ 133; DSMF ¶ 115;
PRDSMF ¶ 115. SUSA Capó responded, “Take as much time as you need. Hope you
get well soon.” Stip. ¶ 133; DSMF ¶ 115; PRDSMF ¶ 115. Two days later, on August
13, 2014, AUSA Márquez-Marín wrote to SUSA Capó. DSMF ¶ 115; PRDSMF ¶ 115.
She said that she was not well, that she had MRIs scheduled for the next day, and
that she had checked the calendar and noticed that she had two hearings the next
day. DSMF ¶ 115; PRDSMF ¶ 115. She stated, “I am sure this was already solved
AUSA Márquez-Marín objects to the DOJ’s introductory phrase for its paragraph one hundred
and fifteen, namely that SUSA Capó “came to her assistance” after the accident. PRDSMF ¶ 115. The
Court agrees with AUSA Márquez-Marín and it set forth the facts, not the DOJ’s characterization of
those facts. However, the Court does not view the facts as immaterial, as AUSA Márquez-Marín
suggests, so the Court did not strike any of the facts.
185
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but I am sending this as a reminder that I am out . . . recovering from a work related
trauma.” DSMF ¶ 115; PRDSMF ¶ 115. SUSA Capó responded that another AUSA
would cover her hearings and that he hoped that everything would go well the next
day. DSMF ¶ 115; PRDSMF ¶ 115.
Following the accident, on August 12, 2014, Administrative Officer Western
told AUSA Márquez-Marín that she was the USAO’s reasonable accommodation
coordinator, so if AUSA Márquez-Marín needed anything special for her injuries, she
should advise her supervisor and let her know as well. 186 Stip. ¶ 134; DSMF ¶ 116;
PRDSMF ¶ 116.
In the days after the accident, Officer López also told AUSA
Márquez-Marín that she would assist with her T&A and with filing a claim with the
OWCP. 187 Stip. ¶ 135; DSMF ¶ 117. Officer López told AUSA Márquez-Marín that
she was entitled to forty-five days of continuation of pay (COP) that would expire on
September 25, 2014, and that after that, she would need to use her leave or be placed
on leave without pay. Stip. ¶ 135; DSMF ¶ 117. For the first thirty days after the
accident, AUSA Márquez-Marín was out of the office, confined to her home except for
medical appointments, and being paid by OWCP, which eventually approved her
claim. 188 PSAMF ¶ 227; DRPSAMF ¶ 227; DSMF ¶ 118; DRPSMF ¶ 118.
AUSA Márquez-Marín objects to the DOJ’s introductory phrase for its paragraph one hundred
and sixteen, namely that “others also mobilized to assist” her after the accident. PRDSMF ¶ 116. The
Court agrees with AUSA Márquez-Marín and it stated the facts and not the DOJ’s characterization of
those facts. However, the Court disagrees with AUSA Márquez-Marín regarding the probative value
of the paragraph, see PRDSMF ¶ 116, and did not strike the facts.
187
AUSA Márquez-Marín neglects to respond to the DOJ’s paragraph one hundred and seventeen
and it is therefore deemed admitted
188
The DOJ interposes a qualified response. DRPSAMF ¶ 227. It asserts that AUSA MárquezMarín stated that she was out of the office for forty-five days. DRPSAMF ¶ 227. The Court declines
to accept the DOJ’s qualified response. There is a difference between being “confined at home” and
being out of the office.
186
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On August 28 and 29, 2014, AUSA Márquez-Marín, SUSA Capó, and AUSA
Cannon corresponded regarding a case in which the government was supposed to
designate a doctor for a mental competency hearing but failed to do so. DSMF ¶ 115;
PRDSMF ¶ 115. The Court issued an order for the government to comply with the
Court’s previous order by a certain date or show cause why it should not be held in
contempt. DSMF ¶ 115; PRDSMF ¶ 115. SUSA Capó asked AUSA Cannon to handle
the order and the case during AUSA Márquez-Marín’s absence.
DSMF ¶ 115;
PRDSMF ¶ 115. AUSA Cannon drafted a motion for an extension. DSMF ¶ 115;
PRDSMF ¶ 115.
o.
Carmen Márquez-Marín’s EEO
Claims, and Other Developments
Charge,
OWCP
On September 10, 2014, AUSA Márquez-Marín provided oral testimony to the
EEO investigator in Specialist Reyes’ EEO case. 189
Stip. ¶ 136; DSMF ¶ 118;
PRDSMF ¶ 118. On September 15, 2014, Attorney Berkan filed on AUSA MárquezMarín’s behalf a formal EEO complaint regarding the issues cited in her precomplaint. Stip. ¶ 137; PSAMF ¶ 208; DRPSAMF ¶ 208; DSMF ¶ 118; PRDSMF
¶ 118. In the complaint form, AUSA Márquez-Marín marked the boxes supplied by
the DOJ for “why you believe you were discriminated against.” PSAMF ¶ 209;
DRPSAMF ¶ 209.
She marked “disability (physical),” “reprisal,” and “parental
AUSA Márquez-Marín objects to the DOJ’s “editorializing” about the facts, namely by
juxtaposing her recuperative period with her testimony and thus implying that there was something
“untoward” going on. PRDSMF ¶ 118. The Court agrees with AUSA Márquez-Marín and omitted any
such implication.
189
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status.” PSAMF ¶ 209; DRPSAMF ¶ 209. She also provided a written statement in
which she mentioned the following:
•
her 2004 retaliation complaint against then United States Attorney García
and then FAUSA Rodríguez;
•
the fact that she prevailed since “they fabricated a case to justify [her]
illegal dismissal;”
•
the fact that since her reinstatement she has been subject to retaliation
“but things got worse after [she] was diagnosed with Shoulder Impingement
Syndrome and later cancer;”
•
her February 2014 surgery and Telework Agreement;
•
SUSA Capó’s presenting “obstacles to the certification of [her] work hours
and . . . without [her] knowledge certif[ying] . . . . sick leave . . . despite the
fact that [she] was working that week as per the telework agreement;”
•
SUSA Capó’s lower “productivity rating for the period [she] was receiving
chemotherapy and recovering from a serious exploratory surgery;”
•
Chief Ruiz’s denial of reconsideration by referring to “formulas and factors
that were created only for [her], as those formulas and considerations are
not used to evaluate other AUSAs in the US DOJ;”
•
the support SUSA Capó received from Chief Ruiz, FAUSA Domínguez, and
United States Attorney Rodríguez;
•
the EEO complaint presented by Specialist Reyes, who in 2018 provided his
complaint before a jury, which awarded him $300,000 in damages, and the
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fact that Specialist Reyes had “opposed the discriminatory practices of
upper management against [her] and other AUSA[]s that had filed EEO
complaints;”
•
the fact that on July 11, 2014, Specialist Reyes had informed her that he
had included her as a witness in his EEO case;
•
the admonishment letter and AUSA Márquez-Marín’s comments with
respect thereto; and
•
her need for “protection . . . as [she was] a witness with favorable
information for [Specialist] Reyes and his EEO complaint,” stating further
that “[United States Attorney] Rodríguez and most of her management
team are capable of anything as [her] own story has proven” and that on
July 24, 2014, before she was given the admonishment letter, AUSA
Márquez-Marín had seen United States Attorney Rodríguez, Chief Ruiz,
Chief of the White Collar and General Crimes Unit Timothy Henwood,
SUSA Capó, and Special Counsel Novas, “all of [whom] [we]re implied in
the EEO Complaint of [Specialist] Reyes,” meeting at the office of FAUSA
Domínguez. 190
The DOJ admits most of AUSA Márquez-Marín’s additional paragraph two hundred and nine.
DRPSAMF ¶ 209. However, the DOJ qualifies its response to make “three points.” DRPSAMF ¶ 209.
The first point is that the seventh bullet point contains an inaccurate quotation. DRPSAMF ¶ 209.
The Court reviewed the EEO complaint and agrees with the DOJ that AUSA Márquez-Marín’s
quotation is slightly inaccurate, and the Court replaced “in the office” with “in the US DOJ.” See
PSAMF, Attach. 4, Ex. BB: Formal EEO Compl., September 15, 2014 at 2 (EEO Compl.). The second
point is that the tenth bullet point contains a slightly inaccurate statement. DRPSAMF ¶ 209. The
Court reviewed the EEO complaint and agrees that AUSA Márquez-Marín wrote in the complaint that
Specialist Reyes had informed her on July 11, 2014, that he had included her as a witness in his EEO
case, not that he included her as a witness on July 11, 2014. See EEO Compl. at 3. The Court agrees
with the DOJ and corrected the statement. The third DOJ point is that AUSA Márquez-Marín made
190
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See PSAMF ¶ 209 (some alterations in original); DRPSAMF ¶ 209. This formal EEO
complaint was assigned case number USA-2014-00914. Stip. ¶ 137; DSMF ¶ 118;
PRDSMF ¶ 118.
From September 4 through September 19, 2014, Officer López and AUSA
Márquez-Marín exchanged certain emails. Stip. ¶ 138. On September 18, 2014,
AUSA Márquez-Marín wrote to Officer López and informed her that AUSA MárquezMarín’s doctor said that she would need at least three more weeks of physical
therapy. DSMF ¶ 119; PRDSMF ¶ 119. Officer López explained AUSA MárquezMarín’s options to her. DSMF ¶ 119; PRDSMF ¶ 119. On September 19, 2014,
Officer López sent AUSA Márquez-Marín information on the DOJ’s reasonable
accommodation policy as well as the form she needed to request an accommodation.
Stip. ¶ 139; DSMF ¶ 120; PRDSMF ¶ 120. Officer López also stated that AUSA
Márquez-Marín had “the option to work from home under the Flexible Work Schedule
(Telecommuting) as [she] ha[d] done in the past.” DSMF ¶ 120; PRDSMF ¶ 120. She
wrote, “Both [options] need the justification from your doctor, with specific
information under what conditions you can work, what work you can do, time frames,
if you can walk to the courthouse, if you can carry files, if you need resting periods,
etc.” DSMF ¶ 120 (alteration in original); PRDSMF ¶ 120.
On September 29, 2014, AUSA Márquez-Marín signed a “[FWO] Memorandum
of Understanding.” Stip. ¶ 140; DSMF ¶ 121; PRDSMF ¶ 121. On October 1, 2014,
a vague comment about having been retaliated against after her successful lawsuit and the DOJ
objects to her referencing her “entire alleged history of retaliation.” DRPSAMF ¶ 209. The Court
disagrees and overrules this third objection.
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OWCP denied AUSA Márquez-Marín’s claim, though it reversed this decision on
February 27, 2015. Stip. ¶ 141. On October 2, 2014, the EOUSA’s EEO staff emailed
United States Attorney Rodríguez a notice that AUSA Márquez-Marín had filed a
formal EEO complaint. Stip. ¶ 142; DSMF ¶ 122; PRDSMF ¶ 122. Four days later,
on October 6, 2014, United States Attorney Rodríguez signed the FWO Memorandum
of Understanding, approving AUSA Márquez-Marín’s telework request. Stip. ¶¶ 140,
143; DSMF ¶ 123; PRDSMF ¶ 123. According to United States Attorney Rodríguez,
this document enabled AUSA Márquez-Marín to telework. DSMF ¶ 121; PRDSMF
¶ 121. AUSA Márquez-Marín teleworked until May 2015. DSMF ¶ 123; PRDSMF
¶ 123.
That same day, October 6, 2014, FAUSA Domínguez wrote to Chief Pérez
(copying Chief Ruiz, Special Counsel Novas, SUSA Capó, and Officer López), “[United
States Attorney Rodríguez] has approved [AUSA Márquez-Marín]’s request that she
be allowed to work from home. Therefore, please begin assigning work from the
Appellate Division to her so that she can complete this work from home. Also, please
be advised that while [AUSA Márquez-Marín] is working from home she will be
supervised directly by you, and not [SUSA Capó].”
Stip. ¶ 144; DSMF ¶ 124;
PRDSMF ¶ 124.
On October 24, 2014, the EOUSA’s EEO staff notified AUSA Márquez-Marín,
through her attorney, that her EEO complaint had been accepted for investigation.
Stip. ¶ 145; DSMF ¶ 125; PRDSMF ¶ 125. Specifically, the three issues accepted for
investigation were (1) the charge of sick leave when AUSA Márquez-Marín was
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teleworking, (2) her 2013 productivity rating, and (3) the letter of admonishment.
Stip. ¶ 145; PSAMF ¶ 210; DRPSAMF ¶ 210; DSMF ¶ 125; PRDSMF ¶ 125. The
author of the acceptance letter also stated, “If your client believes that the issues have
not been correctly identified, please notify me, in writing, within five (5) calendar
days after you receive this letter and specify why you believe we have not correctly
identified the issues.” Stip. ¶ 145; PSAMF ¶ 210; DRPSAMF ¶ 210; DSMF ¶ 125;
PRDSMF ¶ 125.
Attorney Berkan wrote within five days on October 27, 2014. Stip. ¶ 146;
DSMF ¶ 126; PRDSMF ¶ 126. In the letter, Attorney Berkan noted that the issues
accepted were “technically correct.” DSMF ¶ 126; PRDSMF ¶ 126. However, she had
concerns that there may be some confusion if those issues were considered jointly
with the report of the EEO counselor since there were misstatements in that report.
DSMF ¶ 126; PRDSMF ¶ 126. She clarified “some of the events leading to the
presentation of [AUSA Márquez-Marín’s] claim.” DSMF ¶ 126; PRDSMF ¶ 126.
Included in Attorney Berkan’s clarification was the statement that AUSA MárquezMarín was paid less than similarly situated counterparts. DSMF ¶ 126; PRDSMF
¶ 126. She followed up in an email on November 6, 2014. Stip. ¶ 146; DSMF ¶ 126;
PRDSMF ¶ 126.
In a letter dated November 10, 2014, the EOUSA’s EEO staff characterized
Attorney Berkan’s October 27 letter and November 6, 2014, email as a request to
amend AUSA Márquez-Marín’s formal EEO complaint. DSMF ¶ 127; PRDSMF
¶ 127. Specifically, the EEO staff focused on Attorney Berkan’s allegation regarding
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AUSA Márquez-Marín’s pay and determined that the allegation was “like or related
to” the claims that had already been accepted. Stip. ¶ 147; PSAMF ¶ 211; DRPSAMF
¶ 211; DSMF ¶ 127; PRDSMF ¶ 127. Therefore, on November 10, 2014, AUSA
Márquez-Marín was deemed to have amended her EEO complaint to add a “new
claim,” namely an allegation regarding pay. Stip. ¶ 147; PSAMF ¶ 211; DRPSAMF
¶211; DSMF ¶ 127; PRDSMF ¶ 127. The EEO staff enclosed an “amended statement
of accepted issues,” and AUSA Márquez-Marín’s attorney was told once again to make
contact within five days if she or her client believed the amended issues had not been
correctly identified. Stip. ¶ 147; SMF ¶ 127; PRDSMF ¶ 127. The amended claim
accepted for investigation included “[w]hether management officials in the U[SAO]
discriminated against Complainant, [AUSA] Márquez[-Marín], based on reprisal
(protected EEO activity) when [AUSA Márquez-Marín] has allegedly received less
pay than other similarly situated A[USA]s in the office.” PSAMF ¶ 211; DRPSAMF
¶ 211; DSMF ¶ 127; PRDSMF ¶ 127. Neither Attorney Berkan nor AUSA MárquezMarín made contact to contest the amended statement of accepted issues in
accordance with the instructions in the November 10 letter. DSMF ¶ 127; PRDSMF
¶ 127.
p.
Carmen Márquez-Marín’s Appellate Work
As background, even though AUSA Márquez-Marín was not singled out, one of
the judges of the United States District Court in Puerto Rico criticized the quality of
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AUSA writing in the spring of 2011. 191 DSMF ¶ 27; PRDSMF ¶ 27. Based on this
feedback, FAUSA Domínguez reviewed samples of written work and after this
process was complete, SUSA Vázquez was instructed to send two AUSAs—AUSA
Márquez-Marín and AUSA Justin Martin—to attend a course at the DOJ’s National
Advocacy Center (NAC) in Columbia, South Carolina. DSMF ¶ 27; PRDSMF ¶ 27.
Although the course was geared toward civil attorneys, management believed that
AUSAs Márquez-Marín and Martin, who both handled criminal cases at the time,
would benefit from the emphasis on writing. DSMF ¶ 27; PRDSMF ¶ 27. According
to AUSA Márquez-Marín’s training record, she completed a “Motion Practice and
Brief Writing for Civil Attorneys Seminar” on May 27, 2011. DSMF ¶ 27; PRDSMF
¶ 27.
While being out of the office under OWCP following the August 11, 2014, motor
vehicle accident, AUSA Márquez-Marín started teleworking from home on appeals
and was supervised directly by Appellate Division Chief Pérez. 192 PSAMF ¶ 228;
DRPSAMF ¶ 228. AUSA Márquez-Marín did a total of seventeen or eighteen appeal
briefs during the period she was teleworking in February and March 2014 and the
AUSA Márquez-Marín admits the DOJ’s paragraph twenty-seven but notes that the judge had
not singled her out for criticism. PRDSMF ¶ 27. The Court added this clarification because it is
required to view the facts in the light most favorable to AUSA Márquez-Marín.
192
The DOJ interposes a qualified response to add details about the relevant dates. DRPSAMF
¶ 228. As the dates do not contradict AUSA Márquez-Marín’s additional paragraph two hundred and
twenty-eight, the Court did not include them because it is required to view the facts in the light most
favorable to AUSA Márquez-Marín.
191
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period after the August 11, 2014, accident for approximately nine months. 193 PSAMF
¶ 229; DRPSAMF ¶ 229.
On January 12, 2015, United States Attorney Rodríguez emailed USAO
employees to announce Jacqueline Novas’ appointment as the EAUSA. Stip. ¶ 154;
DSMF ¶ 142; PRDSMF ¶ 142.
United States Attorney Rodríguez made the
appointment. 194 PSAMF ¶ 230; DRPSAMF ¶ 230. This appointment took place while
AUSA Márquez-Marín was still working from home under the direct supervision of
Chief Pérez. PSAMF ¶ 230; DRPSAMF ¶ 230. EAUSA Novas retained her position
as Special Counsel to the United States Attorney. PSAMF ¶ 230; DRPSAMF ¶ 230.
On or around February 21, 2015, FAUSA Domínguez left the USAO to work in private
practice. DSMF ¶ 143; PRDSMF ¶ 143. Her departure had been planned for a long
time, well before the Guzman meetings. DSMF ¶ 143; PRDSMF ¶ 143.
In February 2015, upon the departure of FAUSA Domínguez from the USAO,
United States Attorney Rodríguez named White Collar and General Crimes Chief
Henwood as the FAUSA. 195 PSAMF ¶ 231; DRPSAMF ¶ 231. On February 23, 2015,
The parties disagree whether AUSA Márquez-Marín worked on seventeen or eighteen appeals
during these time periods. PSAMF ¶ 229; DRPSAMF ¶ 229. Rather than attempt to resolve the
dispute, the Court included both figures because the difference is immaterial.
194
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph two
hundred and thirty, noting the exact title and date of Jacqueline Novas’ appointment. DRPSAMF
¶ 230. The parties stipulate to these facts, see Stip. ¶ 154, and the Court included them already. Thus,
the Court views this qualification as moot.
195
Although the DOJ affirmatively states that United States Attorney Rodríguez announced her
appointment of Chief Henwood as FAUSA on February 23, 2015, it interposes a qualified response
asserting that AUSA Márquez-Marín does not make a proper record citation for her assertion that he
was named “toward the end of February 2015.” DRPSAMF ¶ 231. The Court is not clear why the DOJ
feels compelled to make this point, since the DOJ’s paragraph one hundred and forty-three says that
United States Attorney Rodríguez announced Chief Henwood’s appointment as FAUSA on February
23, 2015, a fact AUSA Márquez-Marín admits. DSMF ¶ 143; PRDSMF ¶ 143. But the DOJ is
technically correct, so the Court altered AUSA Márquez-Marín’s additional paragraph two hundred
and thirty-one to state that United States Attorney Rodríguez appointed Chief Henwood as the new
193
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United States Attorney Rodríguez sent an office-wide email to congratulate Timothy
Henwood as the new FAUSA. DSMF ¶ 143; PRDSMF ¶ 143.
United States Attorney Rodríguez also announced on February 23, 2015, that
EAUSA Novas would supervise the Appellate Division and EAUSA Novas became
Chief Pérez’s supervisor on that date. PSAMF ¶ 232; DRPSAMF ¶ 232; DSMF ¶ 143;
PRDSMF ¶ 143. EAUSA Novas, as Special Counsel, did not supervise attorneys
before being appointed EAUSA. 196 PSAMF ¶ 233; DRPSAMF ¶ 233. In Texas,
EAUSA Novas worked in small law firms and had limited appellate experience. 197
PSAMF ¶ 235; DRPSAMF ¶ 235. Also while in Texas, EAUSA Novas stayed in touch
FAUSA sometime during the month of February, not in late February. It used the DOJ’s paragraph
one hundred and forty-three to establish that the date of the announcement was February 23, 2015.
196
The first sentence of AUSA Márquez-Marín’s additional paragraph two hundred and thirtythree asserts that EAUSA Novas had no experience supervising attorneys before becoming EAUSA.
PSAMF ¶ 233. The DOJ denies this sentence as unsupported by the cited authority. DRPSAMF ¶ 233.
The Court reviewed the record citation and agrees with the DOJ that the record citation does not
support this proposition. The record citation supports the assertion that EAUSA Novas had not
supervised attorneys while she was Special Counsel (which the DOJ admits) and the Court included
this part of the paragraph.
AUSA Márquez-Marín’s additional paragraph two hundred and thirty-four asserts that before
she became the EAUSA, Jacqueline Novas had “little experience” with appeals. PSAMF ¶ 234. The
DOJ denies this assertion. DRPSAMF ¶ 234. Although the phrase, “little experience,” is vague, the
Court declines to insert this portion of AUSA Márquez-Marín’s additional paragraph two hundred and
thirty-four into the statement of facts. The record citation reveals, among other things, that EAUSA
Novas worked for a year in the Appellate Division of the USAO and handled about twenty appeals.
Decl. of Kenneth Shaitelman, Attach. 5, Ex. 15: Dep. of Jacqueline Novas at 32:22-33:04 (Dep. of Novas).
She also previously worked on appeals in civil litigation in Puerto Rico and Texas. Dep. of Novas at
11:03-18, 23:22-24. The DOJ affirmatively states that she served as Deputy Solicitor General of Puerto
Rico in the early 1990s. Dep. of Novas at 10:20-11:02, 14:10-15:10. In light of this information, the
Court concludes that “little experience” is not an accurate reflection of the record.
Similarly, the Court declines to include in the statement of facts that EAUSA Novas had “no
trials under her belt” in her first stint in the USAO, which the DOJ denies. See PSAMF ¶ 234;
DRPSAMF ¶ 234. This assertion is not supported by the cited record. See Dep. of Novas at 9:24-10:3.
Therefore, the Court struck the entire paragraph from the statement of facts.
197
Again, AUSA Márquez-Marín’s additional paragraph two hundred and thirty-five overstates
EAUSA Novas’ asserted lack of appellate experience. PSAMF ¶ 235. It states that EAUSA had
virtually no appellate experience in Texas, PSAMF ¶ 235, and the DOJ denies this fact. DRPSAMF
¶ 235. Rather than saying she had “virtually no appellate experience” while in Texas, the Court
inserted that she had limited appellate experience.
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with United States Attorney Rodríguez, and she secured a position with the USAO
upon her return to Puerto Rico without applying for the job. 198 PSAMF ¶ 236;
DRPSAMF ¶ 236. It was then EAUSA Novas worked for about one year in the
Appellate Division supervised by Chief Pérez. PSAMF ¶ 237; DRPSAMF ¶ 237. She
testified that she handled about twenty appeals during that year. PSAMF ¶ 237;
DRPSAMF ¶ 237. Then, ten years later and after being appointed as EAUSA, having
limited additional experience with appeals, EAUSA Novas was assigned to supervise
Chief Pérez. 199 PSAMF ¶ 237; DRPSAMF ¶ 237.
After FAUSA Domínguez left, United States Attorney Rodríguez met with
FAUSA Henwood and EAUSA Novas to implement remedial measures for the
Appellate Division. DSMF ¶ 144; PRDSMF ¶ 144. On March 12, 2015, FAUSA
Henwood circulated to the entire office an email with the subject line, “NEW
MANDATORY APPELLATE AND TRIAL COORDINATION PROCEDURES.” Stip.
¶ 155; DSMF ¶ 144; PRDSMF ¶ 144. Attached to the email was a memorandum
containing policies, practices, and procedures (the protocol). Stip. ¶ 155; DSMF
¶ 144; PRDSMF ¶ 144.
The purpose of the protocol was to improve certain
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph two
hundred and thirty-six, asserting that even though EAUSA Novas did not apply for the job, she was
interviewed by then United States Attorney García. DRPSAMF ¶ 236. The Court declines to accept
the DOJ’s qualified response because it does not contradict AUSA Márquez-Marín’s additional
paragraph two hundred and thirty-six.
199
AUSA Márquez-Marín’s additional paragraph two hundred and thirty-seven says that EAUSA
Novas had no additional appellate experience after one year of appellate work at the USAO. PSAMF
¶ 237. The DOJ denies this assertion. DRPSAMF ¶ 237. This assertion is contradicted by AUSA
Márquez-Marín’s additional paragraph two hundred and thirty-five and the record. To remain
consistent, the Court inserted “limited” experience with appeals in AUSA Márquez-Marín’s additional
paragraph two hundred and thirty-seven.
198
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inefficiencies in workload and communication between the Criminal and Appellate
Divisions of the USAO. DSMF ¶ 144; PRDSMF ¶ 144.
q.
The 2014 Evaluation
In late February 2015, USAO supervisors were preparing evaluations for
AUSAs for the work they performed during 2014. Stip. ¶ 156; DSMF ¶ 145; PRDSMF
¶ 145.
On February 19, 2015, before FAUSA Domínguez’s departure from
employment at the USAO, Appellate Division Chief Pérez wrote to Human Resources
Specialist Rosemary Torres and stated that he had doubts about AUSA MárquezMarín’s evaluation because although she had been working on appeals on account of
her health situation, the evaluation form—in actuality, the Performance Work Plan
and Appraisal Record—she had signed at the beginning of the year was from the
Criminal Division and employed criteria “different to the categories for the appellate
attorneys.” Stip. ¶ 156; DSMF ¶ 145; PRDSMF ¶ 145. Before she left the office,
however, FAUSA Domínguez had instructed Chief Pérez to complete AUSA MárquezMarín’s evaluation. DSMF ¶ 147; PRDSMF ¶ 147.
The next day, Appellate Division Chief Pérez emailed Criminal Division Chief
Ruiz and said that he had met with former FAUSA Domínguez to discuss this issue.
Stip. ¶ 156; DSMF ¶ 146; PRDSMF ¶ 146. In his email, Chief Pérez stated that he
had told former FAUSA Domínguez that Chief Ruiz was the one who discussed with
AUSA Márquez-Marín her performance work plan. DSMF ¶ 146; PRDSMF ¶ 146.
He also pointed out that the criteria in the performance work plan that Chief Ruiz
had discussed with AUSA Márquez-Marín were different from the criteria for
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appellate attorneys. DSMF ¶ 146; PRDSMF ¶ 146. He concluded, “I can assist you
in completing the evaluation and can tell you that her performance during the time
period she has been working on appeals is outstanding.” DSMF ¶ 146; PRDSMF
¶ 146. On February 24, 2015, Chief Ruiz forwarded Chief Pérez’s email to EAUSA
Novas. Stip. ¶ 157. EAUSA Novas then wrote to Chief Pérez, who replied. Stip.
¶ 157.
One of EAUSA Novas’ first instructions to her new supervisee, Chief Pérez,
was to tell him to complete AUSA Márquez-Marín’s 2014 evaluation. 200 PSAMF
¶ 238; DRPSAMF ¶ 238. On February 24, 2015, EAUSA Novas wrote to Chief Pérez
and stated that he had been instructed by former FAUSA Domínguez to complete
AUSA Márquez-Marín’s evaluation. DSMF ¶ 148; PRDSMF ¶ 148. She wrote,
“Please complete the evaluation with the input you may need from [SUSA] Cap[ó]
who was her direct supervisor in the Violent Crimes Unit [in the Criminal Division].
I will deliver the evaluation later on today.” DSMF ¶ 148; PRDSMF ¶ 148. Chief
Pérez agreed. DSMF ¶ 148; PRDSMF ¶ 148. Also on February 24, 2015, one day
after having been appointed to supervise appeals, EAUSA Novas went to Chief
Pérez’s office and “directed that [he] must do [AUSA Márquez-Marín’s]
evaluation.” 201
PSAMF ¶ 238 (some alterations in original); DRPSAMF ¶ 238.
The DOJ denies the portion of AUSA Márquez-Marín’s additional paragraph two hundred and
thirty-eight that contends this was one of EAUSA’s first instructions to her new supervisee, arguing
that it is unsupported by the cited authority. DRPSAMF ¶ 138. The Court reviewed the cited portion
of the record and finds that, though the record does not explicitly support this statement, it is a
reasonable inference viewing the facts in the light most favorable to AUSA Márquez-Marín since
EAUSA was assigned to supervise Chief Pérez the day before. Thus, the Court rejects the denial.
201
The DOJ interposes a qualified response to the quoted portion of AUSA Márquez-Marín’s
additional paragraph two hundred and thirty-eight on the ground that it is hearsay. DRPSAMF ¶ 238.
The Court overrules the qualified response. In the Court’s view, the statement of EAUSA Novas, as a
200
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Nevertheless, when EAUSA Novas delivered the form to Chief Pérez, Chief Pérez—
evidently anticipating some resistance on the part of EAUSA Novas—told his new
supervisor, “I’m telling you now that I’m rating her as ‘outstanding,’ because that’s
the type of evaluation she deserves, given the type of work she has done during this
period.” 202 PSAMF ¶ 239; DRPSAMF ¶ 239; DSMF ¶ 149; PRDSMF ¶ 149. According
to Chief Pérez, EAUSA Novas responded to Chief Pérez, “You cannot rate her as
outstanding.” 203 PSAMF ¶ 240 (emphasis omitted); DRPSAMF ¶ 240; DSMF ¶ 149;
PRDSMF ¶ 149.
Controlling himself, Chief Pérez replied, “I’m rating her as
‘outstanding.’ But since you are the evaluator, you can change the evaluation and
carry whatever consequences stem from there.” PSAMF ¶ 240 (emphasis omitted);
DRPSAMF ¶ 240; DSMF ¶ 149; PRDSMF ¶ 149.
On February 25, 2015, Chief Pérez contacted Officer López to get an evaluation
form of the type used to rate appellate attorneys to evaluate AUSA Márquez-Marín’s
performance during the time she had been working on appeals. Stip. ¶ 158; DSMF
¶ 150; PRDSMF ¶ 150. Chief Pérez informed Officer López that he had been asked
person in management, is attributable to the Defendant and the Court assumes, based on Chief Pérez’s
February 24, 2015, email to AUSA Márquez-Marín, that he would confirm the contents of the email.
See PSAMF, Attach. 4, Ex. KK: Email from Nelson Pérez to Carmen Márquez, February 24, 2015.
202
The DOJ and AUSA Márquez-Marín interpret very differently Chief Pérez’s deposition
testimony on this point. See DSMF ¶ 149; PRDSMF ¶ 149. The DOJ says that Chief Pérez said to
EAUSA Novas that if he had to use the Violent Crimes Unit evaluation form, he would have to rate
AUSA Márquez-Marín as outstanding. DSMF ¶ 149. AUSA Márquez-Marín says that he told EAUSA
Novas, independent of the evaluation form, that he would have to rate her as outstanding. PRDSMF
¶ 149. The Court reviewed the portion of Chief Pérez’s deposition testimony in dispute and concludes
it is ambiguous. In accordance with its obligation to view conflicting evidence in the light most
favorable to AUSA Márquez-Marín, the Court adopted her version.
203
The DOJ denies that EAUSA Novas told Chief Pérez that he could not rate AUSA MárquezMarín as “outstanding” in her 2014 evaluation. DRPSAMF ¶ 240. The Court rejects this denial
because it is required to view conflicting evidence in the light most favorable to AUSA Márquez-Marín.
However, the Court altered the paragraph slightly to indicate that this fact is based on Chief Pérez’s
testimony.
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by EAUSA Novas the previous day to do the evaluation and that he needed to
complete the evaluation as soon as possible. Stip. ¶ 158. Officer López clarified that
Chief Pérez was to use appellate criteria in his evaluation of AUSA Márquez-Marín
and that, as AUSA Márquez-Marín had not officially been transferred from the
Violent Crimes Unit, Chief Pérez should send his evaluation to SUSA Capó. 204 DSMF
¶ 150; PRDSMF ¶ 150. SUSA Capó would give the evaluation to AUSA MárquezMarín. DSMF ¶ 150; PRDSMF ¶ 150.
On March 5, 2015, Chief Pérez sent SUSA Capó his input for AUSA MárquezMarín’s evaluation. Stip. ¶ 159; DSMF ¶ 151; PRDSMF ¶ 151. Chief Pérez said he
would give AUSA Márquez-Marín an “outstanding” rating for each element. Stip.
¶ 159; DSMF ¶ 151; PRDSMF ¶ 151. On the draft evaluation form Chief Pérez
forwarded to SUSA Capó containing Chief Pérez’s input, Chief Pérez noted that his
input was for “the time AUSA Márquez[-Marín] ha[d] been working on appeals.” Stip.
¶ 160.
The performance elements listed on the form completed by Chief Pérez
included the following: Conducts Legal Research and Writing; Develops Appellate
Litigation Strategy; Presents Oral Argument; Review and Advises Others; and
Productivity and Effectiveness in Dealing with Courts, Clients, and Others. Stip.
¶ 161. Chief Pérez provided written justification for each of the “outstanding” ratings
he proposed for AUSA Márquez-Marín. Stip. ¶ 162.
AUSA Márquez-Marín denies the DOJ’s paragraph one hundred and fifty, stating it
misrepresents Chief Pérez’s testimony. PRDSMF ¶ 150. Having reviewed Chief Pérez’s deposition
transcript and Officer López’s sworn declaration, see Decl. of Kenneth Shaitelman, Attach. 4, Ex. 14:
Dep. of Nelson Pérez-Sosa at 178:23-180:09; Decl. of Carmen Pura López ¶ 38 (ECF No. 104), the Court
amalgamated the DOJ’s paragraph one hundred and fifty and AUSA Márquez-Marín’s response to
reflect what likely happened, which lands between the two advocacy versions.
204
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SUSA Capó took issue with Chief Pérez’s recommendation as to the element
related to AUSA Márquez-Marín’s writing, stating he noticed that several documents
prepared by AUSA Márquez-Marín had errors in legal citation, punctuation, and
grammar. Stip. ¶ 163; DSMF ¶ 151; PRDSMF ¶ 151. Nevertheless, SUSA Capó
agreed to defer to Chief Pérez since Chief Pérez had been reviewing AUSA MárquezMarín’s written work product during the previous months. Stip. ¶ 163; DSMF ¶ 151;
PRDSMF ¶ 151. Three days later, on March 9, 2015, SUSA Capó recommended
AUSA Márquez-Marín for a raise and forty-hour time-off award. Stip. ¶ 164; DSMF
¶ 152; PRDSMF ¶ 152. At the same time, SUSA Capó recommended the exact same
for AUSAs Victor Acevedo, Max Pérez, Cannon, Alexander Alum, Luke Cass, and
Canáls. Stip. ¶ 165. On March 12, 2015, SUSA Capó and Chief Ruiz signed AUSA
Márquez-Marín’s 2014 evaluation, and it was sent to AUSA Márquez-Marín. Stip.
¶ 166; DSMF ¶ 153; PRDSMF ¶ 153.
AUSA Márquez-Marín received an
“outstanding” rating on all of her elements and an “outstanding” rating overall. Stip.
¶ 166; DSMF ¶ 153; PRDSMF ¶ 153. In early April 2015, United States Attorney
Rodríguez approved AUSA Márquez-Marín for a $5000 raise during the APR review
process. Stip. ¶ 167; DSMF ¶ 154; PRDSMF ¶ 154.
r.
April 2015 Request for Reasonable Accommodation
At some point after the August 2014 automobile accident, AUSA MárquezMarín began seeing Dr. Dwight Santiago Pérez, FACSM, CEDIR, CIME, DipMED
(Pain Management), a well-recognized specialist in Sports Medicine and Pain
Management, as well as a Certified Independent Medical Examiner. PSAMF ¶ 278;
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DRPSAMF ¶ 278. Over several months, Dr. Santiago submitted periodic reports on
AUSA Márquez-Marín’s progress, including his observations about when she could
return to work and in what circumstances. PSAMF ¶ 279; DRPSAMF ¶ 279. On
April 14, 2015, after discussing the matter with her physician, AUSA Márquez-Marín
requested reasonable accommodation in order to allow her to return to the USAO
from her teleworking under circumstances that would not harm her health. 205
PSAMF ¶ 280; DRPSAMF ¶ 280. Given that AUSA Márquez-Marín’s physicians had
emphasized to her the importance of diminishing her levels of stress, she believed
that it was very important for her to be relieved of EAUSA Novas’ supervision, which
AUSA Márquez-Marín considered indirect but quite invasive. 206 PSAMF ¶ 281;
DRPSAMF ¶ 281. The insertion of EAUSA Novas into AUSA Márquez-Marín’s chain
The DOJ admits that AUSA Márquez-Marín made a demand for reasonable accommodation
on April 14, 2015, but denies the remainder of AUSA Márquez-Marín’s additional paragraph two
hundred and eighty as not supported by the record citation. DRPSAMF ¶ 280. The Court rejects the
DOJ’s denial. AUSA Márquez-Marín’s record citation is to the Defendant’s paragraph one hundred
and fifty-five of his statement of facts. This paragraph itself refers to Exhibit Sixty-Eight of the Joint
Stipulation. DSMF ¶ 155. Exhibit Sixty-Eight is a three-paragraph email dated April 14, 2015, from
AUSA Márquez-Marín to Officer Western with a copy to Officer López that contains sufficient
information to support AUSA Márquez-Marín’s additional paragraph two hundred and eighty in its
entirety. See Stip., Attach. 2, Ex. 68.
206
The DOJ objects to much of AUSA Márquez-Marín’s additional paragraph two hundred and
eighty-one. DRPSAMF ¶ 281. Acknowledging that USA Márquez-Marín placed these facts in her
sworn declaration, the DOJ argues that AUSA Márquez-Marín’s sworn declaration contradicts her
prior sworn statements. DRPSAMF ¶ 281. The Court declines to accept the DOJ’s denials. It is true
that later than April 14, 2015, AUSA Márquez-Marín had made the same complaint about EAUSA
Novas, but this does not preclude AUSA Márquez-Marín experiencing stress from earlier fearing
EAUSA Novas’ interference, knowing her management style and closeness with United States
Attorney Rodríguez. The Court views the differences between AUSA Márquez-Marín’s statements as
ground for cross-examination, not exclusion. The DOJ also argues that AUSA Márquez-Marín’s
statement regarding her physicians emphasizing reducing her stress level is unsupported by the cited
testimony. DRPSAMF ¶ 281. The Court views this information as within AUSA Márquez-Marín’s
personal knowledge. Finally, the DOJ denies that EAUSA’s supervision was “invasive.” DRPSAMF
¶ 281. The Court altered the paragraph slightly to reflect that EAUSA Novas being invasive is AUSA
Márquez-Marín’s perception based on her testimony.
205
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of command, which had taken place in February, had caused her significant stress,
impeding her recovery. PSAMF ¶ 281; DRPSAMF ¶ 281.
On April 14, 2015, AUSA Márquez-Marín emailed Officer Western (copying
Officer López) with the subject line “Request for reasonable accommodation.” Stip.
¶ 168; PSAMF ¶ 282; DRPSAMF ¶ 282; DSMF ¶ 155; PRDSMF ¶ 155. In this email,
AUSA Márquez-Marín summarized a number of her medical issues, as well as her
parental status as a single mother for two young children. PSAMF ¶ 282; DRPSAMF
¶ 282. Also in the email, AUSA Márquez-Marín asked to return to the USAO for four
hours daily with “temporary assignment to the civil division” as a reasonable
accommodation. 207 PSAMF ¶ 282; DRPSAMF ¶ 282; DSMF ¶ 155; PRDSMF ¶ 155.
AUSA Márquez-Marín also stated that she wanted to continue working her
environmental (criminal) cases. DSMF ¶ 155; PRDSMF ¶ 155.
Officer Western forwarded AUSA Márquez-Marín’s request to United States
Attorney Rodríguez, FAUSA Henwood, EAUSA Novas, and Officer López and stated,
“[Officer López] is forwarding this to [the EOUSA’s GCO] for their guidance . . .. As
the accommodation coordinator, I need specific information from the doctor regarding
any sort of health requirements. We always ask for this. I’m sure [GCO] will be
mentioning this.”
Stip. ¶ 169 (some alterations in original); PSAMF ¶ 283;
DRPSAMF ¶ 283; DSMF ¶ 156; PRDSMF ¶ 156. The next day, April 15, 2015, Officer
Western wrote to AUSA Márquez-Marín and referred her to a USAP that described
The DOJ denies that AUSA Márquez-Marín proposed four hours per day in the office as a
reasonable accommodation. DRPSAMF ¶ 282. The Court examined the Márquez-Marín email and
disagrees with the DOJ. The Court declines to accept the DOJ’s denial.
207
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what information she needed to submit, including a reference to the intranet site
where she could get the USAP applicable to her request. Stip. ¶ 170; PSAMF ¶ 284;
DRPSAMF ¶ 284; DSMF ¶ 157; PRDSMF ¶ 157. AUSA Márquez-Marín responded,
“Ok excellent.” Stip. ¶ 170; DSMF ¶ 157; PRDSMF ¶ 157.
On May 1, 2015, AUSA Márquez-Marín attempted to return to work at the
USAO but she was not allowed to do so until she obtained further medical
documentation. PSAMF ¶ 286; DRPSAMF ¶ 286; DSMF ¶ 158; PRDSMF ¶ 158.
Officer López told her the latest medical certificate that management had for her
stated, “Presently active in teleworking at home.” 208 DSMF ¶ 158; PRDSMF ¶ 158.
Officer López told her that management could not allow her to return until the doctor
provided a certification stating the date and conditions under which she could do so.
DSMF ¶ 158; PRDSMF ¶ 158.
Also on May 1, 2015, Officer López sent an email to United States Attorney
Rodríguez, FAUSA Henwood, and EAUSA Novas, describing AUSA Márquez-Marín’s
attempt to return to work, as well as her inquiries about her salary. Stip. ¶ 171. On
Saturday, May 16, 2015, AUSA Márquez-Marín’s physician, Dr. Santiago, wrote a
“return to work” report for her, and on May 18, 2015, she submitted the doctor’s
completed form. 209 Stip. ¶ 172; PSAMF ¶ 287; DRPSAMF ¶ 287; DSMF ¶ 159;
AUSA Márquez-Marín interposes a qualified response to the DOJ’s paragraph one hundred
and fifty-eight, providing background about Dr. Santiago’s return to work recommendations and
EAUSA Novas’ supervision. PRDSMF ¶ 158. As the Court elsewhere addresses this factual issue, the
Court will not do so again here.
209
The DOJ interposes a qualified response, noting that Dr. Santiago, not AUSA Márquez-Marín,
wrote the doctor’s report. DRPSAMF ¶ 287. The Court overrules the DOJ’s qualified response. The
Court does not interpret AUSA Márquez-Marín’s additional paragraph two hundred and eighty-seven
as asserting that she wrote the doctor’s report. The DOJ also corrects the date AUSA Márquez-Marín
submitted the report from May 16, 2015, to May 18, 2015, consistent with the record. DRPSAMF
208
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PRDSMF ¶ 159. Dr. Santiago recommended that “as soon as authorized,” AUSA
Márquez-Marín return to work in the office for four hours per day, with the remainder
conducted as telework. Stip. ¶ 172; PSAMF ¶ 287; DRPSAMF ¶ 287; DSMF ¶ 159;
PRDSMF ¶ 159.
Dr. Santiago reported, among other things, AUSA Márquez-Marín’s pain
conditions, need for analgesics, anti-inflammatory, and muscle relaxant medications,
advanced joint osteoarthritis, aggravation of her right shoulder impingement, other
severe systemic problems requiring surgeries and treatments over a period of several
years, and limitations on her normal body movement capacity requiring stretching,
standing, and the need to control pain exacerbation and aggravation. PSAMF ¶ 288;
DRPSAMF ¶ 288.
Dr. Santiago also stated that AUSA Márquez-Marín needed
several reasonable accommodations, including an adjustable work chair and relief
from carrying heavy objects and from work-related travel. Stip. ¶ 172; DSMF ¶ 159;
PRDSMF ¶ 159.
Dr. Santiago recommended a transfer to the Civil Division at a later point.
Stip. ¶ 172; DSMF ¶ 159; PRDSMF ¶ 159. He recommended that AUSA MárquezMarín be moved to work which removed her from “very stressful situations.” 210
¶ 287. The Court reviewed the cited record, agrees with the DOJ on this point, and altered AUSA
Márquez-Marín’s paragraph accordingly.
In response to the DOJ’s paragraph one hundred and fifty-nine, AUSA Márquez-Marín
interposes a qualified response, objecting to the emphasis the DOJ added to the fact. The Court does
not adopt the DOJ’s emphasis and therefore rejects this qualification.
210
The DOJ interposes a qualified response, noting that Dr. Santiago did not suggest the Civil
Division based on his own knowledge of the organization of the USAO. DRPSAMF ¶ 290. The DOJ
points out that AUSA Márquez-Marín told Dr. Santiago that the Civil Division was less stressful.
DRPSAMF ¶ 290. The Court declines to accept the DOJ’s qualified response. AUSA Márquez-Marín’s
additional paragraph two hundred and ninety clearly states that Dr. Santiago made this
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PSAMF ¶ 290; DRPSAMF ¶ 290. After discussing this with AUSA Márquez-Marín,
Dr. Santiago proposed a reasonable accommodation assigning her to the Civil
Division, which “is less stressful physically and mentally.” PSAMF ¶ 290; DRPSAMF
¶ 290. He wrote, “If possible, it is strongly recommended that when she returns to
full work duties to consider reassigning [AUSA Márquez-Marín] to this type of [Civil]
work.” Stip. ¶ 172 (some alterations in original); DSMF ¶ 159; PRDSMF ¶ 159. Dr.
Santiago also provided a list of “OWCP accepted work-related injuries”: cervical
sprain/strain, right shoulder joint sprain, dorsal sprain/strain, and lumbosacral
sprain/strain—all with the accompanying International Classification of Diseases,
Ninth Revision (ICD-9) codes. Stip. ¶ 173. In this report, as he had in several other
earlier reports, Dr. Santiago pointed out the need for reasonable accommodation in
order to successfully reintegrate AUSA Márquez-Marín back into the workplace. 211
PSAMF ¶ 289; DRPSAMF ¶ 289.
On Monday, May 18, 2015, AUSA Márquez-Marín began to spend four hours
each working day in the office. 212 DSMF ¶ 160; PRDSMF ¶ 160. On the same day,
over a month after Officer Western had told her what she needed to submit, after
recommendation after discussing it with his patient and the Court does not assume that Dr. Santiago
is an expert in the USAO’s organization and division duties.
211
The DOJ denies the portion of AUSA Márquez-Marín’s additional paragraph two hundred and
eighty-nine that asserts that Dr. Santiago had previously pointed out the need for reasonable
accommodation. DRPSAMF ¶ 289. The Court declines to accept the DOJ’s denial. AUSA MárquezMarín’s additional paragraph two hundred and eighty-nine is consistent with AUSA Márquez-Marín’s
additional paragraph two hundred and seventy-nine, which the DOJ admits. See PSAMF ¶ 279 (“Over
several months, Dr. Santiago submitted periodic reports on [AUSA] Márquez[-Marín]’s progress,”
including his “observations about when [she] could return to work and in what circumstances”);
DRPSAMF ¶ 279.
212
AUSA Márquez-Marín denies the portion of the DOJ’s paragraph one hundred and sixty that
states that this action was based on Dr. Santiago’s report, arguing that it is unsupported by the cited
portion of the record. PRDSMF ¶ 160. The Court reviewed the cited portion of the record, agrees with
AUSA Márquez-Marín, and struck that portion of the paragraph.
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reviewing the USAP and as required by the policy, AUSA Márquez-Marín sent to
Chief Pérez—copying Officer Western—what she stated was “a request for reasonable
accommodation in compliance with USAP No. 3-5, 101-001-6C.” Stip. ¶ 174; PSAMF
¶ 285; DRPSAMF ¶ 285; DSMF ¶ 161; PRDSMF ¶ 161. On one of the forms AUSA
Márquez-Marín submitted, she requested the following specific accommodation:
“[t]emporary assignment to the Civil Division once [she] start[s] working 8 hours at
the office.” Stip. ¶ 174; DSMF ¶ 161; PRDSMF ¶ 161. She also incorporated by
reference Dr. Santiago’s “return to work” report, which listed other reasonable
accommodation requests. Stip. ¶ 174; DSMF ¶ 161; PRDSMF ¶ 161. The next day,
Chief Pérez forwarded the request to EAUSA Novas. Stip. ¶ 175; DSMF ¶ 162;
PRDSMF ¶ 162. Chief Pérez wrote that although the request appeared to be justified,
he did not think he had the authority to approve it. Stip. ¶ 175; DSMF ¶ 162;
PRDSMF ¶ 162. EAUSA Novas thanked him, pointed out that Officer Western was
the district’s reasonable accommodation official, and said that the request would be
evaluated. Stip. ¶ 175; DSMF ¶ 162; PRDSMF ¶ 162.
On May 20, 2015, United States Attorney Rodríguez hosted a meeting during
which AUSA Márquez-Marín’s request for transfer to the Civil Division was
discussed. DSMF ¶ 163; PRDSMF ¶ 163. At the meeting, Civil Division Chief
Ramírez stated that he believed it would be a good idea to inform AUSA MárquezMarín what her duties would be in the Civil Division so that she would know what
an assignment to the Civil Division would entail. DSMF ¶ 163; PRDSMF ¶ 163. On
the same day, Chief Ramírez sent Officer Western a summary of work in the Civil
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Division. Stip. ¶ 176; DSMF ¶ 163; PRDSMF ¶ 163. Officer Western, in turn,
forwarded this information to EAUSA Novas. Stip. ¶ 176; DSMF ¶ 163; PRDSMF
¶ 163. EAUSA Novas responded, “I’ll meet with [Chief Pérez] and discuss with him
what other accommodations we can do for her in Appellate Division. Once we have
that, then you, [Chief Pérez] and [Chief Ramírez] can meet with [AUSA MárquezMarín] and present everything so that she can decide if she still wants to be
transferred temporarily to the Civil Division.” Stip. ¶ 176; DSMF ¶ 163; PRDSMF
¶ 163.
Also on May 20, 2015, a meeting between Chief Pérez, EAUSA Novas, and
Officer López was held in EAUSA Novas’ office. PSAMF ¶ 291; DRPSAMF ¶ 291.
With respect to AUSA Márquez-Marín’s request for a temporary transfer, EAUSA
Novas stated, “This is not reasonable accommodation. This is a telework issue.” 213
PSAMF ¶ 291; DRPSAMF 291. On the same day, United States Attorney Rodríguez
approved AUSA Márquez-Marín for a forty-hour time-off award, which had been
recommended by Chief Pérez, who had included a specific justification therefor. Stip.
¶ 177; DSMF ¶ 164; PRDSMF ¶ 164. Officer López agreed, however, that a time-off
award was given every year to every employee. 214 DSMF ¶ 164; PRDSMF ¶ 164.
The DOJ interposes a qualified response, noting that AUSA Márquez-Marín misunderstands
the nature and purpose of the May 20, 2015, meeting. DRPSAMF ¶ 291. The Court rejects the DOJ’s
qualified response because it does not contradict the contents of AUSA Márquez-Marín’s additional
paragraph two hundred and ninety-one.
214
AUSA Márquez-Marín objects to the implication of the DOJ’s paragraph one hundred and
sixty-four that it had given AUSA Márquez-Marín an unusual benefit and extensively quotes Officer
López’s testimony. PRDSMF ¶ 164. Consistent with its obligation to view contested facts in the light
most favorable to AUSA Márquez-Marín, the Court included the gist of Officer López’s testimony.
213
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On June 4, 2015, Officer Western wrote Officer López and EAUSA Novas, with
copies to Jacqueline Schesnol of the EOUSA’s GCO, FAUSA Henwood, and United
States Attorney Rodríguez. Stip. ¶ 178; DSMF ¶ 165; PRDSMF ¶ 165. Officer
Western wrote in part:
[AUSA Márquez-Marín] asked me would she be switched to the Civil
Division and I said I am not the decision maker on that one. I am not
qualified to decide where the AUSAs would be assigned. . . . She told me
not to rush. She had read the USAP and I was within my 30 day
window. It is actually 20 business days. I told her I would respond soon.
I let her know that per the USAP I had to fill out the required form
100B.” 215
DSMF ¶ 165; PRDSMF ¶ 165.
Later that same day, Officer Western sent AUSA Márquez-Marín a response
to her request. DSMF ¶ 166; PRDSMF ¶ 166. The response (1) approved a plan for
AUSA Márquez-Marín to telework and gradually transition into an eight-hour
schedule, (2) approved the request for an adjustable work chair, (3) granted her relief
from carrying heavy objects, and (4) granted her permission not to undertake any
work-related travel. DSMF ¶ 166; PRDSMF ¶ 166. As to the transfer to the Civil
Division, the response stated, “The request to transfer to the Civil Division is
premature. Once AUSA Márquez[-Marín]’s doctor certifies that she is able to work
[eight] hours every day and indicates what she can and cannot do, then the USAO
can then better assess the request.” DSMF ¶ 166 (some alterations in original);
AUSA Márquez-Marín admits the DOJ’s paragraph one hundred and sixty-five; however, she
interposes a qualified response, positing several clarifications. PRDSMF ¶ 165. Consistent with its
obligation to view contested facts in the light most favorable to AUSA Márquez-Marín, the Court
included her clarifications. See Decl. of Lisa Western, Attach. 1, Ex. 2 (ECF No. 115). AUSA MárquezMarín also urges the Court not to infer that she was uninterested in having a quick resolution of her
request for reasonable accommodation. PRDSMF ¶ 165. The Court draws no such inference.
215
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PRDSMF ¶ 166. AUSA Márquez-Marín acknowledged that, at the time, she had not
yet started working eight hours at the office each day. DSMF ¶ 166; PRDSMF ¶ 166.
On June 9, 2015, AUSA Márquez-Marín emailed Officer Western, copying
Chief Pérez, EAUSA Novas, and her attorney, and expressed concern about the
decision made regarding her assignment to the Civil Division. Stip. ¶ 179; DSMF
¶ 167; PRDSMF ¶ 167. AUSA Márquez-Marín wrote, “The type of work that I will
be doing will determine when and how I return to work at the office for the complete
8 hours.” 216 DSMF ¶ 167 (emphasis omitted); PRDSMF ¶ 167. AUSA MárquezMarín also wrote that there was a “new chain of command” in appeals and this change
was causing her “additional pressures and stress . . ..” DSMF ¶ 167; PRDSMF ¶ 167.
She wrote that in addition to the “short deadlines, [it] [wa]s not beneficial to [her]
prompt recovery and full reintegration.”
DSMF ¶ 167; PRDSMF ¶ 167.
She
mentioned that she was “eager to reintegrate . . . given reasonable conditions” and
that “the type of work that [she did would] directly impact [her] full return . . ..”
DSMF ¶ 167; PRDSMF ¶ 167.
Officer Western responded later that day and explained management’s
rationale. 217 Stip. ¶ 180; DSMF ¶ 168; PRDSMF ¶ 168. She pointed out that AUSA
Márquez-Marín was not working eight hours at the office every day; hence, a decision
AUSA Márquez-Marín interposes a qualified response, setting forth in greater detail the
content of her June 9, 2015, response to Officer Western. PRDSMF ¶ 167. Consistent with its
obligation to view contested facts in the light most favorable to AUSA Márquez-Marín, the Court
included her clarifications. See Stip., Attach. 2, Ex. 74.
217
AUSA Márquez-Marín interposes a qualified response to the DOJ’s paragraph one hundred
and sixty-eight, objecting to the phrase “explained management’s rationale.” PRDSMF ¶ 168.
However, the phrase appeared in the Joint Stipulation and the Joint Stipulation trumps the
statements of fact. See Stip. ¶ 180. The Court does not accept AUSA Márquez-Marín’s qualification.
216
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regarding a possible transfer to the Civil Division was premature. Stip. ¶ 180; DSMF
¶ 168; PRDSMF ¶ 168. She also told AUSA Márquez-Marín that the civil AUSA
position would remain open, so it would be available to her “if that position [wa]s
determined to be the best fit.” Stip. ¶ 180; DSMF ¶ 168; PRDSMF ¶ 168.
On June 30, 2015, Dr. Santiago completed a medical status report for AUSA
Márquez-Marín. Stip. ¶ 181; DSMF ¶ 169; PRDSMF ¶ 169. In his remarks, he wrote,
“[Patient] has been recommended to start in the Civil Division as soon as possible.”
Stip. ¶ 181 (alteration in original); DSMF ¶ 169; PRDSMF ¶ 169. On July 9, 2015,
AUSA Márquez-Marín wrote to Officer Western, copying Chief Pérez, EAUSA Novas,
and Officer López. Stip. ¶ 182; DSMF ¶ 170; PRDSMF ¶ 170. She attached a copy of
Dr. Santiago’s June 30, 2015, report and stated that her doctor had clarified that she
should be assigned to the Civil Division as soon as possible. Stip. ¶ 182; DSMF ¶ 170;
PRDSMF ¶ 170. That same day, EAUSA Novas responded to AUSA Márquez-Marín
and told her that Officer Western was out that day but they would discuss the matter
the next day and let her know promptly thereafter. Stip. ¶ 183; DSMF ¶ 171;
PRDSMF ¶ 171.
The next day, July 10, 2015, Officer Western sent AUSA Márquez-Marín a
notice that her request for transfer to the Civil Division was approved that day on a
temporary basis until she recovered from her medical condition. Stip. ¶ 184; DSMF
¶ 172; PRDSMF ¶ 172. This was about two months after AUSA Márquez-Marín first
requested transfer to the Civil Division as a reasonable accommodation. 218 PSAMF
The DOJ interposes a qualified response, asserting that the reason for the delay was that
AUSA Márquez-Marín did not provide a doctor’s opinion that the transfer should be immediate until
218
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¶ 292; DRPSMF ¶ 292. United States Attorney Rodríguez was the management
official who approved the transfer. Stip. ¶ 184; DSMF ¶ 172; PRDSMF ¶ 172. Civil
Division Chief Ramírez became AUSA Márquez-Marín’s first-line supervisor in the
USAO’s Civil Division. Stip. ¶ 185. United States Attorney Rodríguez personally
told AUSA Márquez-Marín that she would continue as the environmental crimes
coordinator while in the Civil Division. Stip. ¶ 186; DSMF ¶ 173; PRDSMF ¶ 173.
Chief Ramírez also asked AUSA Márquez-Marín to coordinate all civil environmental
matters, and she agreed. Stip. ¶ 186; DSMF ¶ 173; PRDSMF ¶ 173.
s.
May 2015 Child Care Issues
On May 19, 2015, AUSA Márquez-Marín wrote to Chief Pérez and asked
permission to work from home full-time for the rest of that week and the following
week. Stip. ¶ 187; DSMF ¶ 174; PRDSMF ¶ 174. AUSA Márquez-Marín asked
because school had concluded for the year for her children, but summer camp was not
scheduled to start until June 1. Stip. ¶ 187; DSMF ¶ 174; PRDSMF ¶ 174. She was
having difficulty finding someone to watch her children during the work day. Stip.
¶ 187; DSMF ¶ 174; PRDSMF ¶ 174. Chief Pérez responded that although he would
not object to the request, he needed to check first with Officer López (whom he copied
on his response). Stip. ¶ 187; DSMF ¶ 175; PRDSMF ¶ 175.
Officer López in turn forwarded Chief Pérez’s email to United States Attorney
Rodríguez, FAUSA Henwood, EAUSA Novas, and Officer Western. Stip. ¶ 187;
DSMF ¶ 175; PRDSMF ¶ 175. Throughout the afternoon of May 19, 2015, Officer
July 9, 2015. DRPSAMF ¶ 292. The Court declines to accept the DOJ’s qualified response as it does
not contradict AUSA Márquez-Marín’s additional paragraph two hundred and ninety-two.
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López, Officer Western, EAUSA Novas, and Chief Pérez exchanged emails about how
to handle AUSA Márquez-Marín’s request. DSMF ¶ 176; PRDSMF ¶ 176. Chief
Pérez, EAUSA Novas, and Officer López also met to discuss the request. DSMF
¶ 177; PRDSMF ¶ 177. They reviewed AUSA Márquez-Marín’s Telework Agreement,
as well as the office telework policy. DSMF ¶ 177; PRDSMF ¶ 177. The “takeaway”
from that meeting was that AUSA Márquez-Marín should be required to take annual
leave if she needed to take care of her children, as other employees in the office in the
same position who were not teleworking would have been required to take leave.
DSMF ¶ 177; PRDSMF ¶ 177.
This decision was also in accordance with the
EOUSA’s telework policies, which made clear that telework was not a substitute for
leave. DSMF ¶ 177; PRDSMF ¶ 177. On May 20, 2015, Officer López wrote AUSA
Márquez-Marín (copying Chief Pérez and EAUSA Novas) to state that AUSA
Márquez-Marín would be allowed to take annual leave if she needed to take care of
her children.
219
Stip. ¶ 188; DSMF ¶ 178; PRDSMF ¶ 178. AUSA Márquez-Marín
subsequently took annual leave to cover periods when her children were at home
before summer camp started. Stip. ¶ 189; DSMF ¶ 178; PRDSMF ¶ 178.
t.
United States v. Guzmán de los Santos
United States v. Guzmán de los Santos, case number 14-2230, was assigned to
AUSA Márquez-Marín while the case was on appeal to the First Circuit Court of
AUSA Márquez-Marín admits the DOJ’s paragraph one hundred and seventy-eight but
qualifies her response due to the heading of this section in the DOJ’s statement of material facts. The
Court did not include the headings in its statement of facts, so it disregards this qualification.
219
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Appeals after the conviction of the defendant. 220
Stip. ¶ 148; PSAMF ¶ 242;
DRPSAMF ¶ 242; DSMF ¶ 128; PRDSMF ¶ 128. This was while AUSA MárquezMarín was teleworking. Stip. ¶ 148; DSMF ¶ 128; PRDSMF ¶ 128. José Miguel
Guzmán-De los Santos was one of several defendants in a case involving narcotics;
he had been tried twice by the USAO and had been convicted at the second trial. Stip.
¶ 148; DSMF ¶ 128; PRDSMF ¶ 128. AUSA Dennise Longo was lead counsel at the
two trials and was in one of the USAO’s narcotics units at the time of the two trials.
DSMF ¶ 129; PRDSMF ¶ 129.
Upon review of the record, including the transcripts of the two trials, AUSA
Márquez-Marín became convinced that there had been serious violations on the part
of the prosecution and there was not enough evidence to prosecute. 221 DSMF ¶ 130;
PRDSMF ¶ 130; PSAMF ¶ 243; DRPSAMF ¶ 243. According to AUSA MárquezMarín, the trial counsel hid testimony from the Magistrate Judge in the suppression
hearing that resulted in the Magistrate Judge finding probable cause, and the
Magistrate Judge made a note that some testimony was missing. DSMF ¶ 130;
PRDSMF ¶ 130. In addition, AUSA Márquez-Marín noted that the first trial resulted
The DOJ denies the portion of AUSA Márquez-Marín’s additional paragraph two hundred and
forty-two that states this was the “first effort” to discredit her, arguing that it is unsupported and
argumentative. DRPSAMF ¶ 242. The Court agrees that this portion of the paragraph is not
supported by a citation to the record and struck it from the statement of facts.
AUSA Márquez-Marín’s additional paragraph two hundred and forty-one discusses ongoing
attempts by management to demonstrate that AUSA Márquez-Marín was not performing her job well.
PSAMF ¶ 241. The DOJ denies this paragraph. DRPSAMF ¶ 141. The Court did not include AUSA
Márquez-Marín’s additional paragraph two hundred forty-one because it is not supported by a citation
to the record.
221
AUSA Márquez-Marín admits the DOJ’s paragraph one hundred and thirty but adds a number
of facts for purposes of completeness and to place this fact in context. PRDSMF ¶ 130. In accordance
with its requirement to view conflicting evidence in favor of AUSA Márquez-Marín, the Court included
these added facts. See Decl. of Hilda Hudson, Attach. 1, Ex. 1 at 76-79.
220
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in a hung jury and when the USAO decided to re-prosecute the case, the trial counsel
and management decided not to present certain witnesses whose testimony would
show that there was no evidence to arrest, the prosecutors hid evidence from the jury,
and the prosecutors requested a higher sentence for the accused man than for other
defendants in the case. DSMF ¶ 130; PRDSMF ¶ 130. AUSA Márquez-Marín was of
the opinion these actions had been “unethical” and that she could not defend them.
DSMF ¶ 130; PRDSMF ¶ 130.
In November 2014, AUSA Márquez-Marín went to Chief Pérez regarding her
concerns and together they discussed the case with FAUSA Domínguez. 222 DSMF
¶ 131; PRDSMF ¶ 131; PSAMF ¶ 244; DRPSAMF ¶ 244. FAUSA Domínguez and
Chief Pérez agreed with AUSA Márquez-Marín’s analysis. PSAMF ¶ 245; DRPSAMF
¶ 245.
On November 17, 2014, AUSA Márquez-Marín emailed Chief Pérez to
memorialize their discussion with FAUSA Domínguez that day. Stip. ¶ 149; DSMF
¶ 131; PRDSMF ¶ 131; PSAMF ¶ 244; DRPSAMF ¶ 244.
This first meeting was followed by a second meeting that included United
States Attorney Rodríguez, FAUSA Domínguez, then Special Counsel Novas, Chief
Pérez, Chief Ruiz, and AUSA Márquez-Marín. DSMF ¶ 132; PRDSMF ¶ 132. United
States Attorney Rodríguez agreed with AUSA Márquez-Marín’s analysis. 223 PSAMF
AUSA Márquez-Marín’s additional paragraph two hundred and forty-four states that she took
her concerns to both Chief Pérez and FAUSA Domínguez. PSAMF ¶ 244. The DOJ interposes a
qualified response, stating that AUSA Márquez-Marín went to Chief Pérez first and then they
discussed the case with FAUSA Domínguez. DRPSAMF ¶ 244. Since AUSA Márquez-Marín admits
the DOJ’s paragraph one hundred and thirty-one, the Court included that version of events for this
fact.
223
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph two
hundred and forty-five, asserting that the record citation does not support the allegation that United
States Attorney Rodríguez and FAUSA Domínguez agreed with AUSA Márquez-Marín’s analysis.
222
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¶ 245; DRPSAMF ¶ 245. United States Attorney Rodríguez and FAUSA Domínguez
made the decision to dismiss Mr. Guzmán’s indictment. DSMF ¶ 132; PRDSMF
¶ 132; PSAMF ¶ 246; DRPSAMF ¶ 246. The dismissal of the indictment was the
appropriate course of action and the decision to do so had to be made by upper
management. 224 PSAMF ¶ 246; DRPSAMF ¶ 246. Before dismissing, Chief Pérez
and FAUSA Domínguez, along with defense counsel, informed the district court judge
about the decision. PSAMF ¶ 246; DRPSAMF ¶ 246. On January 9, 2015, Chief
Pérez filed a motion to dismiss Mr. Guzmán’s indictment. DSMF ¶ 133; PRDSMF
¶ 133.
United States Attorney Rodríguez instructed Chief Ruiz to tell the two line
trial prosecutors about the decision and why it had been made.
DSMF ¶ 132;
PRDSMF ¶ 132; PSAMF ¶ 247; DRPSAMF ¶ 247. FAUSA Domínguez specifically
instructed her legal assistant to contact Chief Ruiz so that he could inform the AUSAs
involved in the case what had been decided by upper management. PSAMF ¶ 247;
DRPSAMF ¶ 245. The Court overrules the qualified response. It is logical that if AUSA MárquezMarín’s analysis of the record of the trials brought her to the conclusion that there was insufficient
evidence to convict Mr. Guzmán and, upon hearing her presentation, United States Attorney
Rodríguez and FAUSA Domínguez made the decision to dismiss Mr. Guzmán’s indictment, they must
have agreed with AUSA Márquez-Marín’s analysis.
224
The DOJ denies that the decision to dismiss the indictment had to be made by upper
management. DRPSAMF ¶ 246. The Court is extremely skeptical of the DOJ’s denial. This is a case,
according to the record, that the USAO had tried twice and obtained a conviction in the second trial
and that was on appeal. It strikes the Court as unusual that the DOJ would implicitly assert that a
line AUSA could dismiss an indictment in these circumstances without the decision having been made
by management within the USAO, which in fact is what happened here. In any event, the Court
accepts AUSA Márquez-Marín’s version because it is required to view contested facts in the light most
favorable to her.
The DOJ also qualifies its response, objecting to AUSA Márquez-Marín’s use of the word
“appropriate” as argumentative and conclusory. DRPSAMF ¶ 246. The Court rejects this qualification
because it is a reasonable inference given United States Attorney Rodríguez and FAUSA Domínguez’s
decision to dismiss the indictment.
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DRPSAMF ¶ 247. For AUSA Márquez-Marín, that ended the issue. PSAMF ¶ 248;
DRPSAMF ¶ 248. She had complied with her ethical responsibilities and her duty to
seek justice, and the office had agreed with her view of the case. PSAMF ¶ 248;
DRPSAMF ¶ 248.
AUSA Longo received electronic notification of the motion. DSMF ¶ 134;
PRDSMF ¶ 134. Upset by the news and knowing that her supervisor, then White
Collar and General Crimes Chief Henwood, was not available, she went to the
USAO’s executive suite, where she found FAUSA Domínguez.
DSMF ¶ 134;
PRDSMF ¶ 134. AUSA Longo told FAUSA Domínguez that she was baffled by the
motion and was upset. DSMF ¶ 134; PRDSMF ¶ 134. She asked FAUSA Domínguez
if she knew what had happened. DSMF ¶ 134; PRDSMF ¶ 134. FAUSA Domínguez
attempted to explain, but AUSA Longo was not satisfied and requested a meeting to
learn more. DSMF ¶ 134; PRDSMF ¶ 134. FAUSA Domínguez was busy with a trial
at the time, so no meeting could take place until January 30, 2015. DSMF ¶ 134;
PRDSMF ¶ 134. Meanwhile the district judge dismissed the indictment on January
13, 2015. DSMF ¶ 135; PRDSMF ¶ 135.
Ivette Figueroa, United States Attorney Rodríguez’s assistant, sent a calendar
invitation for a meeting to take place on January 30, 2015. Stip. ¶ 150. Invited to
attend the meeting were United States Attorney Rodríguez, FAUSA Domínguez,
EAUSA Novas, Chief Ruiz, Chief Henwood, SUSAs (specifically Deputy Narcotics
Chiefs) Hernández and Myriam Fernández, and AUSAs Longo and Elba Gorbea.
Stip. ¶ 150; DSMF ¶ 136; PRDSMF ¶ 136. On January 30, 2015, these individuals
146
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discussed the dismissal. DSMF ¶ 136; PRDSMF ¶ 136. The discussion, however, did
not satisfy AUSA Longo as to why the sanction of dismissal had been necessary. 225
DSMF ¶ 136; PRDSMF ¶ 136. AUSA Longo and SUSAs Hernández and Myriam
Fernández all complained that the dismissal had not been vetted with them first.
DSMF ¶ 136; PRDSMF ¶ 136. FAUSA Domínguez expressed concern that AUSA
Márquez-Marín had failed to speak to AUSA Longo about the issues in the case before
the dismissal in contradiction to what AUSA Márquez-Marín had previously
indicated. DSMF ¶ 136; PRDSMF ¶ 136.
Ms. Figueroa sent another calendar invitation for a meeting to take place on
February 9, 2015. Stip. ¶ 151; DSMF ¶ 137; PRDSMF ¶ 137. Notwithstanding that
she believed the issue had been resolved in mid-January, and while AUSA MárquezMarín was still teleworking and recovering from her serious injuries from the car
accident, she was unexpectedly called into the USAO to explain herself. 226 DSMF
¶ 137; PRDSMF ¶ 137; PSAMF ¶ 249; DRPSAMF ¶ 249. She assumed that the
subject of the meeting was the Gúzman case when she received the email invitation
The DOJ’s original paragraph one hundred and thirty-six contains the phrase, “draconian
sanction,” and AUSA Márquez-Marín denies that, in light of the circumstances, the dismissal was
draconian. PRDSMF ¶ 136. The Court struck the adjective draconian because it is required to view
contested facts in the light most favorable to AUSA Márquez-Marín. AUSA Márquez-Marín also
qualifies this paragraph, stating that United States Attorney Rodríguez gave Chief Ruiz, not AUSA
Márquez-Marín, instructions to tell the trial prosecutors about the dismissal decision. PRDSMF ¶ 136.
This fact is already in the statement of facts, see DSMF ¶ 132, so the Court rejects this qualification.
226
The DOJ interposes several denials and qualifications to AUSA Márquez-Marín’s additional
paragraph two hundred and forty-nine. DRPSAMF ¶ 249. The Court declines to accept them. To
accept the DOJ’s position would require the Court to violate its obligation to view contested facts in
the light most favorable to AUSA Márquez-Marín. One exception is the DOJ’s qualification that the
issues around the dismissal had not in fact been resolved, DRPSAMF ¶ 249, and the Court modified
the statement to reflect that AUSA Márquez-Marín believed they had been resolved. The other is the
dispute about whether the attendees were required to attend. DRPSAMF ¶ 249. The Court omitted
the contention that they were required to attend, since the listed participants attended whether
required to do so or not.
225
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on February 9, 2015. DSMF ¶ 137; PRDSMF ¶ 137; PSAMF ¶ 249; DRPSAMF ¶ 249.
Scheduled to attend the meeting were United States Attorney Rodríguez, FAUSA
Domínguez, EAUSA Novas, Chief Pérez, Chief Ruiz, Chief Henwood, SUSAs
Hernández and Myriam Fernández, and AUSAs Longo, Gorbea and Márquez-Marín.
Stip. ¶ 151; PSAMF ¶ 249; DRPSAMF ¶ 249. Although United States Attorney
Rodríguez and FAUSA Domínguez had been planning to attend the meeting, both
were called away at the last minute; United States Attorney Rodríguez received an
emergency call from Chief Judge Delgado-Colón and FAUSA Domínguez was called
away by the FBI. DSMF ¶ 138; PRDSMF ¶ 138. Everyone else who was invited,
except AUSA Gorbea, was present at the meeting. DSMF ¶ 138; PRDSMF ¶ 138;
PSAMF ¶ 250; DRPSAMF ¶ 250.
When AUSA Márquez-Marín arrived at the meeting, she found a hostile, moblike atmosphere. 227 PSAMF ¶ 250; DRPSAMF ¶ 250. AUSA Márquez-Marín was
attacked and several participants, including AUSA Longo and SUSAs Hernández and
Myriam Fernández, asked her to explain the decision in the case in a manner that
she felt was highly disrespectful. PSAMF ¶ 250; DRPSAMF ¶ 250; DSMF ¶ 139;
PRDSMF ¶ 139. Chief Pérez was dumbfounded as to the purpose of the meeting,
which was not at all defined, and saw the meeting as something “senseless.” 228
The DOJ denies these alleged facts, citing other attendees’ testimony that the tone of the
meeting remained professional. DRPSAMF ¶ 250. The Court does not accept the DOJ’s denial because
it is required to view contested facts in the light most favorable to AUSA Márquez-Marín.
228
The DOJ admits that Chief Pérez made these statements. DRPSAMF ¶ 251. However, the
DOJ seeks to qualify its response by asserting that Chief Pérez’s response is not surprising because
he was not present at the January 30, 2015, meeting. DRPSAMF ¶ 251. Further, the DOJ proffers
other portions of Chief Pérez’s recollection that present a slightly different account. DRPSAMF ¶ 251.
The Court rejects the DOJ’s qualified response because it does not contradict the paragraph and
227
148
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PSAMF ¶ 251; DRPSAMF ¶ 251. Chief Pérez further stated that he was “baffled at
the fact that [it] was conducted.” PSAMF ¶ 251 (alteration in original); DRPSAMF
¶ 251. He said that those present were simply challenging AUSA Márquez-Marín’s
analysis. PSAMF ¶ 251; DRPSAMF ¶ 251. Chief Pérez described the meeting as one
of “dissonance everywhere, one talking here and one talking over there, and with not
much sense . . ..” PSAMF ¶ 252; DRPSAMF ¶ 252. Moreover, this was done in the
absence of the two highest officials in the USAO, who had agreed with AUSA
Márquez-Marín’s analysis but were absent from the meeting. 229 PSAMF ¶ 253;
DRPSAMF ¶ 253. Chief Pérez stated that “the questions should have been directed
to [FAUSA] Domínguez and [United States Attorney] Rodríguez, who were the ones
who made the determination, and they were not present.” PSAMF ¶ 253; DRPSAMF
¶ 253.
In an email AUSA Márquez-Marín wrote to United States Attorney Rodríguez,
FAUSA Domínguez, EAUSA Novas, Chief Ruiz, and Chief Pérez later the next day
expressing her views about the meeting, she described the fact that there were untrue
accusations being thrown at her and creating “a stressful and unpleasant
experience.” 230 Stip. 152; PSAMF ¶ 254; DRPSAMF ¶ 254; DSMF ¶ 140; PRDSMF
because the Court is required to view contested evidence in the light most favorable to AUSA MárquezMarín.
229
The DOJ denies that United States Attorney Rodríguez and FAUSA Domínguez agreed with
AUSA Márquez-Marín’s analysis. DRPSAMF ¶ 253. The Court previously rejected this denial. See
supra note 223.
230
First, the DOJ corrects the date of the email, DRPSAMF ¶ 254, and, in reviewing the record,
the Court agrees with the DOJ and altered AUSA Márquez-Marín’s additional paragraph two hundred
and fifty-three to reflect the fact that AUSA Márquez sent the email on February 10, 2015, the day
after the February 9, 2015 meeting. Next, although the DOJ says that AUSA Márquez-Marín said
she had these feelings, the DOJ denies “these sentiments.” DRPSAMF ¶ 254. Knowing that the Court
must view contested facts in the light most favorable to AUSA Márquez-Marín, the Court cannot
149
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¶ 140. AUSA Márquez-Marín questioned the presence of SUSA Hernández (the
significant other of SUSA Capó against whom she had filed the EEO complaint),
given that SUSA Hernández had not been the supervisor of the AUSAs in the case
against Mr. Guzmán.
PSAMF ¶ 254; DRPSAMF ¶ 254; DSMF ¶ 140; PRDSMF
¶ 140. She also noted that SUSA Myriam Fernández was SUSA Hernández’s best
friend. DSMF ¶ 140; PRDSMF ¶ 140. In addition, she noted that such stressful
situations were not helpful to her efforts to “improve [her] medical condition,”
especially when she was “not even given an opportunity to prepare for such an
encounter . . ..” PSAMF ¶ 254 (alteration in original); DRPSAMF ¶ 254.
On the same day, FAUSA Domínguez responded. Stip. ¶ 153; DSMF ¶ 141;
PRDSMF ¶ 141. FAUSA Domínguez apologized for not being present and said she
had spoken with EAUSA Novas and Chief Pérez to get a sense of what had happened
at the meeting. DSMF ¶ 141; PRDSMF ¶ 141. She wrote that the intent of the
meeting was to allow AUSA Longo and the narcotics supervisors to gain insight as to
why the decision to dismiss was made. DSMF ¶ 141; PRDSMF ¶ 141. She said that
she regretted that AUSA Márquez-Marín felt that members of the meeting were
disrespectful to her or addressed her in an accusatory tone. DSMF ¶ 141; PRDSMF
¶ 141. She wrote that she was certain that was not their intent. 231 DSMF ¶ 141;
understand how the DOJ could deny that AUSA Márquez-Marín had the feelings that she said she
had. The Court rejects the DOJ’s denial.
AUSA Márquez-Marín denies the DOJ’s use of the phrase “expressing her views about the
meeting” in paragraph one hundred and forty. PRDSMF ¶ 140. Since AUSA Márquez-Marín
stipulates to this phrase in the Joint Stipulation, see Stip. ¶ 152, the Court rejects this qualification.
AUSA Márquez-Marín also lists added facts, some already in the statement of facts, and does not
explain why they are necessary. PRDSMF ¶ 140. The Court declines to include them here.
231
This sentence of the DOJ’s paragraph one hundred and forty-one states, “She was certain that
was not their intent.” DSMF ¶ 141. AUSA Márquez-Marín qualifies this sentence, stating that
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PRDSMF ¶ 141. She also wrote that the decision to dismiss the case was not AUSA
Márquez-Marín’s and was made by various members of senior management after
consulting AUSA Márquez-Marín and Chief Pérez. DSMF ¶ 141; PRDSMF ¶ 141.
FAUSA Domínguez concluded:
Of paramount importance in all of this is your health. We are all
committed to supporting you in your recovery, and do not want to create
situations that will interfere in that process. In the future, we will avoid
including you in similar events until you are fully recovered. Please
accept our apologies if the meeting was upsetting to you. I found your
input on the case to be most helpful.
DSMF ¶ 141; PRDSMF ¶ 141. United States Attorney Rodríguez sent a subsequent
email joining in FAUSA Domínguez’s response. DSMF ¶ 141; PRDSMF ¶ 141.
u.
United States v. Santiago-Lugo
United States v. Santiago-Lugo, case number 14-2230, was an appeal to the
First Circuit Court of Appeals that involved a criminal defendant who filed a motion
to have his sentence reviewed after Congress passed Amendment 750, an amendment
that changed the sentencing guidelines for crack cocaine convictions. 232 Stip. ¶ 190;
DSMF ¶ 179; PRDSMF ¶ 179. FAUSA Henwood, then Chief of the White Collar and
General Crimes Unit, was assigned to answer all the cases arising under Amendment
750. PSAMF ¶ 257; DRPSAMF ¶ 257. In Santiago-Lugo, however, then Chief
FAUSA Domínguez wrote this but the record does not provide independent support that it was true.
PRDSMF ¶ 141. The Court agrees with AUSA Márquez-Marín and altered the sentence accordingly.
AUSA Márquez-Marín also adds a fact regarding what FAUSA Domínguez wrote in her email.
PRDSMF ¶ 141. Since the Court is required to view the conflicting evidence in the light most favorable
to AUSA Márquez-Marín, the Court included this fact in its statement of facts.
232
AUSA Márquez-Marín admits the DOJ’s paragraph one hundred and seventy-nine but
qualifies it to add details about the case. PRDSMF ¶ 179. These details are included elsewhere in the
statement of facts, see PSAMF ¶ 256, so the Court rejects this qualification.
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Henwood did not file a response in district court to Mr. Santiago-Lugo’s request. 233
PSAMF ¶ 257; DRPSAMF ¶ 257. The district court denied Mr. Santiago-Lugo’s
motion and Mr. Santiago-Lugo appealed. Stip. ¶ 190; PSAMF ¶ 257; DRPSAMF
¶ 257; DSMF ¶ 179; PRDSMF ¶ 179.
AUSA Márquez-Marín was assigned to file an appellate brief on behalf of the
United States. 234
Stip. ¶ 191; PSAMF ¶ 255; DRPSAMF ¶ 255; DSMF ¶ 180;
PRDSMF ¶ 180. Mr. Santiago-Lugo was one of a number of defendants requesting
reductions for sentences in crack cocaine cases after Amendment 750 was approved.
PSAMF ¶ 255; DRPSAMF ¶ 255.
The case had been originally prosecuted in
approximately 1993 and the prosecutors at that time were long gone from the USAO.
PSAMF ¶ 256; DRPSAMF ¶ 256. AUSA Márquez-Marín was concerned that she did
not have access to the original file in the case and that she could not consult with the
original prosecutors regarding her questions about the quantity of drugs involved.
PSAMF ¶ 259; DRPSAMF ¶ 259. There was a deadline in early June 2015 for the
filing of the brief in the case. PSAMF ¶ 258; DRPSAMF ¶ 258. It was customary in
the USAO to request an extension, the First Circuit routinely granted such requests,
The DOJ admits AUSA Márquez-Marín’s additional paragraph two hundred and fifty-seven.
DRPSAMF ¶ 257. Nevertheless, the DOJ seeks to explain why then Chief Henwood did not file a
response. DRPSAMF ¶ 257. The Court declines to accept the DOJ’s additional facts because they are
not properly presented and in any event are immaterial.
234
In AUSA Márquez-Marín’s additional paragraph two hundred and fifty-five, she states that it
was sometime in the first half of 2015 that she was assigned the Santiago-Lugo appeal. PSAMF ¶ 255.
The DOJ denies this portion of the paragraph on the ground that it is not supported by the record
citation. DRPSAMF ¶ 255. The Court reviewed the citation and agrees with the DOJ. It omitted the
reference to when AUSA Márquez-Marín was assigned the appeal.
233
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and ASUA Márquez-Marín had every intention to request one. 235 PSAMF ¶ 258;
DRPSAMF ¶ 258.
On June 3, 2015, five days before her brief was due to the First Circuit, AUSA
Márquez-Marín went to see Chief Pérez to discuss the case. 236 Stip. ¶ 191; DSMF
¶ 180; PRDSMF ¶ 180. AUSA Márquez-Marín had a concern there was not enough
crack cocaine to convict Mr. Santiago-Lugo following Amendment 750. Stip. ¶ 191;
DSMF ¶ 180; PRDSMF ¶ 180. Chief Pérez said that the AUSAs who had tried the
case had left the USAO but suggested that AUSA Márquez-Marín meet with FAUSA
Henwood for advice, since he had been responsible before his appointment as FAUSA
to respond on behalf of the USAO to various motions calling for reductions of
sentences after Amendment 750. Stip. ¶ 191; DSMF ¶ 180; PRDSMF ¶ 180. Chief
Pérez also proposed including EAUSA Novas. Stip. ¶ 191; DSMF ¶ 180; PRDSMF
The DOJ denies the part of AUSA Márquez-Marín’s additional paragraph two hundred and
fifty-eight that asserts that she had every intention of requesting an extension, arguing that this
portion of the paragraph is not supported by the record citation. DRPSAMF ¶ 258. The Court
reviewed the cited record and disagrees with the DOJ. Although not explicit, the Court finds that
AUSA Márquez-Marín’s intention to request an extension is implicit in the cited record.
Moreover, the Court realized that AUSA Márquez-Marín miscited the record. The statement
that AUSA Márquez-Marín had every intention of requesting an extension appears at paragraph one
hundred and twenty-five of her sworn declaration. See PSAMF, Attach. 1, Ex. 1 to Ex. A: Márquez
Sworn Statement ¶ 125. To do justice, the Court included the statement, which is supported by the
record, despite the inaccurate citation.
236
AUSA Márquez-Marín interposes a qualified response to the DOJ’s paragraph one hundred
and eighty, objecting to the inference that she was negligent in waiting to express her concerns to her
supervisors and failing to file for an extension earlier. PRDSMF ¶ 180. The Court makes no such
inference and rejects this qualification. AUSA Márquez-Marín also qualifies her response to add facts
about then Chief Henwood’s treatment of the Santiago-Lugo case. PRDSMF ¶ 180. These facts appear
elsewhere in the statement of facts, so the Court does not include them here.
AUSA Márquez-Marín discusses the DOJ’s paragraphs one hundred and eighty through one
hundred and ninety-eight, arguing that they “do nothing more than show that there is a controversy
as to the reasonable inferences which can be drawn with response to this controversy (one of which is
that [AUSA] Márquez[-Marín] was subject to unwarranted, heightened supervision).” PRDSMF ¶ 180
(emphasis omitted). The Court disregards this note as argument because it does not contradict any of
the referenced paragraphs.
235
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¶ 180.
Together, AUSA Márquez-Marín and Chief Pérez contacted FAUSA
Henwood’s assistant to arrange a meeting and a meeting was set for the next day at
10:00 a.m. Stip. ¶ 191; DSMF ¶ 180; PRDSMF ¶ 180.
While preparing the appeal, AUSA Márquez-Marín attempted to talk to
FAUSA Henwood as the person in charge of the Amendment 750 cases, but he told
her that he had not answered Mr. Santiago-Lugo’s request at the district level.
PSAMF ¶ 260; DRPSAMF ¶ 260. Even though he had no direct involvement in the
case, FAUSA Henwood requested to see a copy of the brief before it was filed. PSAMF
¶ 262; DRPSAMF ¶ 262. Furthermore, FAUSA Henwood continued to send AUSA
Márquez-Marín emails containing research that AUSA Márquez-Marín believed was
not related to the matter. 237 PSAMF ¶ 262; DRPSAMF ¶ 262.
At 5:10 p.m. on June 3, 2015, FAUSA Henwood emailed Chief Pérez, AUSA
Márquez-Marín and EAUSA Novas and said that he had another meeting on June 4,
2015, at 10:00 a.m., so if they were going to meet, it would need to be at 9:30 a.m.
Stip. ¶ 192; DSMF ¶ 181; PRDSMF ¶ 181. FAUSA Henwood also asked AUSA
Márquez-Marín to refresh him as to the issue in the case so that the meeting could
be productive. Stip. ¶ 192; DSMF ¶ 181; PRDSMF ¶ 181. FAUSA Henwood wrote
AUSA Márquez-Marín and Chief Pérez the next morning at 8:55 a.m. Stip. ¶ 193;
DSMF ¶ 182; PRDSMF ¶ 182. FAUSA Henwood wrote, “Although the Appellant’s
brief was docketed in December of 2014, I do not believe I have been consulted on this
The DOJ interposes a qualified response, asserting that FAUSA Henwood thought his research
was related to the appellate issues in the case. DRPSAMF ¶ 262. The Court altered the language
slightly to confirm that the irrelevance of FAUSA Henwood’s research was AUSA Márquez-Marín’s
subjective belief.
237
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matter until a meeting request was made through my legal assistant yesterday
afternoon. Please let me know if I am incorrect in this.” 238 Stip. ¶ 193; DSMF ¶ 182;
PRDSMF ¶ 182. He told them he had printed out the appellant’s brief and provided
three reasons for why he did not see any merit in it. Stip. ¶ 193; DSMF ¶ 182;
PRDSMF ¶ 182. FAUSA Henwood forwarded this email to EAUSA Novas. Stip.
¶ 193; DSMF ¶ 182; PRDSMF ¶ 182.
At 9:11 a.m. on June 4, 2015, Chief Pérez responded to FAUSA Henwood
(copying EAUSA Novas) that AUSA Márquez-Marín had a concern that she would
explain, and since FAUSA Henwood was the one coordinating the amendment cases,
she wanted to ensure her analysis was consistent with his instructions in those cases.
Stip. ¶ 194; DSMF ¶ 183; PRDSMF ¶ 183. At 9:16 a.m., FAUSA Henwood again
wrote to AUSA Márquez-Marín, copying EAUSA Novas and Chief Pérez: “Please let
me know the specific issue. Frankly I don’t see what my coordination of these cases
has to do with the issue raised. Especially where the Judge denied the petition 9 days
after the probation officer filed his package (and before we were even required to
respond), and since the exact relief was denied in both the district court and the court
of appeals in 2008.” Stip. ¶ 195; DSMF ¶ 184; PRDSMF ¶ 184.
At 9:46 a.m., AUSA Márquez-Marín wrote to FAUSA Henwood and EAUSA
Novas. Stip. ¶ 196; DSMF ¶ 185; PRDSMF ¶ 185. AUSA Márquez-Marín said that
AUSA Márquez-Marín interposes a qualified response to the DOJ’s paragraph one hundred
and eighty-two, asserting that “despite [FAUSA] Henwood’s implication in the referenced email, . . .
there was absolutely no requirement that [AUSA] Márquez[-Marín] consult with [FAUSA] Henwood
on the Santiago-Lugo matter.” PRDSMF ¶ 182. The Court does not read the paragraph as saying
that AUSA Márquez-Marín was required to consult with FAUSA Henwood and thus did not alter the
paragraph.
238
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she believed there could be a problem in the denial of the motion. Stip. ¶ 196; DSMF
¶ 185; PRDSMF ¶ 185. She added, “Since it is 10:00 am already please let me know
if we will meet.” Stip. ¶ 196; DSMF ¶ 185; PRDSMF ¶ 185. FAUSA Henwood sent
an official cancellation of the meeting. Stip. ¶ 197; DSMF ¶ 186; PRDSMF ¶ 186.
Upon receiving the cancellation, AUSA Márquez-Marín again wrote FAUSA
Henwood at 9:51 a.m., copying EAUSA Novas and Chief Pérez, and stated, “I just
received the cancellation of today’s meeting. As you all know, I will be at the office
until 1:00 pm. Please let me know if you want and can meet to discuss this important
matter before 1:00 pm.” Stip. ¶ 197; DSMF ¶ 186; PRDSMF ¶ 186. At 9:59 a.m.,
FAUSA Henwood responded, copying EAUSA Novas and Chief Pérez: “[AUSA
Márquez-Marín]: I have two interviews at 10:00 and 10:30. I’m not sure what time
I’ll finish.
It is possible that I could squeeze a short meeting in.
However, in
anticipation of the meeting, could you please tell what the problem you believe there
could be with the denial? I don’t see any issues with this second denial of the crack
reduction. But if you give me the precise concern I am sure I can help you resolve the
issue.” Stip. ¶ 198; DSMF ¶ 187; PRDSMF ¶ 187.
At 11:04 a.m., AUSA Márquez-Marín wrote to FAUSA Henwood: “As you know,
Amendment 750 was approved retroactively. It increased the quantity threshold of
crack from 50 to 280 grams. Once the amendment is applied to [Mr.] Santiago Lugo
one of the elements of the offense of section 848 is not met. Therefore, the sentence
can not . . . be mandatory as he was sentenced to mandatory life imprisonment.” Stip.
¶ 199; DSMF ¶ 188; PRDSMF ¶ 188.
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Later that morning, EAUSA Novas, having been copied on or forwarded a
number of the prior emails, wrote to Chief Pérez in part:
I have some concerns with the way this appeal is being handled which
we can discuss later, but AUSA M[árquez-Marín] has not followed the
Appellate and Trial Division Coordination Procedures [the protocol] in
effect since March 12. This is something that you need to address with
her. She was assigned to this matter since the April 9, 2015 calendar,
and it had due dates of April 22 (extended) and May 22 (extended), now
it is due on June 8. To the best of [FAUSA Henwood’s] recollection, she
did not consult this appeal with him until today’s meeting was requested
(yesterday afternoon). As you are aware, the policy calls for consultation
within 5 days of receiving the appellant’s brief. Moreover, if the brief
will be filed on Monday, [FAUSA Henwood] should be afforded an
opportunity to review the same (within 4 days of the due date as per the
policy). Please make sure that AUSA M[árquez-Marín] complies with
the established policy going forward, as this will avoid the type of lastminute issues we are now confronting with this matter. 239
Stip. ¶ 200 (some alterations in original); PSAMF ¶ 265; DRPSAMF ¶ 265; DSMF
¶ 189; PRDSMF ¶ 189.
The protocol to which EAUSA Novas referred required appellate counsel to
consult with trial counsel at a certain point in the appeals process. PSAMF ¶ 266;
DRPSAMF ¶ 266. EAUSA Novas told Chief Pérez that AUSA Márquez-Marín had
not “consulted with the trial attorney” before filing the brief.
PSAMF ¶ 266;
DRPSAMF ¶ 266. But, as noted earlier, FAUSA Henwood had not been trial counsel
and had not responded to Mr. Santiago-Lugo’s petition. 240 PSAMF ¶ 266; DRPSAMF
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph two
hundred and sixty-five, asserting that the Court should disregard the phrase “[d]espite these facts”
because it is not established and is argumentative and conclusory. DRPSAMF ¶ 265. The Court
agrees that this phrase is argumentative and struck it.
AUSA Márquez-Marín discusses additional facts related to the DOJ’s paragraph one hundred
and eighty-nine. PRDSMF ¶ 189. These facts relate to the veracity of EAUSA Novas’ statements, not
whether she said them, so the Court disregards these comments.
240
The DOJ admits the portion of AUSA Márquez-Marín’s additional paragraph two hundred and
sixty-six that states EAUSA Novas was referring to the part of the protocol that requires appellate
239
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¶ 266. EAUSA Novas admitted that the requirement of consulting trial counsel was
for the purpose of “discuss[ing] the evidence that came out at trial . . .. They were
there at the trial court level . . . trial attorneys are a very important part of the
appellate process. You’re defending their convictions.” PSAMF ¶ 267 (alterations in
original); DRPSAMF ¶ 267. FAUSA Henwood was not trial counsel. 241 PSAMF
¶ 267; DRPSAMF ¶ 267.
At 12:41 p.m., AUSA Márquez-Marín emailed Chief Pérez. Stip. ¶ 201; DSMF
¶ 190; PRDSMF ¶ 190. She noted that she just saw FAUSA Henwood leaving for
lunch with SUSA Capó and SLC Scott Anderson, so she “underst[ood] . . . that he
d[id] not want to meet.” Stip. ¶ 201; DSMF ¶ 190; PRDSMF ¶ 190. AUSA MárquezMarín met with Chief Pérez before 1:27 p.m., after Chief Pérez called her to discuss
EAUSA Novas’ concerns. Stip. ¶ 202; DSMF ¶ 191; PRDSMF ¶ 191. Following the
meeting, AUSA Márquez-Marín wrote to EAUSA Novas with a copy to Chief Pérez.
Stip. ¶ 202; DSMF ¶ 191; PRDSMF ¶ 191. AUSA Márquez-Marín stated in part that
counsel to consult with trial counsel at a certain in the appeals process. DRPSAMF ¶ 266. The DOJ
denies, however, the remainder of the paragraph as not supported by the citation. DRPSAMF ¶ 266.
The Court declines to accept the DOJ’s denial because the factual statements are elsewhere supported
and place in context EAUSA Novas’ objection to AUSA Márquez-Marín’s actions. The Court altered
the paragraph slightly to clarify the point.
241
The parties are at odds about AUSA Márquez-Marín’s additional paragraph two hundred and
sixty-seven. AUSA Márquez-Marín asserts that she was under no obligation to consult FAUSA
Henwood because he was not trial counsel and because he had not responded to the defendant’s
petition. PSAMF ¶ 267. The DOJ says that she was still obligated to do so in order to obtain input
from someone in the office who could have assisted her. DRPSAMF ¶ 267. But the DOJ admits that
FAUSA was not trial counsel. DRPSAMF ¶ 267. Because it is required to view contested facts in the
light most favorable to AUSA Márquez-Marín, the Court included enough of AUSA Márquez-Marín’s
paragraph to allow the inference that the consultation policy did not apply to this situation. The Court
excluded some of AUSA Márquez-Marín’s language as more argument than fact.
On the same basis, the Court omitted AUSA Márquez-Marín’s additional paragraph two
hundred and sixty-eight, namely that it is argumentative, and the Court accepts the factual
underpinning for the point.
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she did not see why she had to follow the protocol since FAUSA Henwood had not
replied to the motion filed by Mr. Santiago-Lugo in the district court. DSMF ¶ 191;
PRDSMF ¶ 191. She stated, “The reason why I requested a meeting with [FAUSA
Henwood] is because he was the supervisor in charge of replying to the motions for
request of reduction of sentence under amendment 750 and I understand his input
will be valuable to analyze this case . . ..” DSMF ¶ 191; PRDSMF ¶ 191.
EAUSA Novas responded at 1:50 p.m. Stip. ¶ 203; DSMF ¶ 192; PRDSMF
¶ 192. After noting that she had no issues with AUSA Márquez-Marín’s requests for
extensions (an issue also raised by AUSA Márquez-Marín in her prior email), EAUSA
Novas stated:
My specific concern was that, given the fact that you had the case
assigned for some time (since April 11) it was not until recently that you
realized there were issues, just a few days before the brief is due after a
couple of extensions of time had been requested. The spirit of the
[protocol] is precisely to encourage early review of assigned cases, early
communication with anyone in the office who may be able to assist, and
finally, timely submission of drafts for review by trial AUSAs. In this
case, you proceeded correctly in consulting with [FAUSA Henwood] as
he was in charge of the amendment 750 crack reduction of sentence
motions, however, he was not given specifics as to what the concerns
were in a timely manner such that he could assist you. It is not our
intention to increase anyone’s stress levels at the office, and we certainly
understand that you are re-incorporating and transitioning to a regular
schedule as your physician recommends. If completing this brief will
require more time than you expected, I recommend that a final brief
extension of time be requested from the court. Finally, since [former
FAUSA Domínguez] left I am [Chief Pérez’s] supervisor so please feel
free to consult appellate issues with me as they arise, obviously going
through the chain of command and keeping [Chief Pérez] in the loop.
Stip. ¶ 203 (some alterations in original); DSMF ¶ 192; PRDSMF ¶ 192.
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At 2:10 p.m., AUSA Márquez-Marín replied to EAUSA Novas, copying Chief
Pérez and FAUSA Henwood:
Once more, I am requesting a meeting to discuss the problems with the
case. After all, we are all working to represent the United States
adequately. Since I am not in a position to decide how to proceed, I am
only complying with procedure by requesting a meeting to explain the
problems encountered and obtain instructions on how to proceed. Please
let me know, if you are amenable to the meeting so I can comply with
my work. Thanks. 242
Stip. ¶ 204; DSMF ¶ 193; PRDSMF ¶ 193. At 7:49 p.m. on June 4, 2015, FAUSA
Henwood wrote AUSA Márquez-Marín, copying EAUSA Novas and Chief Pérez.
DSMF ¶ 194; PRDSMF ¶ 194. He stated that he had done some quick research and
found some guidance from the DOJ as well as language from four cases that seemed
to be “on point.” DSMF ¶ 194; PRDSMF ¶ 194. He provided this information to
AUSA Márquez-Marín. DSMF ¶ 194; PRDSMF ¶ 194. He noted at the end, “I think
that this should take care of the issue. However, if you would still like to meet I will
be available late in the morning or early in the afternoon tomorrow.” DSMF ¶ 194;
PRDSMF ¶ 194.
At 1:54 p.m. on June 5, 2015, AUSA Márquez-Marín wrote FAUSA Henwood.
Stip. ¶ 205; DSMF ¶ 195; PRDSMF ¶ 195. She thanked him for the information but
suggested that the information he provided did not address her concerns. DSMF
¶ 195; PRDSMF ¶ 195. For example, she wanted to know why the government had
The DOJ’s original paragraph one hundred and ninety-three quotes portions of AUSA
Márquez-Marín’s email. DSMF ¶ 193. AUSA Márquez-Marín quotes the email more extensively.
PRDSMF ¶ 193. The Court expanded the statement of facts to include AUSA Márquez-Marín’s
clarification because it is required to view contested facts in the light most favorable to AUSA
Márquez-Marín.
242
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not submitted a response to the motion filed by Mr. Santiago-Lugo in the district
court (even though FAUSA Henwood had already suggested the reason the previous
day in his email at 9:16 a.m.—namely, that the judge had denied the petition before
the government was even required to respond). DSMF ¶ 195; PRDSMF ¶ 195. She
wanted to know the amount and type of controlled substances used for the sentencing.
DSMF ¶ 195; PRDSMF ¶ 195.
She also stated, “After three unsuccessful and
unanswered requests for a meeting with both you and EAUSA Novas, it was clear to
me that I was not going to be given the benefit of the discussion of this matter.” DSMF
¶ 195; PRDSMF ¶ 195.
In response, FAUSA Henwood sent an email to AUSA Márquez-Marín, copying
Chief Pérez and EAUSA Novas. DSMF ¶ 196; PRDSMF ¶ 196. He refuted AUSA
Márquez-Marín’s statement about “unsuccessful” and “unanswered” requests for a
meeting and systematically went through the many instances over the previous few
days when he had offered to meet with her. DSMF ¶ 196; PRDSMF ¶ 196. He then
addressed the specific issues AUSA Márquez-Marín referenced, including why the
government had not responded to Mr. Santiago-Lugo’s motion and the amount and
type of controlled substances used during sentencing. DSMF ¶ 196; PRDSMF ¶ 196.
He concluded:
Please forward me what you have drafted. I would be happy to review
it and discuss it with you. If you have any more specific questions you
can email me, call me, or stop in and see me. I also would not object to
seeking a further extension of time in order to review and collaborate on
the issue.
DSMF ¶ 196; PRDSMF ¶ 196.
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At 8:28 p.m. on June 5, 2015, AUSA Márquez-Marín wrote an email to FAUSA
Henwood. Stip. ¶ 206; DSMF ¶ 197; PRDSMF ¶ 197. She stated that when she had
first requested a meeting, it was with the intention to have a brief discussion and get
the benefit of input from FAUSA Henwood and EAUSA Novas.
DSMF ¶ 197;
PRDSMF ¶ 197. She continued, “That simple request turned into such an extensive
exchange of email messages that it defeated its original purpose and consume[d] time
and energy that I would have preferred to dedicate to my work.
I looked for
alternative sources of information and I am sorry for having requested the meeting.”
DSMF ¶ 197 (alteration in original); PRDSMF ¶ 197. AUSA Márquez-Marín thanked
FAUSA Henwood for his research and his time and noted that she was already
working on something else. DSMF ¶ 197; PRDSMF ¶ 197.
Four days later, on June 9, 2015, FAUSA Henwood wrote to AUSA MárquezMarín and asked whether she had been able to file for an extension in Santiago-Lugo.
Stip. ¶ 207; DSMF ¶ 198; PRDSMF ¶ 198. He wrote, “Again, please let me see what
you have drafted already for my comment and review.” Stip. ¶ 207; DSMF ¶ 198;
PRDSMF ¶ 198. AUSA Márquez-Marín responded that she had finished the brief
and had already filed it. Stip. ¶ 207; DSMF ¶ 198; PRDSMF ¶ 198. AUSA MárquezMarín did not think there was any need for her to show FAUSA Henwood her brief
before filing because FAUSA Henwood was not in her chain of command, had nothing
to do with the original prosecution of Mr. Santiago-Lugo, and had not filed a response
to Mr. Santiago-Lugo’s motion at district court. PSAMF ¶ 263; DRPSAMF ¶ 263.
She also thought he provided no pertinent research assistance since her concern was
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not a question of legal authority, but rather whether Mr. Santiago-Lugo had, as a
factual matter, a certain amount of drugs or not. 243 PSAMF ¶ 263; DRPSAMF ¶ 263.
At some point, ASUA Márquez-Marín and Chief Pérez came up with another
idea to get the needed information. 244 PSAMF ¶ 261; DRPSAMF ¶ 261. They
consulted with the prosecutors of the Appellate Division who had handled appeals by
Mr. Santiago-Lugo’s co-defendants.
PSAMF ¶ 261; DRPSAMF ¶ 261.
This
consultation gave AUSA Márquez-Marín the information she needed concerning the
drug quantity, to determine that Mr. Santiago-Lugo was not entitled to an
adjustment, and to file the government’s response on appeal.
PSAMF ¶ 261;
DRPSAMF ¶ 261. AUSA Márquez-Marín obtained an extension, filed the brief, and
prevailed on appeal. 245 PSAMF ¶ 264; DRPSAMF ¶ 264.
In the same June 9, 2015, email to Officer Western where AUSA MárquezMarín had expressed concern about the decision made regarding her assignment to
the Civil Division, AUSA Márquez-Marín stated that she had been subjected to
additional stress due to the new chain of command that she had encountered in
appeals. Stip. ¶ 208; DSMF ¶ 199; PRDSMF ¶ 199. This was a reference to EAUSA
The DOJ qualifies AUSA Márquez-Marín’s additional paragraph two hundred and sixty-three,
asserting that FAUSA Henwood believed his research to be on point. DRPSAMF ¶ 163. The Court
rejects this qualification but altered the paragraph to clarify that the opinion on the relevance of
FAUSA Henwood’s research assistance was AUSA Márquez-Marín’s.
244
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph two
hundred and sixty-one, asserting that AUSA Márquez-Marín was still corresponding with FAUSA
Henwood about the case. DRPSAMF ¶ 261. The Court rejects this qualification because it does not
contradict additional paragraph two hundred and sixty-one.
245
The DOJ denies that AUSA Márquez-Marín “sought or obtained an extension from the First
Circuit once she first brought the case to [FAUSA] Henwood’s attention.” DRPSAMF ¶ 264. But
AUSA Márquez-Marín’s additional paragraph two hundred and sixty-four does not say when she
sought and obtained the extension, only that she did so. PSAMF ¶ 264. The Court declines to accept
the DOJ’s denial because it is non-responsive.
243
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Novas. Stip. ¶ 208; DSMF ¶ 199; PRDSMF ¶ 199. EAUSA Novas, copied on the
email, responded on June 10, 2015, at 9:26 a.m. Stip. ¶ 209; DSMF ¶ 200; PRDSMF
¶ 200. As to AUSA Márquez-Marín’s claim of additional stress, she noted that
because
of
AUSA
Márquez-Marín’s
Telework
Agreement
and
reasonable
accommodation request, she had been very clear with Chief Pérez that AUSA
Márquez-Marín should be assigned only the least complex matters in the Appellate
Division to ensure that she could comfortably meet deadlines while she transitioned
to a full eight-hour day at the office. DSMF ¶ 200; PRDSMF ¶ 200. After referencing
several appellate cases in which AUSA Márquez-Marín had filed briefs, EAUSA
Novas wrote, “All these cases were assigned to you by [Chief Pérez] because the issues
on appeal were straightforward when compared to the more complex briefs handled
by more experienced AUSAs in the [Appellate D]ivision.” 246 DSMF ¶ 200; PRDSMF
¶ 200.
EAUSA Novas also mentioned AUSA Márquez-Marín’s work in the two
previous months (an average of one brief per month in cases that involved simple
sentencing issues) and the fact that she would not be traveling to Boston for any oral
arguments. DSMF ¶ 200; PRDSMF ¶ 200. As for Santiago-Lugo, EAUSA Novas
acknowledged that she had asked Chief Pérez to address with her the handling of the
appeal and her failure to follow the procedure. DSMF ¶ 200; PRDSMF ¶ 200. She
also pointed out that AUSA Márquez-Marín had filed the brief without showing it to
AUSA Márquez-Marín interposes a qualified response to the DOJ’s paragraph two hundred,
stating that even though EAUSA Novas wrote these statements, it does not mean that her words
accurately reflect EAUSA Novas’ beliefs or are true. PRDSMF ¶ 200. The Court does not draw these
inferences and so disregards AUSA Márquez-Marín’s qualification.
246
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FAUSA Henwood, despite FAUSA Henwood’s research assistance and his request to
see a draft.
DSMF ¶ 200; PRDSMF ¶ 200.
However, given her belief that
management had gone to lengths to alleviate AUSA Márquez-Marín’s workload and
given her own general non-involvement in AUSA Márquez-Marín’s appellate work,
EAUSA Novas stated that she was surprised that AUSA Márquez-Marín had felt the
new chain of command in the Appellate Division had added stress to her work. DSMF
¶ 200; PRDSMF ¶ 200. EAUSA Novas proposed that they meet as soon as possible
to discuss any concerns that AUSA Márquez-Marín had. DSMF ¶ 200; PRDSMF
¶ 200.
At 10:38 a.m., AUSA Márquez-Marín replied.
Stip. ¶ 210; DSMF ¶ 201;
PRDSMF ¶ 201. AUSA Márquez-Marín said she felt “targeted, under attack, and not
welcome.” DSMF ¶ 201; PRDSMF ¶ 201. She noted that she was surprised to read
that EAUSA Novas was reviewing her previous work on appeals and expressed that
EAUSA Novas’ impression of the type of work she had been doing was biased. DSMF
¶ 201; PRDSMF ¶ 201. She also said that she could not comprehend why EAUSA
Novas said she had failed to follow the protocol in the Santiago-Lugo case. DSMF
¶ 201; PRDSMF ¶ 201.
She explained that she had “voluntarily requested the
meeting with [FAUSA] Henwood . . . because [Mr.] Santiago-Lugo had co-defendants
that filed motions with similar requests and [she] wanted to benefit from [FAUSA]
Henwood’s input.” DSMF ¶ 201; PRDSMF ¶ 201. In conclusion, she wrote:
It is important to remember that I gave favorable testimony in support
of the EEO complaint that former employee [Specialist] Reyes filed
against you and other members of upper management. I also have an
EEO compliant filed against you and other members of upper
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management. I already received the transcripts of my interviews and I
know that they were sent to the USAO[] so I am sure you already know
the contents of my testimonies. Therefore all this messages and
harassment are not happening in a void . . ..
DSMF ¶ 201; PRDSMF ¶ 201.
After the exchange of emails on June 10, 2015, AUSA Márquez-Marín met with
EAUSA Novas and Chief Pérez later that day. Stip. ¶ 211; DSMF ¶ 202; PRDSMF
¶ 202.
At the meeting, AUSA Márquez-Marín communicated that she felt that
EAUSA Novas was harassing her as she was trying to reintegrate to the office after
her car accident. 247 DSMF ¶ 202; PRDSMF ¶ 202. She further said that EAUSA
Novas’ retaliation was having an adverse and damaging effect on her health. DSMF
¶ 202; PRDSMF ¶¶ 202-03. She stated that EAUSA Novas had a conflict of interest
since AUSA Márquez-Marín was involved in EEO complaints related to her and she
had testified in support of Specialist Reyes’ EEO complaint against upper
management, including EAUSA Novas. DSMF ¶ 202; PRDSMF ¶¶ 202-03. Also
raised was the applicability of the protocol in the Santiago-Lugo appeal and the
ability to request extensions. DSMF ¶ 202; PRDSMF ¶ 202.
The parties also discussed the appellate cases AUSA Márquez-Marín had
remaining (including the Manso-Cepeda appeal) and the fact that she would not be
assigned additional appellate cases. DSMF ¶ 202; PRDSMF ¶ 202. AUSA MárquezMarín renewed her request for a transfer to the Civil Division and asked EAUSA
AUSA Márquez-Marín interposes a qualified response to DOJ’s paragraph two hundred and
three. PRDSMF ¶ 203. Although her comments seem better directed to paragraph two hundred and
two, the Court integrated them into the description of the June 10, 2015, meeting because it is required
to view contested facts in the light most favorable to AUSA Márquez-Marín.
247
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Novas to refrain from interfering with her work in the meantime. DSMF ¶ 202;
PRDSMF ¶¶ 202-03.
It was clarified that her request for transfer to the Civil
Division would be expedited. DSMF ¶ 202; PRDSMF ¶¶ 202-03. EAUSA Novas
admitted that the policies and protocols that she had accused AUSA Márquez-Marín
of not following were not applicable to the Santiago-Lugo case. 248 DSMF ¶ 203;
PRDSMF ¶ 203. Also, EAUSA Novas told AUSA Márquez-Marín that she had to
send a copy of her next brief, the Manso-Cepeda brief, to trial counsel in that case,
AUSA Cannon. DSMF ¶ 203; PRDSMF ¶ 203. AUSA Márquez-Marín testified that
when she left the meeting, she found it to be productive. DSMF ¶ 203; PRDSMF
¶ 203. EAUSA Novas and Chief Pérez also found the meeting to be productive.
DSMF ¶ 203; PRDSMF ¶ 203.
Following this meeting, EAUSA Novas emailed AUSA Márquez-Marín on the
same day. Stip. ¶ 212; DSMF ¶ 204; PRDSMF ¶ 204. EAUSA Novas stated that
because they had met, she would not address the contents of AUSA Márquez-Marín’s
email from earlier that day. DSMF ¶ 204; PRDSMF ¶ 204. EAUSA Novas, however,
emphasized that she was reviewing not only AUSA Márquez-Marín’s briefs, but
everyone’s briefs and workload on a daily basis. DSMF ¶ 204; PRDSMF ¶ 204. She
also expressed that in no way were the emails of the previous week related to the
The DOJ’s paragraph two hundred and three states only that AUSA Márquez-Marín, EAUSA
Novas, and Chief Pérez all found the meeting productive. DSMF ¶ 203. AUSA Márquez-Marín
clarifies that her view that the meeting was productive was in part based on EAUSA Novas’ concession
that the policies and protocols that she had accused AUSA Márquez-Marín of violating were not in
fact applicable to the Santiago-Lugo case. PRDSMF ¶ 203. Also, AUSA Márquez-Marín said that
EAUSA Novas told her that she would have to send a copy of her next brief to trial counsel. PRDSMF
¶ 203. The Court included these statements because without them there would be a misimpression
that AUSA Márquez-Marín had acknowledged fault.
248
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Santiago-Lugo appeal intended to be an attack on AUSA Márquez-Marín. DSMF
¶ 204; PRDSMF ¶ 204.
Nor, according to EAUSA Novas, did the emails have
anything to do with AUSA Márquez-Marín’s EEO activity. DSMF ¶ 204; PRDSMF
¶ 204. With respect to AUSA Márquez-Marín’s request for a transfer to the Civil
Division, EAUSA Novas stated that (1) the request would be evaluated by Civil
Division Chief Ramírez to determine what type of work would fit the limitations
placed on AUSA Márquez-Marín by her doctor and the four-hour Telework
Agreement and (2) the position in the Civil Division would not be filled until that
evaluation was completed. DSMF ¶ 204; PRDSMF ¶ 204.
Five days later, on June 15, 2015, United States Attorney Rodríguez signed a
Certificate of Appreciation for AUSA Márquez-Marín for her work in 2014. 249 Stip.
¶ 213; DSMF ¶ 205; PRDSMF ¶ 205.
v.
United States v. Manso-Cepeda
On May 11, 2015, Chief Pérez assigned AUSA Márquez-Marín to submit an
appellate brief to the Court of Appeals for the First Circuit on behalf of the United
States in United States v. Manso-Cepeda, case number 14-2068. Stip. ¶ 214; DSMF
¶¶ 206, 208; PRDSMF ¶¶ 206, 208. AUSA Márquez-Marín was working on the
Manso-Cepeda appeal, among others, in the spring of 2015.
PSAMF ¶ 269;
DRPSAMF ¶ 269. The case had been handled at trial by AUSA Cannon. PSAMF
¶ 269; DRPSAMF ¶ 269; DSMF ¶ 206; PRDSMF ¶ 206. AUSA Cannon had been in
AUSA Márquez-Marín admits the DOJ’s paragraph two hundred and five but disputes its
significance. PRDSMF ¶ 205. As AUSA Márquez-Marín admits the paragraph, the Court included it
and will leave its significance to the pending dispositive motion for argument of counsel.
249
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the Puerto Rico USAO for about one year and a half and had previously been an
AUSA in Washington, D.C., for approximately four years. 250
PSAMF ¶ 269;
DRPSAMF ¶ 269. AUSA Cannon had reviewed numerous appeals when he was an
AUSA in Washington, D.C., and had also been an intern in the Appellate Division at
the USAO in Washington, D.C., during law school. 251 DSMF ¶ 214; PRDSMF ¶ 214.
One of the key issues in the case on appeal was whether knowledge of the fact
that a passenger had a gun could be imputed to the driver of a car (the defendant in
Manso-Cepeda). Stip. ¶ 215; DSMF ¶ 207; PRDSMF ¶ 207. On May 13, 2015, EAUSA
Novas wrote to Chief Pérez and asked him to check with AUSA Márquez-Marín
whether the case, which involved a trial before the district court, was something that
she was able to handle. Stip. ¶ 216; DSMF ¶ 208; PRDSMF ¶ 208. Chief Pérez
responded that AUSA Márquez-Marín had confirmed that she was comfortable
handling the case. Stip. ¶ 216; DSMF ¶ 208; PRDSMF ¶ 208. AUSA MárquezMarín’s brief was originally due to be filed with the First Circuit by June 8, 2015, but
the First Circuit extended this deadline to July 8, 2015. DSMF ¶ 209; PRDSMF
¶ 209.
On July 1, 2015, AUSA Márquez-Marín met with AUSA Cannon and Chief
Pérez to discuss the case. DSMF ¶ 210; PRDSMF ¶ 210. After AUSA Cannon
The parties dispute whether AUSA Cannon could fairly be described as “relatively
inexperienced” when he tried the Manso-Cepeda case. PSAMF ¶ 269; DRPSAMF 269. Rather than
enter the dispute and attempt to categorize his level of experience, the Court set forth AUSA Cannon’s
actual experience about which the parties do agree.
251
The DOJ’s paragraph two hundred and fourteen states that AUSA Cannon had been involved
in numerous appeals in his proper position as an AUSA in Washington, D.C. DSMF ¶ 214. AUSA
Márquez-Marín quotes his actual testimony. PRDSMF ¶ 214. The Court inserted his actual testimony
rather than the DOJ’s description of his testimony.
250
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described the long shotgun introduced as evidence at trial, AUSA Márquez-Marín
asked him its exhibit number.
DSMF ¶ 210; PRDSMF ¶ 210.
AUSA Cannon
indicated that he thought the weapon was Exhibit 19. DSMF ¶ 210; PRDSMF ¶ 210.
At 2:01 p.m. on July 7, 2015, AUSA Márquez-Marín sent an email to AUSA
Cannon, copying Chief Pérez, informing him that she had left a draft brief in his office
for his review. Stip. ¶ 217; PSAMF ¶ 270; DRPSAMF ¶ 270; DSMF ¶ 211; PRDSMF
¶ 211. This was the day before the brief was due and was the first notification AUSA
Cannon received from AUSA Márquez-Marín that a draft brief was ready for his
review in the case. DSMF ¶ 211; PRDSMF ¶ 211. This draft was the first of several
drafts she eventually prepared. PSAMF ¶ 270; DRPSAMF ¶ 270.
AUSA Márquez-Marín submitted the draft to trial counsel as required, not to
get comments on grammar or spelling, but “to see if [she] had identified the
substantive issue properly.” 252 PSAMF ¶ 270 (alteration in original); DRPSAMF
¶ 270. AUSA Márquez-Marín had not yet checked the draft for grammatical or
spelling errors. PSAMF ¶ 270; DRPSAMF ¶ 270. Nor had AUSA Márquez-Marín
included in this first draft any citations to the trial transcript. PSAMF ¶ 271;
DRPSAMF ¶ 271. To remind herself where she obtained these facts, she noted that
“the underlying facts are taken from the [Pre-Sentence Report (PSR)] dated August
The DOJ interposes a qualified response to AUSA Márquez-Marín’s additional paragraph two
hundred and seventy, noting that AUSA Márquez-Marín did not inform AUSA Cannon that she was
requesting only a substantive review. DRPSAMF ¶ 270. The Court declines to accept the DOJ’s
qualified response. The email noted that she has dropped off a “(Draft)” brief and asked AUSA Cannon
to let her know if she was “missing something.” DRPSAMF ¶ 270 (quoting Stip., Attach. 1, Ex. 91).
Viewing this language in the light most favorable to AUSA Márquez-Marín, the Court interprets her
review request as asking AUSA Cannon for a substantive review.
252
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25, 2014.” 253 PSAMF ¶ 271; DRPSAMF ¶ 271. It was obvious to AUSA MárquezMarín, who had by then written over a dozen appellate briefs, that she did not intend
to include the PSR as the record reference in substitution of the trial record. PSAMF
¶ 271; DRPSAMF ¶ 271.
At 2:34 p.m. on July 7, 2015, AUSA Cannon wrote to AUSA Márquez-Marín,
“Will look at it right away.” Stip. ¶ 218; DSMF ¶ 212; PRDSMF ¶ 212. AUSA
Márquez-Marín replied, “I am out of the office but you can leave it at my office when
you finish.” Stip. ¶ 218; DSMF ¶ 212; PRDSMF ¶ 212. AUSA Cannon then reviewed
AUSA Márquez-Marín’s draft and later that day at 4:38 p.m. sent AUSA MárquezMarín an email, copying Chief Pérez, and an attachment with his comments on the
brief. Stip. ¶ 219; DSMF ¶ 213; PRDSMF ¶ 213. He began by saying, “I think we
should file for an extension in this case.” DSMF ¶ 213; PRDSMF ¶ 213. He wrote
that he had some “substantial feedback” that should be included. DSMF ¶ 213;
PRDSMF ¶ 213.
At the time of AUSA Cannon’s July 7, 2015, emails to AUSA Márquez-Marín,
he was not in AUSA Márquez-Marín’s chain of command. Stip. ¶ 220. AUSA Cannon
marked up her first draft as if it was a final draft, making AUSA Márquez-Marín feel
that EAUSA Novas was involved. 254 PSAMF ¶ 272; DRPSAMF ¶ 272. AUSA Cannon
The DOJ interposes a qualified response to the second and third sentences of AUSA MárquezMarín’s additional paragraph two hundred and seventy-one, asserting that AUSA Márquez-Marín did
not convey this information to AUSA Cannon. The Court rejects this qualification because it does not
contradict the paragraph, which discusses AUSA Márquez-Marín’s intentions.
254
The DOJ interposes various qualifications and denials in its response. DRPSAMF ¶ 272. The
Court declines to accept most of these qualifications and denials because it is required to view
contested factual issues in the light most favorable to AUSA Márquez-Marín. One exception is the
DOJ’s denial that AUSA Cannon discussed this matter with EAUSA Novas at the time of the emails.
DRPSAMF ¶ 272. The Court agrees with the DOJ that the cited authority does not support this fact.
253
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marked up the brief by hand, scanned his edits, and attached them to the email,
DSMF ¶ 213; PRDSMF ¶ 213; he redlined the document, correcting minor
grammatical and typographical errors, and formatted issues, a task usually handled
by legal assistants. PSAMF ¶ 272; DRPSAMF ¶ 272. AUSA Cannon discussed the
Rosemond case, suggested the caselaw analysis was not developed, and proposed
addressing inaccuracies in Mr. Manso-Cepeda’s brief. DSMF ¶ 213; PRDSMF ¶ 213.
AUSA Cannon even questioned why AUSA Márquez-Marín was supposedly using a
PSR for factual references rather than the trial transcript, although that was never
her intention with respect to the first draft. PSAMF ¶ 272; DRPSAMF ¶ 272; DSMF
¶ 213; PRDSMF ¶ 213.
AUSA Márquez-Marín thought AUSA Cannon was being disrespectful. 255
DSMF ¶ 214; PRDSMF ¶ 214. She testified that “he had never done an appeal in his
life and was in [the Violent Crimes Unit] for less than a year.”
(alteration in original); PRDSMF ¶ 214.
DSMF ¶ 214
Believing that AUSA Cannon was
inexperienced and finding it “really strange” that AUSA Cannon had scanned his
corrections, she came to the conclusion that EAUSA Novas had to be behind the
Therefore, the Court altered the paragraph to more accurately reflect AUSA Márquez-Marín’s
testimony. See PSAMF, Attach. 3, Ex. R: Excerpts from the Dep. of Carmen Márquez at 118:05-119:21.
255
The DOJ’s original first sentence in paragraph two hundred and fourteen states that AUSA
Márquez-Marín “took offense.” DSMF ¶ 214. AUSA Márquez-Marín objects, saying that this
statement is not supported by the record. PRDSMF ¶ 214. She says instead that she thought AUSA
Cannon was being disrespectful. PRDSMF ¶ 214. The Court used AUSA Márquez-Marín’s preferred
language even though it seems obvious that AUSA Márquez-Marín did take offense because she
thought AUSA Cannon was being disrespectful.
AUSA Márquez-Marín also notes that her belief that AUSA Cannon was inexperienced and
that EAUSA Novas was behind AUSA Cannon’s comments was accurate. PRDSMF ¶ 214. Elsewhere
in its statement of facts, the Court discusses AUSA Cannon’s level of experience and EAUSA Novas’
involvement in the controversy between AUSA Márquez-Marín and AUSA Cannon. See supra notes
250, 254.
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comments, that EAUSA Novas was not complying with the purported June 10
agreement to refrain from interfering in her cases, and that EAUSA Novas was
“hunting [her] again.” DSMF ¶ 214 (alteration in original); PRDSMF ¶ 214.
Either that same afternoon or the next morning, ASUA Cannon discussed this
draft directly with EAUSA Novas, who was not in his supervisory chain and was the
second-line supervisor for AUSA Márquez-Marín, after Chief Pérez. 256 PSAMF ¶ 273;
DRPSAMF ¶ 273; DSMF ¶ 217; PRDSMF ¶ 217. AUSA Cannon told EAUSA Novas
that he was concerned because Manso-Cepeda was an important case for the USAO’s
Violent Crimes Unit, the brief was due, and it needed a lot of work. DSMF ¶ 217;
PRDSMF ¶ 217. EAUSA Novas saw that AUSA Cannon was frustrated with the
quality of the brief drafted by AUSA Márquez-Marín, so she requested that he send
her his initial comments. DSMF ¶ 217; PRDSMF ¶ 217. AUSA Cannon provided the
redlined draft to EAUSA Novas at her request. PSAMF ¶ 274; DRPSAMF ¶ 274.
EAUSA Novas asked AUSA Cannon to do so in order to discuss the matter with Chief
Pérez to demonstrate that AUSA Márquez-Marín was handing in substandard
work. 257 PSAMF ¶ 274; DRPSAMF ¶ 274; DSMF ¶ 217; PRDSMF ¶ 217. AUSA
AUSA Márquez-Marín admits the DOJ’s paragraph two hundred and seventeen, but she
interposes a qualified response to note that it is highly unusual for a trial counsel to consult a secondline supervisor rather than going to her first and then going through the mandated chain of command.
PRDSMF ¶ 217. The Court did not alter the paragraph because this point does not contradict the
paragraph and is implied by the language the Court included from AUSA Márquez-Marín’s additional
paragraph two hundred and seventy-three. Thus, the Court rejects the qualification as cumulative.
257
The DOJ denies the portion of AUSA Márquez-Marín’s additional paragraph two hundred and
seventy-four that states EAUSA Novas requested the redlined brief to “demonstrate that [AUSA]
Márquez[-Marín] was handing in substandard work.” DRPSAMF ¶ 274. The Court rejects the DOJ’s
denial because AUSA Márquez-Marín’s assertion is a logical inference from the alleged facts that are
supported by record citations. The DOJ also denies that AUSA Cannon redlined the document, stating
that he marked up the brief by hand, not computer. DRPSAMF ¶ 274. The Court rejects this
qualification because redlining can be done by hand.
256
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Cannon wrote to EAUSA Novas, “Per your request, this is the input I had for the
Manso-Cepeda brief.”
DSMF ¶ 217; PRDSMF ¶ 217.
AUSA Cannon forwarded
EAUSA Novas an email which contained his feedback on AUSA Márquez-Marín’s
brief. DSMF ¶ 217; PRDSMF ¶ 217.
The next morning, July 8, 2015, Chief Pérez, who had been copied on AUSA
Cannon’s 4:38 p.m. email, wrote to AUSA Márquez-Marín and AUSA Cannon and
mentioned that they could ask for a short extension of five days. Stip. ¶ 221; DSMF
¶ 215; PRDSMF ¶ 215. AUSA Márquez-Marín filed the proposed extension, which
the First Circuit subsequently granted on July 9, 2015, extending the deadline until
July 13, 2015. Stip. ¶ 222; DSMF ¶ 215; PRDSMF ¶ 215.
Also, on the morning of July 8, 2015, AUSA Márquez-Marín emailed AUSA
Cannon and asked if he could meet around 10:00 a.m. Stip. ¶ 223; DSMF ¶ 216;
PRDSMF ¶ 216. He replied that even though he was busy, he could try. Stip. ¶ 223;
DSMF ¶ 216; PRDSMF ¶ 216. After 10:00 a.m. on July 8, 2015, and at some point
during the morning that day, AUSA Márquez-Marín and AUSA Cannon met. Stip.
¶ 224; DSMF ¶ 218; PRDSMF ¶ 218. At 1:17 p.m. that day, AUSA Márquez-Marín
wrote to AUSA Cannon. Stip. ¶ 225; DSMF ¶ 219; PRDSMF ¶ 219. In part, she
thanked him for his input and noted that she would provide him with a revised draft.
DSMF ¶ 219; PRDSMF ¶ 219. At 1:46 p.m., AUSA Márquez-Marín provided AUSA
Cannon with a revised draft. Stip. ¶ 226. She asked him not to share the draft with
anyone until the brief was ready, stating, “Remember that this is an informal process
so you can leave me the printout copy at my office chair, as I told you yesterday, you
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don’t have to scan it, as the draft is still a work in process . . ..” Stip. ¶ 226; DSMF
¶ 219; PRDSMF ¶ 219.
The following morning, July 9, 2015, in a separate email, AUSA MárquezMarín asked AUSA Cannon if he was sure that the shotgun in question was labeled
as Exhibit 19. Stip. ¶ 227; DSMF ¶ 220; PRDSMF ¶ 220. On July 10, 2015, at 2:05
p.m., AUSA Cannon emailed AUSA Márquez-Marín regarding her revised draft,
copying SUSA Hernández, his supervisor, and Chief Pérez. Stip. ¶ 228; DSMF ¶ 221;
PRDSMF ¶ 221. AUSA Cannon addressed the email to “all.” DSMF ¶ 220; PRDSMF
¶ 220. The 2:05 p.m. AUSA Cannon email contained a portion in which AUSA
Cannon stated, “here are my comments/suggestions.” Stip. ¶ 229. This was followed
by language and certain points that he suggested should be incorporated into the
brief. Stip. ¶ 229. He began by saying, “I took a look at the revised brief and have
cc’d my supervisor to pull her into the loop. I think this is an important case for our
section, particularly because of the aiding and abetting aspect. The First Circuit has
been hot on this lately . . ..” DSMF ¶ 221 (alteration in original); PRDSMF ¶ 221. He
stated his belief that the government needed to address certain cases; that certain
record excerpts should be added to the brief’s statement of facts; that the
government 258 had properly instructed the jury about knowledge, contrary to Mr.
Manso-Cepeda’s contentions; and that they should draw from the district judge’s
memorandum and order denying Mr. Manso-Cepeda’s motion for judgment of
The Court included the DOJ’s paragraph two hundred and twenty-one as drafted, but the
government does not instruct the jury. Presumably the DOJ meant that it presented proper
instructions to the Court or that the Court properly instructed the jury.
258
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acquittal. DSMF ¶ 221; PRDSMF ¶ 221. AUSA Cannon concluded by saying, “As
always, I am available to assist in the preparation of the brief anytime, so please let
me know.” DSMF ¶ 221; PRDSMF ¶ 221. Chief Pérez testified that AUSA Cannon’s
comments “made a lot of sense.” DSMF ¶ 221; PRDSMF ¶ 221.
Within ten minutes, AUSA Márquez-Marín responded, copying Chief Pérez
and SUSA Hernández. Stip. ¶ 230; DSMF ¶ 222; PRDSMF ¶ 222. She began by
saying, “This is a first but not surprising.” DSMF ¶ 222; PRDSMF ¶ 222. This was
a reference to how AUSA Cannon had included his supervisors on his prior email.
DSMF ¶ 222; PRDSMF ¶ 222.
AUSA Márquez-Marín continued by noting that
although she was happy to read the language that AUSA Cannon wanted to
incorporate, her main concern was the AUSA Cannon had given her the wrong exhibit
list and exhibit number for the shotgun. DSMF ¶ 222; PRDSMF ¶ 222. She wanted
to include the exhibit list and exhibit number for the shotgun as an addendum to the
brief and she did not want to include incorrect information. DSMF ¶ 222; PRDSMF
¶ 222. AUSA Márquez-Marín was also concerned about EAUSA Novas’ role in this
process. 259 DSMF ¶ 222; PRDSMF ¶ 221.
AUSA Cannon, copying Chief Pérez and SUSA Hernández, replied that this
information was available in the transcripts and on the docket, to which AUSA
Márquez-Marín had access. Stip. ¶ 231; DSMF ¶ 223; PRDSMF ¶ 223. He noted that
AUSA Márquez-Marín’s qualification of the DOJ’s paragraph two hundred and twenty-one
addresses the text of the DOJ’s paragraph two hundred and twenty-two, so the Court views it as a
qualification of the latter paragraph. AUSA Márquez-Marín qualifies her response to reflect that the
incorrect exhibit number was only one of her concerns with respect to AUSA Cannon’s actions and that
she was also concerned about EAUSA Novas’ role in the process. PRDSMF ¶ 221. The Court included
this added fact in accordance with its obligation to view contradicting evidence in the light most
favorable to AUSA Márquez-Marín.
259
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the firearm was admitted as Exhibit 25 and the photo of the firearm was admitted as
Exhibit 16. Stip. ¶ 231; DSMF ¶ 223; PRDSMF ¶ 223. AUSA Cannon also noted that
although the exhibit list was on the trial docket, he was sending it to her. Stip. ¶ 231;
DSMF ¶ 223; PRDSMF ¶ 223. He stated in conclusion: “I appreciate being part of
this process, but it’s not my responsibility, as far as I know, to review the docket for
things to include in your brief. If I’m mistaken, I would ask [SUSA Hernández] and
[Chief Pérez] to please correct me.” Stip. ¶ 231; DSMF ¶ 223; PRDSMF ¶ 223.
Meanwhile, SUSA Hernández wrote to EAUSA Novas, who had not been
included in the latest email exchanges. Stip. ¶ 232; DSMF ¶ 224; PRDSMF ¶ 224.
She forwarded those exchanges and stated in part, “I refer this matter to your
attention since it involves an appeal.” Stip. ¶ 232; DSMF ¶ 224; PRDSMF ¶ 224.
SUSA Hernández noted that AUSA Cannon, “copied herein,” wanted to ensure that
the appellate brief contained all pertinent information and that he was available to
respond to any questions and that AUSA Cannon had “expressed his interest in doing
the oral argument of this appeal, if necessary.” DSMF ¶ 224; PRDSMF ¶ 224.
At 3:14 p.m. on Friday, July 10, 2015, EAUSA Novas wrote to Chief Pérez,
copying SUSA Hernández and AUSA Cannon:
We need to discuss this Monday. The first draft of this brief, which was
submitted to AUSA Cannon for review the day before it was due was
sub-standard in all respects (facts, substance and proofreading).
Moreover, I find AUSA [Márquez-Marín’s] attitude towards a colleague
who went out of his way to assist in the process quite disconcerting. In
particular please refer to her sarcastic remark when he included his
supervisor in the chain of emails (“this is a first but not surprising”). I
understand that this brief is due on July 13, please make sure that all
the changes suggested by AUSA Cannon are incorporated in the final
draft.
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Stip. ¶ 233; DSMF ¶ 225; PRDSMF ¶ 225. In response, on the following Monday,
July 13, 2015, at 9:02 am., Chief Pérez told EAUSA Novas that he had already
informed AUSA Cannon that all his changes would be incorporated. Stip. ¶ 233;
DSMF ¶ 226; PRDSMF ¶ 226.
Also, on Monday, July 13, 2015, at 11:53 a.m., AUSA Márquez-Marín wrote to
AUSA Cannon. Stip. ¶ 234; DSMF ¶ 227; PRDSMF ¶ 227. She thanked him for the
correct exhibit list and exhibit numbers. DSMF ¶ 227; PRDSMF ¶ 227. She also
asked him to send the language that he wanted to include in the brief to address the
cases he listed. DSMF ¶ 227; PRDSMF ¶ 227. AUSA Cannon responded at 2:19 p.m.
that same day and referred her to his prior emails. Stip. ¶ 234; DSMF ¶ 227;
PRDSMF ¶ 227.
On that same Monday at 6:10 p.m., AUSA Márquez-Marín wrote to AUSA
Cannon, copying Chief Pérez. Stip. ¶ 235; DSMF ¶ 228; PRDSMF ¶ 228. She
indicated that she was supposed to leave the office at 3:00 p.m. and that she had
waited until 3:30 p.m. for him to return the draft of the brief she had given him the
previous week. Stip. ¶ 235; DSMF ¶ 228; PRDSMF ¶ 228. She also stated that at
3:30 p.m., she had been informed by Chief Pérez that AUSA Cannon had given him a
draft with AUSA Cannon’s comments after 3:00 p.m. Stip. ¶ 235; DSMF ¶ 228;
PRDSMF ¶ 228. She suggested that “since the case [wa]s due [the next day],” she
would have to file a request for a one-day extension with the First Circuit. Stip.
¶ 235; DSMF ¶ 228; PRDSMF ¶ 228. AUSA Márquez-Marín filed a motion for an
extension on July 13, 2015, in which she asked for a one-day extension. Stip. ¶ 236;
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DSMF ¶ 228; PRDSMF ¶ 228. The First Circuit granted the motion. Stip. ¶ 236;
DSMF ¶ 228; PRDSMF ¶ 228.
After receiving AUSA Márquez-Marín’s email, AUSA Cannon responded to her
at 7:31 p.m. on July 13, 2015, copying SUSA Hernández and Chief Pérez. Stip. ¶ 237;
DSMF ¶ 229; PRDSMF ¶ 229. He wrote:
You and your supervisor should discuss what to do regarding an
extension. As for the timing, I spent substantial time reviewing your
initial draft of the brief and submitted both a hard copy of my edits and
a long email (see Email of July 7, 2015 below) that included suggestions
on case law and responses to the defendant’s brief that I believed were
necessary. You ignored most, if not all, of my suggestions related to the
substance of the brief and provided me a “final draft” on Friday. That
same day, I again sent an email (see July 10, 2015 email) that included
substantial changes that I believed needed to be made. You responded
by sending a condescending email about my involvement and blaming
me for not providing you with the correct exhibit numbers for the
firearm and a photo that was introduced. The “final brief” contains an
abundance of typos, missing citations, and generally is not ready for
filing in my opinion. The edits I gave to [Chief Pérez] were just a start
because he believed it would be helpful for me to actually mark up the
brief when I spoke to him this afternoon. There is nothing that was not
contained in my emails from last week that has prevented you from
making the necessary changes. Finally, to be candid, in my 5.5 years as
an AUSA, I’ve never been treated so unprofessionally as you have
treated me during the last week. Your insistence on blaming me for not
meeting the deadline of this brief is offensive and insulting.
Stip. ¶ 237; DSMF ¶ 229; PRDSMF ¶ 229. At 7:37 p.m., AUSA Cannon forwarded to
EAUSA Novas and SUSA Hernández his correspondence with AUSA MárquezMarín. 260 Stip. ¶ 238; PSAMF ¶ 275; DRPSAMF ¶ 275; DSMF ¶ 230; PRDSMF ¶ 230.
He wrote:
The DOJ denies AUSA Márquez-Marín’s additional paragraph two hundred and seventy-five,
arguing that the cited authority shows only one email that AUSA Cannon sent EAUSA Novas and
that AUSA Cannon’s statements were made to AUSA Márquez-Marín and then forwarded, not made
to EAUSA Novas directly. DRPSAMF ¶ 275. The Court reviewed the cited authority and agrees with
260
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See below for the latest. I’m no longer sure how to handle this. Frankly,
it’s become unprofessional and distracting. If you would like, I’m happy
to request an extension and write this brief myself. I would want a few
weeks but if we think the [First] Circuit would allow, it may be our best
option. [Chief Pérez] has been receptive to my comments and emails, so
I’m happy to work with him on it.
Stip. ¶ 238 (some alterations in original); DSMF ¶ 230; PRDSMF ¶ 230. At 7:43 p.m.,
twelve minutes after AUSA Cannon’s 7:31 p.m. email, AUSA Márquez-Marín replied
to AUSA Cannon:
I must say that in my 14 years as an AUSA, I never had an experience
like this with a new coworker. Also in the recent years that I have been
doing appeals my experience with the AUSAs that handled the cases at
the district court has been quite different and not hostile. This makes
me wonder what is really going on?
Stip. ¶ 239; DSMF ¶ 232; PRDSMF ¶ 232. A minute later AUSA Márquez-Marín
sent a copy of her reply to Chief Pérez, copying SUSA Hernández—the same
supervisors who were copied on AUSA Cannon’s 7:31 p.m. email to her. Stip. ¶ 239;
DSMF ¶ 232; PRDSMF ¶ 232. In response to AUSA Cannon’s email, at 7:46 p.m.,
EAUSA Novas wrote Chief Pérez, copying SUSA Hernández and AUSA Cannon.
DSMF ¶ 231; PRDSMF ¶ 231.
She wrote, “I am extremely surprised and
disappointed that it appears that this brief is not near completion.” DSMF ¶ 231;
PRDSMF ¶ 231.
She also stated that AUSA Márquez-Marín’s unprofessional
behavior towards her colleague would have to be addressed. DSMF ¶ 231; PRDSMF
¶ 231. She instructed Chief Pérez to take over the brief from AUSA Márquez-Marín
the DOJ on both points. The Court struck these portions of the paragraph and included the remaining
parts, which correspond with Joint Stipulation paragraph two hundred and thirty-eight. See Stip.
¶ 238.
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and told him that AUSA Cannon was willing to work with him.
DSMF ¶ 231;
PRDSMF ¶ 231.
At 8:21 p.m., AUSA Cannon replied to AUSA Márquez-Marín:
I have no idea what you are insinuating, but I’ve just tried to provide
some insight and assistance. You don’t seem to want my help or to
incorporate my comments, and that is both surprising and
disappointing.
Stip. ¶ 240; DSMF ¶ 233; PRDSMF ¶ 233. At 8:36 p.m., SUSA Hernández forwarded
to EAUSA Novas AUSA Márquez-Marín’s 7:43 p.m. email to AUSA Cannon. Stip.
¶ 241; DSMF ¶ 234; PRDSMF ¶ 234.
The next morning, July 14, 2015, EAUSA Novas emailed Chief Pérez, copying
United States Attorney Rodríguez and FAUSA Henwood, and asked him to meet with
AUSA Márquez-Marín to explain to her that her performance on the brief was substandard and that her sarcastic comments to AUSA Cannon (in the email of the
previous day at 7:43 p.m. and previously in her email dated July 10, 2015, at 2:15
p.m.) were unnecessary. Stip. ¶ 242; DSMF ¶ 235; PRDSMF ¶ 235. Of AUSA
Cannon, she wrote, “He has been, and continues to be, willing to assist to make sure
the quality of the final brief is up to the standards this office expects.” Stip. ¶ 242;
DSMF ¶ 235; PRDSMF ¶ 235. She also reiterated her instruction that Chief Pérez
take over the file from AUSA Márquez-Marín and told him to request a brief
extension of time if necessary to finalize the brief. Stip. ¶ 242; DSMF ¶ 235; PRDSMF
¶ 235. She repeated that AUSA Cannon would assist. Stip. ¶ 242; DSMF ¶ 235;
PRDSMF ¶ 235. Chief Pérez and AUSA Cannon then worked on the Manso-Cepeda
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brief and filed the brief on July 15, 2015. Stip. ¶¶ 243-44; DSMF ¶ 236; PRDSMF
¶ 236.
On July 17, 2015, Chief Pérez met with AUSA Márquez-Marín as instructed
by EAUSA Novas to address EAUSA Novas’ concerns about AUSA Márquez-Marín’s
work on the Manso-Cepeda brief and her treatment of AUSA Cannon. Stip. ¶ 245;
DSMF ¶ 237; PRDSMF ¶ 237.
AUSA Cannon eventually argued the Manso-Cepeda case before the First
Circuit Court of Appeals, which affirmed the judgment of the district court in favor
of the government and against Mr. Manso-Cepeda in United States v. Manso-Cepeda,
810 F.3d 846 (1st Cir. 2016). PSAMF ¶ 276; DRPSAMF ¶ 276. The oral argument in
the Manso-Cepeda appeal was AUSA Cannon’s first oral argument before the First
Circuit. 261 PSAMF ¶ 276; DRPSAMF ¶ 276. Today, AUSA Cannon is a supervisor
in the USAO, having been named to that position in 2018. PSAMF ¶ 277; DRPSAMF
¶ 277.
w.
United States v. Ronald Gall
At the July 17, 2015, meeting with Chief Pérez, AUSA Márquez-Marín asked
to be relieved from the last appeal that had been assigned to her, United States v.
Ronald Gall. Stip. ¶ 245; DSMF ¶ 237; PRDSMF ¶ 237. Chief Pérez told AUSA
Márquez-Marín that he had no authority to remove her from the case; the request
had to be made to United States Attorney Rodríguez. Stip. ¶ 245; DSMF ¶ 237;
The DOJ qualifies AUSA Márquez-Marín’s additional paragraph two hundred and seventysix, stating that AUSA Cannon had argued a case before the First Circuit through a written
submission before this case. DRPSAMF ¶ 276. The Court altered the paragraph to clarify that this
argument was AUSA Cannon’s first oral argument before the First Circuit.
261
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PRDSMF ¶ 237. On July 20, 2015, AUSA Márquez-Marín sent an email to United
States Attorney Rodríguez, copying FAUSA Henwood, EAUSA Novas, her attorney,
and an EEO investigator. Stip. ¶ 247; DSMF ¶ 238; PRDSMF ¶ 238. In this email,
with the subject line “Retaliation,” AUSA Márquez-Marín (1) notified United States
Attorney Rodríguez of several instances of alleged harassment and reprisal since she
returned to work, (2) asked if management would give her copies of certain emails,
and (3) requested reassignment of the Gall appeal. DSMF ¶ 238; PRDSMF ¶ 238.
The next day, Chief Pérez informed AUSA Márquez-Marín that United States
Attorney Rodríguez had authorized her withdrawal from the Gall appeal. Stip. ¶ 248.
On July 23, 2015, United States Attorney Rodríguez replied to AUSA MárquezMarín’s July 20, 2015, email. Stip. ¶ 249; DSMF ¶ 239; PRDSMF ¶ 239. She
reiterated that AUSA Márquez-Marín’s request to be taken off the Gall appeal had
been approved.
Stip. ¶ 249; DSMF ¶ 239; PRDSMF ¶ 239. She denied AUSA
Márquez-Marín’s request for emails but said that if AUSA Márquez-Marín believed
she had been retaliated against for protected activity, she could contact the EEO staff.
Stip. ¶ 249; DSMF ¶ 239; PRDSMF ¶ 239.
On July 30, 2015, Chief Pérez
memorialized the July 17 meeting in an email memorandum to United States
Attorney Rodríguez. Stip. ¶ 246. Chief Pérez did so as per EAUSA Novas’ request.
Stip. ¶ 246.
x.
The 2015 EEO Pre-Complaint and Complaint
On July 29, 2015, AUSA Márquez-Marín filed another EEO pre-complaint.
Stip. ¶ 250; DSMF ¶ 240; PRDSMF ¶ 240. She alleged discrimination based on
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parental status and physical disability, as well as retaliation and harassment/hostile
work environment, and complained generally about her treatment during her
reintegration into the office starting in the spring of 2015. DSMF ¶ 240; PRDSMF
¶ 240. She stated that “[t]he persons who have engaged in this conduct and/or
promoted it are EAUSA [Novas], FAUSA Henwood, and [United States Attorney]
Rodríguez. DSMF ¶ 240 (some alterations in original); PRDSMF ¶ 240.
On August 20, 2015, AUSA Márquez-Marín filed a second formal EEO
complaint. 262 Stip. ¶ 251; PSAMF ¶ 293; DRPSAMF ¶ 293; DSMF ¶ 241; PRDSMF
¶ 241. This complaint was assigned case number USA-2015-02051. Stip. ¶ 251;
PSAMF ¶ 293; DRPSAMF ¶ 293; DSMF ¶ 241; PRDSMF ¶ 241. On the complaint
form itself, when asked to identify the basis for her complaint, she checked the
following boxes: disability (physical), reprisal, and parental status. Stip. ¶ 251;
DSMF ¶ 241; PRDSMF ¶ 241. In the narrative section, she wrote that after she began
to reintegrate to work at the USAO in May 2015 following her second time
teleworking, she was “subjected to an extraordinary hostile environment as part of a
continuing pattern of retaliation.” Stip. ¶ 251; DSMF ¶ 241; PRDSMF ¶ 241. She
enumerated a number of matters, specifically alleging retaliation for prior EEO
activity, workplace hostility, and disability and parental status discrimination. Stip.
¶ 251; PSAMF ¶ 294; DRPSAMF ¶ 294; DSMF ¶ 241; PRDSMF ¶ 241. 263
The DOJ admits that on August 20, 2015, AUSA Márquez-Marín filed a second formal EEO
complaint but denies that she complied with the exhaustion requirement, which it asserts is a question
of law, not fact. DRPSAMF ¶ 293. The Court agrees with the DOJ and did not include the exhaustion
language in its statement of facts.
263
This citation is an example of how the summary judgment practice can send the Court down a
rabbit hole. The parties filed a joint stipulation, which contains paragraphs two hundred and fiftyone and two hundred and fifty-three. Paragraph two hundred and fifty-one refers to the contents of
262
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On September 15, 2015, the EOUSA’s EEO and Diversity Management staff
sent United States Attorney Rodríguez notice of AUSA Márquez-Marín’s second
formal EEO complaint. Stip. ¶ 252; DSMF ¶ 242; PRDSMF ¶ 242.
AUSA Márquez-Marín’s second EEO complaint and further states, “A true and correct copy of [AUSA]
Márquez[-Marín’s] formal EEO complaint is attached as Exhibit 113.” Stip. ¶ 251. Paragraph two
hundred and fifty-three refers to the EEO decision to accept the complaint and further states, “A true
and correct copy of the acceptance letter is attached at Exhibit 114.” Stip. ¶ 253. By stipulation, the
parties therefore place the actual complaint and the exact language of the issues that the EEO agreed
to pursue before the Court for purposes of the motion for summary judgment. The complaint alleges
retaliation for prior EEO activity, workplace hostility, and disability and parental status
discrimination. See Stip., Attach. 2, Ex. 113 (EEO Compl.). The EEO’s acceptance letter itemizes the
seven specific issues that the EEO agreed to investigate, which are the same issues outlined in the
complaint. See Stip., Attach. 2, Ex. 114.
In the DOJ’s paragraph two hundred and forty-one, the DOJ states the information reflected
above and also says that AUSA Márquez-Marín “enumerated a number of matters.” DSMF ¶ 241
(citing EEO Compl.). AUSA Márquez-Marín admits the DOJ’s paragraph two hundred and forty-one.
The DOJ also lists the seven issues that the EEO agreed to investigate in its paragraph two hundred
and forty-three, which AUSA Márquez-Marín admits. DSMF ¶ 243; PRDSMF ¶ 243.
Then, in AUSA Márquez-Marín’s additional paragraph two hundred and ninety-four, she
states:
In her second EEO complaint, [AUSA] Márquez[-Marín] questioned the heightened
supervision to which she was subjected by [EAUSA] Novas. [AUSA] Márquez[-Marín]
alleged retaliation for prior EEO activity, workplace hostility, as well as disability and
parental status discrimination. The EEO accepted issues had to do primarily with her
mistreatment by [EAUSA] Novas, who had interfered with her work, engaged in efforts
to demonstrate the deficiency thereof, and spread false rumors that her output was
substandard and that she, [AUSA] Márquez[-Marín], had violated policy, when she
had not. The issues accepted for investigation are set forth in Defendant’s Statement
of Fact, at paragraph 243.
PSAMF ¶ 294. Contrary to Local Rule 56(c), AUSA Márquez-Marín fails to provide any citation to the
record for the contents of her additional paragraph two hundred and ninety-four. PSAMF ¶ 294. In
its response, the DOJ admits that AUSA Márquez-Marín sets forth the issues the EEO accepted in its
paragraph two hundred and forty-three. DRPSAMF ¶ 294. But it denies the remainder of the
paragraph because it was not supported by a record citation. DRPSAMF ¶ 294.
The Court is faced with parsing the intersection among the Joint Stipulation, the DOJ’s
statements of fact, which AUSA Márquez-Marín admits, and AUSA Márquez-Marín’s own
unsupported statement of fact, which DOJ denies. The Court views this controversy as unnecessary
because there is abundant evidence elsewhere in the record that when AUSA Márquez-Marín
complained about interference with her work and derogatory accusations, she was in part referring to
EAUSA Novas. Nevertheless, the Court did not consider the objected-to portion of AUSA MárquezMarín’s additional paragraph two hundred and ninety-four because she failed to comply with Local
Rule 56(c) by omitting any record citation.
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On November 5, 2015, AUSA Márquez-Marín’s attorney was notified of the
DOJ’s acceptance of claims in case number USA-2015-02051. Stip. ¶ 253; DSMF
¶ 243; PRDSMF ¶ 243. Accepted for investigation was the question of whether
management officials at the USAO discriminated against AUSA Márquez-Marín
based on physical disability and parental status and retaliated against her for
engaging in EEO activity by subjecting her to a hostile work environment when they
allegedly (a) forced her to take annual leave without justification on or about June 1,
2015; (b) delayed the transfer she requested as a reasonable accommodation for her
disability from on or about April 2015 through July 13, 2015; (c) sent her hostile
emails criticizing her work on or about June 10, 2015; (d) accused her of failing to
comply with work requirements and policies on or about June 10, 2015; (e) made
unjustified allegations that she was assigned only weak cases on or about July 16,
2015; (f) analyzed her work record with the intention of finding deficiencies in her
work on or about July 16, 2015; and (g) interfered with her work and spread rumors
that the quality of her work was substandard. DSMF ¶ 243; PRDSMF ¶ 243. The
acceptance letter stated, “If you believe that we have not correctly identified the
issues, please notify [the author], in writing, within five (5) calendar days after you
receive this letter and specify why you believe we have not correctly identified the
issues.” Stip. ¶ 253; DSMF ¶ 243; PRDSMF ¶ 243. The DOJ issued a USAP entitled
“Procedures for Processing Formal EEO Complaints” effective on June 13, 2006, and
issued an updated version on August 30, 2013. Stip. ¶ 254. Neither AUSA Márquez-
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Marín nor Attorney Berkan provided a response in accordance with the instructions
given. DSMF ¶ 243; PRDSMF ¶ 243.
y.
The 2015-16 SLC Position
On November 10, 2015, Officer López sent to USAO employees a vacancy
announcement for the SLC position. Stip. ¶ 255; DSMF ¶ 244; PRDSMF ¶ 244. 264
Two days later, AUSA Márquez-Marín wrote to FAUSA Henwood to let him know
that she wanted to be considered. Stip. ¶ 255; DSMF ¶ 244; PRDSMF ¶ 244. Legal
assistant Migdalia Carballo called AUSA Márquez-Marín on January 13, 2016, to
arrange an interview for the position for the following week. Stip. ¶ 256; DSMF
¶ 245; PRDSMF ¶ 245. Afterwards, Ms. Carballo sent AUSA Márquez-Marín an
email invitation that indicated that the interviews would be conducted by FAUSA
Henwood, EAUSA Novas, and Civil Division Chief Ramírez. Stip. ¶ 256; DSMF
¶ 245; PRDSMF ¶ 245.
Two days after Ms. Carballo’s contact, AUSA Márquez-Marín wrote to FAUSA
Henwood. Stip. ¶ 257; DSMF ¶ 246; PRDMSF ¶ 246. She protested his inclusion, as
well as that of EAUSA Novas, on the interview panel, stating, “as everybody knows,
I filed EEO complaints for retaliation directly against you and [EAUSA Novas]. Also,
as recently as this week, I provided testimony against both of you.” Stip. ¶ 257; DSMF
¶ 246; PRDMSF ¶ 246. Since in AUSA Márquez-Marín’s opinion, FAUSA Henwood
and EAUSA Novas had “serious conflicts of interest,” AUSA Márquez-Marín asked
AUSA Márquez-Marín labeled this response paragraph two hundred and thirty-four. Given
the fact that it appears after paragraph two hundred and forty-three and before paragraph two
hundred and forty-five, the Court views it as her response to the DOJ’s paragraph two hundred and
forty-four and relabeled it accordingly.
264
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that they refrain from participating in her interview. Stip. ¶ 257; DSMF ¶ 246;
PRDMSF ¶ 246. FAUSA Henwood responded that management could not agree to
AUSA Márquez-Marín’s request, as the same committee had to conduct all of the
initial interviews for the SLC position. Stip. ¶ 258; DSMF ¶ 246; PRDMSF ¶ 246.
On January 20, 2016, the day of her interview, AUSA Márquez-Marín wrote to
FAUSA Henwood: “I am sick with the flu and will not be able to attend the interview
scheduled for today . . .. In any event, I am formally withdrawing my application for
the SLC position.” Stip. ¶ 259; DSMF ¶ 247; PRDMSF ¶ 247. José Ruiz, who stepped
down from the Criminal Division Chief position, was selected for the SLC position.
Stip. ¶ 260; DSMF ¶ 248; PRDMSF ¶ 248.
z.
The EOUSA’s
Evaluation
Evaluation
and
Review
Staff
During the last week of January 2016, the EOUSA’s Evaluation and Review
Staff (EARS) conducted an evaluation at the USAO. DSMF ¶ 249; PRDMSF ¶ 249.
EARS evaluations are conducted at each USAO usually every four to five years, and
the one-week reviews cover both litigation and administrative activities. DSMF
¶ 249; PRDSMF ¶ 249. The EARS teams are made up of administrative and attorney
staff from the EOUSA and other USAOs. DSMF ¶ 249; PRDSMF ¶ 249. During the
evaluation process, the EARS evaluators ask employees to complete extensive,
written questionnaires that allow employees to provide comments, both at the end of
each section and at the end of the questionnaires. DSMF ¶ 249; PRDSMF ¶ 249.
EARS evaluators also conduct interviews of USAO employees.
PRDSMF ¶ 249.
DSMF ¶ 249;
The team leader for the USAO’s EARS evaluation was David
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Gaouette. DSMF ¶ 250; PRDSMF ¶ 250. At the time, he was the EAUSA in the
District of Colorado on detail to the EOUSA as part of the EARS staff. DSMF ¶ 250;
PRDSMF ¶ 250.
Before the EARS evaluation, as part of the gathering of information about the
USAO, EAUSA Gaouette learned that AUSA Márquez-Marín had pending EEO
matters. DSMF ¶ 251; PRDSMF ¶ 251. To avoid any conflicts or ethical issues,
EAUSA Gaouette contacted Attorney Berkan to ask if it would be permissible for him
to speak with AUSA Márquez-Marín as part of the EARS process. DSMF ¶ 251;
PRDSMF ¶ 251.
Attorney Berkan granted permission.
DSMF ¶ 251; PRDSMF
¶ 251. AUSA Márquez-Marín appeared for a scheduled interview, but after keeping
AUSA Márquez-Marín waiting the whole morning, the EARS evaluators decided not
to interview AUSA Márquez-Marín. 265
DSMF ¶ 251; PRDSMF ¶ 251.
AUSA
Márquez-Marín nevertheless attempted to convince them to interview her. DSMF
¶ 251; PRDSMF ¶ 251. She said, “Let’s not talk about anything in connection to EEO.
I want to become a whistleblower and I want to provide you information about
mismanagement.” DSMF ¶ 251; PRDSMF ¶ 251. The evaluators, however, persisted
in their refusal. DSMF ¶ 251; PRDSMF ¶ 251. AUSA Márquez-Marín concluded
that the EARS team “didn’t want to hear any reports of mismanagement, corruption,
or any other sort of information that [she] had against the U[nited States] Attorney
or the upper management.” DSMF ¶ 251; PRDSMF ¶ 251.
AUSA Márquez-Marín interposes a qualified response to DOJ’s paragraph two hundred and
fifty-one, adding facts to provide context. PRDSMF ¶ 251. The Court incorporated AUSA MárquezMarín’s facts in accordance with its obligation to view contested facts in the light most favorable to
her.
265
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aa.
The DOJ’s Decision on AUSA Márquez-Marín’s First
EEO Complaint
On February 11, 2016, the DOJ’s Complaint Adjudication Office (CAO) issued
a “Final Decision” on AUSA Márquez-Marín’s first EEO complaint, finding that the
record failed to demonstrate that she had been subject to discrimination or
retaliation. 266 DSMF ¶ 252; PRDSMF ¶ 252.
bb.
2016 Developments
On February 17, 2016, Officer López sent an email to USAO supervisors in
which she stated that she was distributing the 2015 performance work plans so that
the supervisors could complete their evaluations of AUSAs. Stip. ¶ 261; DSMF ¶ 257;
PRDSMF ¶ 257. Included in her email was a reminder about the relevant rating
criteria. Stip. ¶ 261; DSMF ¶ 257; PRDSMF ¶ 257. AUSA Márquez-Marín was due
to receive an evaluation from the USAO’s Appellate Division given her work on
appeals during 2015. Stip. ¶ 262; DSMF ¶ 258; PRDSMF ¶ 258. Chief Pérez was the
rating official, and, despite the fact she had supervised AUSA Márquez-Marín’s work
for a short interval, EAUSA Novas was the reviewing official. 267 Stip. ¶ 262; PSAMF
¶ 295; DRPSAMF ¶ 295; DSMF ¶ 258; PRDSMF ¶ 258.
AUSA Márquez-Marín objects to any reference to the CAO’s decision and especially to any
reference to its findings. PRDSMF ¶¶ 252-56. In general, the Court agrees with AUSA MárquezMarín that the DOJ’s findings are not admissible in this proceeding because she is entitled to a de
novo review. The Court included the fact that the DOJ internally denied her first EEO complaint to
set forth the full history of the case. The Court struck the remainder of the DOJ’s paragraphs two
hundred and fifty-two through two hundred and fifty-six.
267
AUSA Márquez-Marín admits the DOJ’s paragraph two hundred and fifty-eight but notes that,
as of February 2016, EAUSA Novas had supervised her work for a short period. PRDSMF ¶ 258. In
accordance with its obligation to view contested facts in the light most favorable to AUSA MárquezMarín, the Court included this additional fact in the DOJ’s paragraph two hundred and fifty-eight.
266
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When Chief Pérez initially completed his evaluation for AUSA MárquezMarín, he gave her an overall “outstanding” rating, with “outstanding” ratings on
three individual elements (“Develops Appellate Litigation Strategy,” “Reviewing and
Advising Others,” and “Productivity and Effectiveness in Dealing with Courts,
Clients, and Others”) and “successful” ratings on two individual elements (“Legal
Research” and “Presenting Oral Argument”). DSMF ¶ 259; PRDSMF ¶ 259.
EAUSA Novas, however, stated that she could not support an “outstanding”
rating for AUSA Márquez-Marín in the “Productivity and Effectiveness in Dealing
with Courts, Clients, and Others” element. 268 DSMF ¶ 260; PRDSMF ¶ 260. In fact,
she even questioned whether AUSA Márquez-Marín deserved a “successful” rating
for that element. DSMF ¶ 260; PRDSMF ¶ 260. EASUA Novas was not concerned
with AUSA Márquez-Marín’s productivity or her relationships with defense counsel
and the judges or court personnel. DSMF ¶ 260; PRDSMF ¶ 260. EAUSA Novas’
concern centered on AUSA Márquez-Marín’s effectiveness in dealing with others,
specifically colleagues within the office. DSMF ¶ 260; PRDSMF ¶ 260. In particular,
she had in mind matters such as (1) AUSA Márquez-Marín’s ineffectiveness in
dealing with FAUSA Henwood in the Santiago-Lugo case when he had sent her
emails trying to help her with her research and (2) her interactions with AUSA
Cannon in the Manso-Cepeda case. DSMF ¶ 260; PRDSMF ¶ 260. To EAUSA Novas,
AUSA Márquez-Marín admits the DOJ’s paragraph two hundred and sixty (mislabeling it
paragraph two hundred and fifty-nine, which the Court corrected) but adds facts to clarify the
background. PRDSMF ¶ 260. In accordance with its obligation to view contested facts in the light
most favorable to AUSA Márquez-Marín, the Court added AUSA Márquez-Marín’s additional facts to
its recitation of the facts for context.
268
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“outstanding” meant that one exceeded in an exceptional way at a particular element.
DSMF ¶ 260; PRDSMF ¶ 260. In her mind, AUSA Márquez-Marín had not met that
standard.
DSMF ¶ 260; PRDSMF ¶ 260.
After his evaluation, EAUSA Novas
insisted that Chief Pérez lower his initial evaluation of AUSA Márquez-Marín. 269
PSAMF ¶ 295; DRPSAMF ¶ 295. This time he acquiesced. PSAMF ¶ 295; DRPSAMF
¶ 295; DSMF ¶ 261; PRDSMF ¶ 261.
On March 8, 2016, AUSA Márquez-Marín received her evaluation for her 2015
work on appeals. Stip. ¶ 263; DSMF ¶ 261; PRDSMF ¶ 261. Her overall rating was
“successful,” and she received a “successful” rating in three of the five categories and
an “outstanding” rating in two of five. DSMF ¶ 261; PRDSMF ¶ 261. One of the
“successful” ratings was for the “Productivity and Effectiveness in Dealing with
Courts, Clients, and Others” element. DSMF ¶ 261; PRDSMF ¶ 261. The white out
was visible on the evaluation showing the change from “outstanding” to “successful”
for this element, and this change had a concrete effect on AUSA Márquez-Marín’s
salary. 270 DSMF ¶ 261; PRDSMF ¶ 261. Chief Pérez wrote the narratives in the
evaluation. DSMF ¶ 261; PRDSMF ¶ 261.
The DOJ interposes a qualified response, seeking to add detail about EAUSA Novas’ actions.
DRPSAMF ¶ 295. The Court declines to accept the DOJ’s qualified response as it does not negate
AUSA Márquez-Marín’s additional paragraph two hundred and ninety-five.
The DOJ denies AUSA Márquez-Marín’s additional paragraph two hundred and ninety-six
because AUSA Márquez-Marín fails to make a record citation. DRPSAMF ¶ 296. The Court agrees
with the DOJ and did not include the paragraph.
270
AUSA Márquez-Marín admits the DOJ’s paragraph two hundred and sixty-one but adds facts
to clarify the impact this change had on her salary. PRDSMF ¶ 261. In accordance with its obligation
to view contested facts in the light most favorable to AUSA Márquez-Marín, the Court added AUSA
Márquez-Marín’s additional facts to its recitation of the facts for context.
269
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On April 13, 2016, AUSA Márquez-Marín filed a complaint in this Court.
DSMF ¶ 263; PRDSMF ¶ 263. Twelve days later on April 25, 2016, United States
Attorney Rodríguez gave AUSA Márquez-Marín a one-time cash award of $2000.
Stip. ¶ 264; DSMF ¶ 264; PRDSMF ¶ 264. This award was given during the APR
process in lieu of a salary increase, since AUSA Márquez-Marín had already reached
the maximum salary allowable for an employee who had received a “successful”
rating, as she had on her 2015 evaluation. Stip. 264; DSMF ¶ 264; PRDSMF ¶ 264.
United States Attorney Rodríguez was not required to give AUSA Márquez-Marín
any such reward. 271 DSMF ¶ 264; PRDSMF ¶ 264. In approximately early- to mid2016, United States Attorney Rodríguez gave AUSA Márquez-Marín a forty-hour
time-off award, an award routinely given to every AUSA in the USAO. 272 DSMF
¶ 266; PRDSMF ¶ 266. The effective date of the award was July 13, 2016. DSMF
¶ 266; PRDSMF ¶ 266.
On May 19, 2016, after the filing of this lawsuit, the DOJ dismissed AUSA
Márquez-Marín’s formal EEO complaint in case number USA-2015-0251. 273 DSMF
AUSA Márquez-Marín admits the DOJ’s paragraph two hundred and sixty-four but denies the
alleged inference that management was not engaged in retaliation against AUSA Márquez-Marín
because of this fact. PRDSMF ¶ 264. The Court does not view the paragraph as making the inference
AUSA Márquez-Marín suggests and thus rejects the denial.
272
AUSA Márquez-Marín admits the DOJ’s paragraph two hundred and sixty-six but adds that
a forty-hour time-off award is routinely given to each AUSA in the office. PRDSMF ¶ 266. In
accordance with its obligation to view contested facts in the light most favorable to AUSA MárquezMarín, the Court added AUSA Márquez-Marín’s additional fact. AUSA Márquez-Marín also says this
paragraph is immaterial. PRDSMF ¶ 266. The Court disagrees.
273
AUSA Márquez-Marín admits the DOJ’s paragraph two hundred and sixty-five but states that
the dismissal of her EEO complaint is immaterial to any fact in controversy. PRDSMF ¶ 265. In
general, the Court agrees with AUSA Márquez-Marín that the DOJ’s findings are not admissible in
this proceeding because she is entitled to a de novo review. To set forth the full history of the case, the
Court included the fact that the DOJ dismissed her second EEO complaint and that this was a final
decision. The Court struck the rest of the paragraph.
271
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¶ 265; PRDSMF ¶ 265. This dismissal constituted the DOJ’s final decision on AUSA
Márquez-Marín’s formal EEO complaint in case number USA-2015-0251. DSMF
¶ 265; PRDSMF ¶ 265.
cc.
United States Attorney Rosa Emilia Rodríguez’s
Decision Not to Reappoint Appellate Division Chief
Nelson Pérez on April 8, 2016
In April 2016, Chief Pérez’s four-year term as Appellate Division Chief was
over and on April 8, 2016, United States Attorney Rodríguez informed him that she
had decided not to reappoint him to the position. 274 PSAMF ¶ 297; DRPSAMF ¶ 297;
DSMF ¶ 262; PRDSMF ¶ 262. United States Attorney Rodríguez gave no reason for
the decision. PSAMF ¶ 297; DRPSAMF ¶ 297. Chief Pérez believed that his nonreappointment was related to the fact that he provided testimony in AUSA MárquezMarín’s EEO cases. PSAMF ¶ 298; DRPSAMF ¶ 298. In February 2016, barely two
months before his non-reappointment, Chief Pérez had given testimony in AUSA
Márquez-Marín’s EEO case. PSAMF ¶ 299; DRPSAMF ¶ 299. On February 1, 2016,
the day before he was scheduled to testify in the investigation into AUSA MárquezMarín’s EEO complaint, Chief Pérez was called into United States Attorney
Rodríguez’s office. PSAMF ¶ 300; DRPSAMF ¶ 300. Present were the two people
whom Chief Pérez characterized as United States Attorney Rodríguez’s “two main
managers”: EAUSA Novas and FAUSA Henwood. PSAMF ¶ 300; DRPSAMF ¶ 300.
United States Attorney Rodríguez testified, “[I have] people [I am] close to in the
The DOJ objects to the reference in AUSA Márquez-Marín’s additional paragraph two hundred
and ninety-seven that Chief Pérez had been a person in charge of appeals for twenty years before he
was not reappointed on the ground that this asserted fact is not supported by the cited record.
DRPSAMF ¶ 297. The Court agrees and did not include this asserted fact.
274
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office that I trust; that’s [FAUSA Henwood] and [EAUSA Novas], I trust them both.
They’re my left and my right hand . . .. [EAUSA Novas] has been with me from the
beginning, so yes, I think in that sense she’s close, but we don’t socialize. I don’t
socialize.” 275 PSAMF ¶ 301; DRPSAMF ¶ 301.
United States Attorney Rodríguez, who knew that Chief Pérez would be
testifying the next day, emphasized to him that he was “part of management.” 276
PSAMF ¶ 302; DRPSAMF ¶ 302. Chief Pérez thought the message was clear and he
understood that by telling him he was “part of management,” United States Attorney
Rodríguez was inducing him to testify in a particular way and not be truthful. 277
PSAMF ¶ 303; DRPSAMF ¶ 303.
In Chief Pérez’s view, the highest-level law
enforcement official in Puerto Rico was telling him not to be truthful. 278 PSAMF
¶ 304; DRPSAMF ¶ 304. He understood her to be saying that as part of management,
The DOJ denies AUSA Márquez-Marín’s characterization of this comment in which she states
that United States Attorney Rodríguez made it clear that these two individuals were her “principal
loyalists.” DRPSAMF ¶ 301. The Court agrees that the quoted language is the best indication of
United States Attorney Rodríguez’s meaning and struck the characterization.
276
The DOJ admits that United States Attorney Rodríguez told Chief Pérez that he was part of
management the day before the hearing but interposes a qualified response to explain the statement.
DRPSAMF ¶ 302. The Court declines to accept the DOJ’s qualification because it does not contradict
the statement.
Further, the DOJ denies that United States Attorney Rodríguez knew that Chief Pérez was
scheduled to testify the next day in AUSA Márquez-Marín’s EEO case. DRPSAMF ¶ 302. Chief Pérez
testified that United States Attorney Rodríguez “absolutely” knew that he was about to testify and he
interpreted her comment as her inducement for him to testify in a particular way. See PSAMF, Attach.
2, Ex. I: Excerpts from the Dep. Testimony of Nelson Pérez, April 25, 2017 at 197:04-23. This is
sufficient to include the statement because the Court is required to view contested evidence in the
light most favorable to AUSA Márquez-Marín.
277
The DOJ denies AUSA Márquez-Marín’s additional paragraph three hundred and three on
essentially the same ground as it denies paragraph three hundred and two. DRPSAMF ¶ 303. The
Court’s ruling is the same.
278
The DOJ denies AUSA Márquez-Marín’s additional paragraph three hundred and four on
essentially the same ground as it denies paragraphs three hundred and two and three hundred and
three. DRPSAMF ¶ 304. The Court’s ruling is the same. The Court altered the paragraph slightly to
clarify that these statements are based on Chief Pérez’s understanding.
275
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he had to protect her and he could not say things contrary to the office. PSAMF ¶ 304;
DRPSAMF ¶ 304.
dd.
Developments from August 2016 Onward
On August 2, 2016, AUSA Márquez-Marín sent José Capó, who had been
promoted to Chief of the Criminal Division, a motion in an environmental case.
DSMF ¶ 267; PRDSMF ¶ 267. Chief Capó referred the matter to Myriam Fernández,
then a SUSA and head of the Financial Fraud and Corruption Unit (FFCU), the unit
that oversees general crimes such as environmental crimes. DSMF ¶ 267; PRDSMF
¶ 267. Chief Capó later said that he made the referral to SUSA Myriam Fernández
because he was in trial preparation and he authorized her to sign the proposed 5K
motion on his behalf. 279 DSMF ¶ 267; PRDSMF ¶ 267. Chief Capó also asked SUSA
Myriam Fernández to contact AUSA Stewart in Washington, D.C., to coordinate
whatever was needed despite the fact that AUSA Márquez-Marín had been handling
the case for a long time. DSMF ¶ 267; PRDSMF ¶ 267. Chief Capó did not copy
AUSA Márquez-Marín on his referral email to SUSA Myriam Fernández. DSMF
¶ 267; PRDSMF ¶ 267.
SUSA Myriam Fernández in turn spoke with AUSA
Márquez-Marín. DSMF ¶ 267; PRDSMF ¶ 267.
On August 18, 2016, AUSA Márquez-Marín emailed Officer López and Civil
Division Chief Ramírez and asked to telework two hours a day to attend physical
therapy. Stip. ¶ 265; DSMF ¶ 268; PRDSMF ¶ 268. In her email, she stated that she
In her qualified response to DOJ’s paragraph two hundred and sixty-seven, AUSA MárquezMarín adds information clarifying the background for Chief Capó’s referral to SUSA Myriam
Fernández. PRDSMF ¶ 267. In accordance with its obligation to view contested facts in the light most
favorable to AUSA Márquez-Marín, the Court included those additional facts.
279
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had been informed that day that OWCP had approved the physical therapies
prescribed by her physician, Dr. Santiago. Stip. ¶ 265; DSMF ¶ 268; PRDSMF ¶ 268.
She also stated that OWCP had given her until September 16 to take twelve
therapies, and she had no sick leave. Stip. ¶ 265; DSMF ¶ 268; PRDSMF ¶ 268. Chief
Ramírez brought AUSA Márquez-Marín’s request to the attention of Jacqueline
Novas, who was serving as Acting United States Attorney. Stip. ¶ 265; DSMF ¶ 268;
PRDSMF ¶ 268. Acting United States Attorney Novas approved the request the same
day. Stip. ¶ 265; DSMF ¶ 268; PRDSMF ¶ 268.
ee.
SUSA Myriam Fernández and the Environmental
Protection Agency
In October 2016, AUSA Márquez-Marín was invited to meet the new head of
the Environmental Protection Agency (EPA) in Puerto Rico and the Special Agent in
Charge from EPA Headquarters. Stip. ¶ 266; DSMF ¶ 269; PRDSMF ¶ 269. When
AUSA Márquez-Marín arrived at the EPA, she was asked by Special Agent in Charge
Vernesa Jones-Allen if she was still in charge of environmental crimes coordination
at the USAO because a meeting in the New York metropolitan area was scheduled
shortly thereafter and someone else was going to represent the USAO. Stip. ¶ 267;
DSMF ¶ 270; PRDSMF ¶ 270. AUSA Márquez-Marín asked Special Agent JonesAllen who was going to represent the Puerto Rico USAO and Special Agent JonesAllen gave a physical description of SUSA Myriam Fernández.
DSMF ¶ 271;
PRDSMF ¶ 271. AUSA Márquez-Marín thought that Special Agent Jones-Allen
might be referring to SUSA Myriam Fernández and wanted to confirm it was her.
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DSMF ¶ 271; PRDSMF ¶ 271. AUSA Márquez-Marín did not follow up with SUSA
Myriam Fernández at the time. DSMF ¶ 271; PRDSMF ¶ 271.
United States Attorney Rodríguez had in fact decided to send SUSA Myriam
Fernández to the EPA meeting in the New York area. DSMF ¶ 272; PRDSMF ¶ 272.
The invitation from the EPA had been directed to United States Attorney Rodríguez
and she later testified that since she could not attend herself and other United States
Attorneys were going to be present, she felt it was important that a management
officer from the Puerto Rico USAO attend in her place. 280 DSMF ¶ 272; PRDSMF
¶ 272. United States Attorney Rodríguez chose SUSA Myriam Fernández, who was,
at the time of the meeting, the supervisor of the USAO’s FFCU. Stip. ¶ 268; DSMF
¶ 272; PRDSMF ¶ 272. On October 6, 2016, SUSA Myriam Fernández attended the
EPA meeting in the New York metropolitan area. Stip. ¶ 268; DSMF ¶ 273; PRDSMF
¶ 273. While there, SUSA Myriam Fernández affirmed before the participants that
AUSA Márquez-Marín was the Puerto Rico USAO’s environmental crimes
coordinator. 281 DSMF ¶ 273; PRDSMF ¶ 273.
SUSA Myriam Fernández testified that she intended to talk with AUSA
Márquez-Marín about the EPA meeting upon her return from New York. 282 DSMF
AUSA Márquez-Marín interposes a qualified response, emphasizing that this asserted fact is
based on the testimony of United States Attorney Rodríguez. PRDSMF ¶ 272. The Court amended
the paragraph to reflect that this is what United States Attorney Rodríguez testified.
281
AUSA Márquez-Marín interposes a qualified response to the DOJ’s paragraph two hundred
and seventy-three, stating that it is unclear whether SUSA Myriam Fernández’s affirmation was
spontaneous or in response to questioning. PRDSMF ¶ 273. The Court rejects this qualification
because it does not add new facts and does not contradict the paragraph.
282
AUSA Márquez-Marín is skeptical of the credibility of SUSA Myriam Fernández’s explanation
of this event. PRDSMF ¶¶ 274-76. In accordance with its obligation to view contested facts in the
light most favorable to AUSA Márquez-Marín, the Court reframed the DOJ’s paragraph two hundred
and seventy-four to reflect that this description is what SUSA Myriam Fernández declared under oath.
280
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¶ 274; PRDSMF ¶ 274. However, she said, immediately upon her return, she became
consumed with other matters, namely investigations and cases that she was handling
and that her supervisees in the FFCU were handling. DSMF ¶ 274; PRDSMF ¶ 274.
Accordingly, she said, she did not have a chance in the following weeks to discuss the
EPA meeting with AUSA Márquez-Marín. DSMF ¶ 274; PRDSMF ¶ 274.
Then, from approximately mid-October 2016 through mid-November 2016,
SUSA Myriam Fernández received several communications from EPA officials
(including Special Agent Jones-Allen and EPA counsel Hector Vélez) seeking to
discuss the USAO’s work with the EPA. DSMF ¶ 274; PRDSMF ¶ 274. SUSA
Myriam Fernández testified that, having received these contacts, she wanted to talk
with Special Agent Jones-Allen and EPA counsel Vélez to hear what they had to say
before reaching out to AUSA Márquez-Marín to inform her of these contacts, to
debrief about the October EPA meeting in New York, and to coordinate the USAO’s
work with the EPA going forward. DSMF ¶ 274; PRDSMF ¶ 274.
SUSA Myriam Fernández testified that she spoke with Special Agent JonesAllen and EPA counsel Vélez in approximately mid-November 2016; during these
communications, the EPA officials asked to set up meetings and indicated that they
were desirous of additional resources for EPA cases. DSMF ¶ 275; PRDSMF ¶ 275.
SUSA Myriam Fernández said she told them that she would see what she could do.
DSMF ¶ 275; PRDSMF 275.
SUSA Myriam Fernández testified that she then
mentioned this issue to several management officials, including United States
Attorney Rodríguez, FAUSA Henwood, and Chief Ramírez. DSMF ¶ 275; PRDSMF
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275. SUSA Myriam Fernández further testified that she was instructed to go talk
with AUSA Márquez-Marín since she was the USAO’s environmental crimes
coordinator. DSMF ¶ 275; PRDSMF 275.
On November 18, 2016, SUSA Myriam Fernández sent AUSA Márquez-Marín
a litigation hold notice regarding an EEO complaint that had been filed by AUSA
Cordero. Stip. ¶ 269; DSMF ¶ 276; PRDSMF ¶ 276. SUSA Myriam Fernández was
the Puerto Rico USAO’s litigation hold coordinator for this matter. DSMF ¶ 276;
PRDSMF ¶ 276. SUSA Myriam Fernández testified that she did not deem this email
an appropriate time to discuss environmental matters with AUSA Márquez-Marín as
the litigation hold notice related to a completely different matter. DSMF ¶ 276;
PRDSMF ¶ 276. Having received direction to talk with AUSA Márquez-Marín about
environmental matters and wanting to ensure that she could get more involved in
EPA cases in the future (she had not been involved in many environmental cases
since becoming head of the FFCU in February 2016), SUSA Myriam Fernández
approached AUSA Márquez-Marín on November 29, 2016. DSMF ¶ 277; PRDSMF
¶ 277. AUSA Márquez-Marín, however, believed that she was being de facto removed
from the environmental crimes coordinator position. DSMF ¶ 277; PRDSMF ¶ 277.
Following this encounter on November 29, 2016, AUSA Márquez-Marín
emailed United States Attorney Rodríguez at 12:04 p.m. the same day. Stip. ¶ 270;
DSMF ¶ 278; PRDSMF ¶ 278.
AUSA Márquez-Marín noted the EPA officials’
questioning her non-participation at the meeting in the New York area, as well as
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SUSA Myriam Fernández’s approach earlier that day. DSMF ¶ 278; PRDSMF ¶ 278.
Summing up, AUSA Márquez-Marín wrote:
I consider this another instance of reprisal of the kind I have been
enduring for years now. The timing is also curious especially now that
my EEO case is at the District level and Discovery is ongoing. I also
have been identified as a witness of three other EEO cases in this Office.
DSMF ¶ 278; PRDSSMF ¶ 278.
In an email at 12:41 p.m. on November 29, 2016, to her supervisor, Chief Capó,
SUSA Myriam Fernández described the encounter she had with AUSA MárquezMarín that day. Stip. ¶ 271; DSMF ¶ 279; PRDSMF ¶ 279. Later that day, at 3:52
p.m., FAUSA Henwood responded to AUSA Márquez-Marín on behalf of United
States Attorney Rodríguez. Stip. ¶ 272; DSMF ¶ 280; PRDSMF ¶ 280. He noted that
as environmental crimes coordinator, AUSA Márquez-Marín was “an important
member of [the USAO’s] team on those investigations and matters.” DSMF ¶ 280;
PRDSMF ¶ 280. He also explained that SUSA Myriam Fernández, as head of the
FFCU covering general crimes, was also expected to be up to date on all
environmental crime matters handled by the USAO. DSMF ¶ 280; PRDSMF ¶ 280.
He stated that it would be incumbent on AUSA Márquez-Marín, SUSA Myriam
Fernández, and Civil Division Chief Ramírez to communicate regarding any civil or
criminal EPA matters AUSA Márquez-Marín was handling and wished her continued
success as the USAO’s environmental crimes coordinator. DSMF ¶ 280; PRDSMF
¶ 280.
AUSA Márquez-Marín replied to FAUSA Henwood the same day, November
29, 2016, at 4:47 p.m., also sending the message to United States Attorney Rodríguez,
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Chief Ramírez, Chief Capó, and SUSA Myriam Fernández. Stip. ¶ 273; DSMF ¶ 281;
PRDSMF ¶ 281. In her reply, AUSA Márquez-Marín mentioned that a few days
earlier, SUSA Myriam Fernández had sent her the litigation hold notice for AUSA
Cordero’s EEO case. DSMF ¶ 281; PRDSMF ¶ 281. She concluded, “It is clear that
you and all other managers copied in this message are involved in the hostile work
environment that I have denounced with EEO and the District Court. The timing of
this incident is no coincidence and I will report it as what it is, more retaliation.”
DSMF ¶ 281; PRDSMF ¶ 281.
II.
THE COMPLAINT
AUSA Márquez-Marín’s Complaint contains two counts: (1) Count One is a
claim for illegal retaliation and hostile work environment under Title VII of the Civil
Rights Act of 1964; and (2) Count Two is a claim for reasonable accommodation and
disability-based discrimination under the Rehabilitation Act of 1973. Compl. ¶¶ 12.113.8.
III.
THE PARTIES’ POSITIONS
A.
The DOJ’s Position
In its memorandum, the DOJ collapses this extensive record into twenty-three
specific allegations of discriminatory and retaliatory harassment:
(1)
the delay in AUSA Márquez-Marín’s return to work;
(2)
the congratulatory email;
(3)
her assignment to death penalty cases;
(4)
the Canales assignment;
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(5)
her removal from the Loiza and Lloréns Torres investigations;
(6)
her required attendance at the motion writing seminar;
(7)
her compensation;
(8)
not being informed about the option of telework during 2012 though
early 2014;
(9)
an increase in her workload;
(10)
being charged sick leave when teleworking;
(11)
Chief Capó’s supposed refusal to certify her time;
(12)
her 2013 productivity rating (including the method for analyzing her
productivity);
(13)
the letter of admonishment;
(14)
the loss of her cellphone and management’s plan to review videos;
(15)
efforts to lower her 2014 and 2015 evaluations;
(16)
a delay in her transfer to the Civil Division;
(17)
the February 2015 Guzman meeting;
(18)
the receipt of hostile emails and unjustified criticism after her return to
the office in May 2015 (relating to comments about the nature and quality of
her work, the June 10 meeting, and the Santiago-Lugo and Manso-Cepeda
appeals);
(19)
EARS’ decision not to interview her;
(20)
Chief Pérez’s non-reappointment;
(21)
management’s failure to consider her for supervisory positions;
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(22)
attempts to remove her as environmental crimes coordinator; and
(23)
a climate of fear.
Def.’s Mot. at 27. 283 The DOJ says that although AUSA Márquez-Marín contends
that all twenty-three of these matters constitute retaliatory harassment, she
acknowledges that only items 8-12 and 15-18 constitute disability-based harassment.
Id.
The DOJ first states that the Court should not consider issues 1-2, 3 (in part),
4-6, 7 (in part), and 8-9 in assessing AUSA Márquez-Marín’s claims. Id. at 28. The
DOJ notes that AUSA Márquez-Marín signed a settlement agreement in July 2010
that released claims related to her prior lawsuit and it contends that the settlement
agreement “bars liability for claims relating to issue 1 above, as well as for [AUSA]
Márquez[-Marín]’s claim that the USAO improperly set her salary upon
reinstatement (part issue 7).” Id. Second, the DOJ says that AUSA Márquez-Marín
conceded at her deposition that she was “not seeking damages for events occurring
before January 1, 2010.” Id. Third, DOJ says that AUSA Márquez-Marín failed to
exhaust her administrative remedies as to issues 1-2, 5-6, and 8-9. Id. Once these
matters are eliminated from consideration, the DOJ argues, the uncontested facts
demonstrate that she is unable to show she was subject to discrimination or
retaliation. Id. at 29-30.
The DOJ runs through the familiar McDonnell Douglas burden-shifting
analytic process from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),
The pagination of the DOJ’s motion and the DOJ’s reply differ from the ECF pagination. For
uniformity, the Court refers to the ECF pagination.
283
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for evaluating AUSA Márquez-Marín’s claims.
Def.’s Mot. at 30-41.
The DOJ
concludes that no reasonable factfinder could conclude that the alleged harassment
was causally related to AUSA Márquez-Marín’s disabilities or her protected activity.
Id. at 41-43.
Finally, it argues that the Faragher/Ellerth affirmative defense
precludes liability. Id. at 43-45 (citing Faragher v. City of Boca Raton, 524 U.S. 775,
807-08 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)).
B.
AUSA Carmen Márquez-Marín’s Opposition
In AUSA Márquez-Marín’s response, she emphasizes that the “focus of this
lawsuit is the period from 2014 to 2016, some 6 to 8 years after [AUSA] Márquez[Marín] was reinstated by order of Visiting Judge . . . McAuliffe . . ..” Pl.’s Opp’n at 2.
Pointing to specific instances of allegedly retaliatory conduct by USAO management,
AUSA Márquez-Marín argues that her case is about intent and context. Id. at 2-4.
She contends that before 2014 there had been an “uneasy peace” between
management and herself, but after it became known that she was assisting Specialist
Reyes in his retaliation claim, “things took a sharp turn . . ..” Id. at 9. Although
AUSA Márquez-Marín concedes that events from 2004, when she was dismissed, to
late 2013, when she was seen advising Specialist Reyes, would not be actionable, she
argues that they provide essential background to the events from late 2013 onward,
which she says are actionable. Id. at 11-15. She then reviews the evidence of events
from 2004 to the fall of 2013, which she says reflect the USAO’s ongoing hostility
toward her after she returned to work on March 16, 2008. Id. at 15-32. She then
details her factual allegations from 2014 onward, which she claims reflect the USAO’s
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hostile and discriminatory actions against her. Id. at 32-58. Finally, she disagrees
with the DOJ that the Faragher/Ellerth affirmative defense bars her claims, arguing
that the DOJ cannot demonstrate the second prong of the Faragher/Ellerth test—
that she unreasonably failed to take advantage of the USAO’s complaint procedure.
Id. at 60.
C.
The DOJ’s Reply
In its reply, the DOJ points out that AUSA Márquez-Marín concedes that all
events occurring before those encompassed by her July 2014 EEO formal complaint
are background evidence and should not be considered for establishing the DOJ’s
liability. Def.’s Reply at 2. The DOJ disputes AUSA Márquez-Marín’s accusation
that United States Attorney Rodríguez and her inner circle of advisers acted against
her after her return to work. Id. at 3-5. The DOJ also says that the evidence does
not substantiate a claim of severe or pervasive harassment. Id. at 5-7. It then
contests AUSA Márquez-Marín’s interpretation of a series of events, including her
compensation claim, the treatment of her sick leave, Chief Capó’s failure to certify
her time, the letter of admonishment, the USAO’s annual evaluations, the delay in
implementing the reasonable accommodation, her work on specific cases, the EARS
evaluation, the non-reappointment of Chief Pérez, and her role as environmental
coordinator. Id. at 8-15. The DOJ submits that it has a legitimate explanation for
each of these matters and that AUSA Márquez-Marín fails to carry her resulting
burden of proof to allow the case to go to a jury. Id. at 15-16. Finally, the DOJ
reiterates its position on the Faragher/Ellerth defense. Id. at 17-18.
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D.
AUSA Carmen Márquez-Marín’s Sur-Response
In her sur-response, AUSA Márquez-Marín disputes a number of the DOJ’s
direct challenges to her handling of the motion for summary judgment, including its
accusation that she failed to disclose key documents, violated Federal Rule of Civil
Procedure 26, engaged in an egregious violation regarding the theory of the case, and
attempted an end-run around the exhaustion requirement. Pl.’s Sur-resp. at 1-8.
AUSA Márquez-Marín also objects to the DOJ’s introduction of new sworn
declarations. Id. at 8-9.
E.
The DOJ’s Sur-Reply
In its sur-reply, the DOJ describes as unavailing AUSA Márquez-Marín’s
argument that she was entitled to use of exhibits from the prior trial without
providing Rule 26 disclosures concerning her intention to use those exhibits. Def.’s
Sur-reply at 1-3. The DOJ also rebuts AUSA Márquez-Marín’s arguments about her
use of pre-2014 events. Id. at 3-4. Furthermore, the DOJ says that AUSA MárquezMarín “misses the point” about its argument concerning exhaustion of remedies. Id.
at 4-6. Finally, the DOJ disagrees with AUSA Márquez-Marín about the significance
of its supplemental declarations. Id. at 6-7.
IV.
LEGAL STANDARD
A grant of summary judgment is proper when “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). “Genuine issues of fact are those that a
factfinder could resolve in favor of the nonmovant, while material facts are those
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whose ‘existence or nonexistence has the potential to change the outcome of the suit.’”
Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting
Tropigas de PR, Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56
(1st Cir. 2011)).
Once the moving party “has made a preliminary showing that there is no
genuine issue of material fact, the nonmovant must ‘produce specific facts, in suitable
evidentiary form, to . . . establish the presence of a trialworthy issue.’” McCarthy v.
City of Newburyport, 252 Fed. App’x 328, 332 (1st Cir. 2007) (alteration in original)
(quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)).
The nonmoving party must show “‘enough competent evidence’ to enable a factfinder
to decide in its favor on the disputed claims.” Carroll v. Xerox Corp., 294 F.3d 231,
237 (1st Cir. 2002) (quoting Goldman v. First Nat’l Bank of Bos., 985 F.2d 1113, 1116
(1st Cir. 1993)). The Court then “views the facts and draws all reasonable inferences
in favor of the nonmoving party,” Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632
F.3d 31, 35 (1st Cir. 2011), while disregarding “[c]onclusory allegations, improbable
inferences, acrimonious invective, or rank speculation.” Mancini v. City of Providence
ex rel. Lombardi, 909 F.3d 32, 38 (1st Cir. 2018) (quoting Ahern v. Shinseki, 629 F.3d
49, 54 (1st Cir. 2010)).
The United States Supreme Court’s opinion in McDonnell Douglas, 411 U.S.
792, “established an allocation of the burden of production and an order for the
presentation of proof in Title VII discriminatory-treatment cases.” St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 506 (1993). The First Circuit uses this burden-shifting
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framework in cases in which the plaintiff does not produce direct evidence of
discrimination. See, e.g., Flood v. Bank of Am. Corp., 780 F.3d 1, 8 (1st Cir. 2015);
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823-24 (1st Cir. 1991). The McDonnell
Douglas burden-shifting framework has three steps:
Under this framework, the employee must present prima facie evidence
of unlawful employment discrimination. The burden of production then
shifts to the employer, who must rebut with a legitimate,
nondiscriminatory reason for the adverse employment action identified
in the employee's prima facie case. Finally, the burden shifts back to
the employee, who must produce evidence that the employer's
explanation is pretextual.
Flood, 780 F.3d at 8 (citing Fuhrmann v. Staples Office Superstore E. Inc, 2012 ME
135, ¶ 13, 58 A.3d 1083, 1089). To establish a prima facie case for retaliation, a
plaintiff must show that (1) “she engaged in protected conduct under Title VII,” (2)
“she suffered an adverse employment action,” and (3) “a causal connection existed
between the protected conduct and the adverse action.” Fennell v. First Step Designs,
Ltd., 83 F.3d 526, 535 (1st Cir. 1996).
Although the parties have used the McDonnnell Douglas burden-shifting
framework to present their arguments, the First Circuit has observed that that “[o]n
summary judgment . . . a court may often dispense with strict attention to the burdenshifting framework, focusing instead on whether the evidence as a whole is sufficient
to make out a jury question as to pretext and discriminatory animus.” Flood, 780
F.3d at 8 (some alterations in original) (quoting Fennell, 83 F.3d at 535).
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V.
DISCUSSION
A.
An Overview
This case, while extraordinarily dense and contentious factually, presents
rather straightforward legal issues. To summarize, the Court concludes that AUSA
Márquez-Marín is entitled to present her case against the DOJ to a jury for its
resolution of contested facts. The DOJ and AUSA Márquez-Marín see the same
actions from such different perspectives that this Court is unable to resolve who is
right within the constraints of summary judgment.
In general, the DOJ presents itself as treating AUSA Márquez-Marín exactly
as it would have treated any other similarly-situated employee, praising her when
she did something well and pointing out when she did not.
By contrast, having successfully demonstrated to a jury that the USAO in
Puerto Rico and its United States Attorney illegally retaliated against her, AUSA
Márquez-Marín warily reentered the office, convinced that the top echelon of the
USAO did not want her back and worried they would seek an opportunity to oust her
from her job, this time legally. In her successful trial, AUSA Márquez-Marín proved
to the satisfaction of a jury that United States Attorney Rodríguez, then the FAUSA,
had treated her unfairly and had retaliated against her. AUSA Márquez-Marín was
worried that upon her return to the USAO, United States Attorney Rodríguez would
neither forgive nor forget and would make her professional life difficult. Like all
USAOs, the Puerto Rico USAO has a hierarchy with a limited number of attorneys
charged to supervise the legal work of the line attorneys and, over time, it has had
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inevitable changes in personnel. But AUSA Márquez-Marín viewed the inner circle
of management personnel as acolytes of United States Attorney Rodríguez who did
her bidding in seeking to rid the office of a troublesome attorney.
Complying with its duty to view disputed facts in the light most favorable to
AUSA Márquez-Marín, the Court cannot know who is right, only that AUSA
Márquez-Marín’s perceptions, if credited, generate factual issues that must be
resolved by a factfinder. The Court highlights one example.
In 2015, Chief Pérez assigned AUSA Márquez-Marín to work on an appellate
brief in United States v. Manso-Cepeda. The day before the brief was due, AUSA
Márquez-Marín sent AUSA Cannon a draft brief, seeking his comment. Knowing
that the brief was due the next day, AUSA Cannon treated the draft brief as AUSA
Márquez-Marín’s finished product and he was apparently appalled at its inadequacy.
AUSA Cannon went to considerable effort to rewrite the brief and he returned it to
AUSA Márquez-Marín with corrections to her grammar, punctuation, and reasoning.
When AUSA Márquez-Marín received AUSA Cannon’s redlined brief, she was
insulted, thinking that it was disrespectful for AUSA Cannon, who had limited
appellate experience, to so vigorously attack her work product, particularly when she
had not asked him to rewrite the brief but only to comment on whether her legal
analysis was correct.
In the ordinary case, this type of miscommunication would be resolved by the
two attorneys speaking to each other, explaining their respective positions, and
working things out. Not all lawyers work the same way. Some attorneys create
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finished products and obtain supervisory review long before any due date; others are
deadline-driven and do their best work under time pressure. Appellate Chief Pérez’s
favorable opinion of AUSA Márquez-Marín suggests that the Appellate Division of
the USAO in Puerto Rico was willing to accommodate both approaches.
But, here, the backdrop of AUSA Márquez-Marín’s prior lawsuit colors the
events. AUSA Cannon not only rewrote AUSA Márquez-Marín’s draft brief to her
annoyance, but also scanned the draft brief and his redlined comments and sent them
to EAUSA Novas, who was not in his supervisory chain. When she found out about
EAUSA Novas’ involvement, AUSA Márquez-Marín’s suspicions were aroused
because AUSA Márquez-Marín viewed EAUSA Novas as one of the people in high
administration who was singling her out and anxious to find fault with her work in
order to do United States Attorney Rodríguez’s bidding. Why EAUSA Novas became
involved at all is not clear, since she was Chief Pérez’s supervisor, and it would seem
an issue of this sort would go to AUSA Márquez-Marín’s immediate supervisor, not
the supervisor of her supervisor. But the record says that EAUSA Novas asked AUSA
Cannon to see AUSA Márquez-Marín’s brief and his edits.
Once AUSA Márquez-Marín learned that AUSA Cannon had supplied the
redlined brief to EAUSA Novas, she became suspicious not only of EAUSA Novas but
also of AUSA Cannon.
Already irritated with his rewriting her brief and now
concerned that he had been coopted by EAUSA Novas and was seeking to discredit
her, she became snippy with him and he, in turn, fired back at her. This entire
episode, including her suspicious and intemperate response to AUSA Cannon,
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became in part the basis for EAUSA Novas downgrading Chief Pérez’s outstanding
rating of AUSA Márquez-Marín in the winter of 2016 and the resulting absence of
any salary increase for that year.
One way to look at this whole business favors the DOJ. An AUSA prepared a
late and error-ridden brief, asked a fellow AUSA for help, and when he helped, she
snapped at him. Furthermore, she failed to follow USAO protocol by obtaining
supervisory approval of her work. Another way of looking at this episode is to see it
as evidence that the USAO administration was singling out a particular AUSA,
looking to discredit her, found an opportunity to do so, and made the most of it, using
it in part to criticize her professionalism and her work product and mark her down in
the annual evaluation. Furthermore, the EAUSA and the AUSA failed to follow
USAO protocol by jumping the chain of command in an effort to criticize her.
In the context of this summary judgment, the Court cannot resolve which of
these perceptions of the same facts is correct. A factfinder must make the call. The
Court has applied the same analysis to each of the contested factual issues in this
case from the salary disparity between AUSA Márquez-Marín and then AUSA
Hernández to the dispute about SUSA Myriam Fernández’s insertion above AUSA
Márquez-Marín in the environmental crimes area. The Court cannot resolve whether
the multitude of factual disputes is grounded on the USAO’s standard operating
procedure or on its retaliatory or discriminatory motives against AUSA MárquezMarín.
The Court addresses several issues.
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B.
Pre-Late 2013 Evidence
The Court accepts the DOJ’s point and AUSA Márquez-Marín’s concession that
evidence that predates late 2013, when Chief Capó observed AUSA Márquez-Marín
and Specialist Reyes talking by the elevator, may not provide an independent basis
for the imposition of liability on the DOJ. Def.’s Mot. at 28; Pl.’s Opp’n at 15. At the
same time, a plaintiff may present evidence of employer actions that would be timebarred so long as one act is timely and so long as the acts are part of the same
employment practice. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122
(2002); Nieves-Borges v. El Conquistador P’ship, L.P., S.E., 936 F.3d 1, 8-9 (1st Cir.
2019). Moreover, time barred evidence “may constitute relevant background evidence
in a proceeding in which the status of a current practice is at issue . . ..” United Air
Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977); see Rathbun v. Autozone, Inc., 361 F.3d
62, 76 (1st Cir. 2004) (“A discriminatory act or practice that is not the basis for a
timely charge of discrimination nonetheless may constitute relevant background
evidence in a proceeding in which the same type of discriminatory act or practice has
been timely challenged”).
This means that the DOJ’s initial arguments in its motion for summary
judgment are no longer viable, including whether the Court should consider events
before the July 2010 settlement agreement and events before January 1, 2010, given
AUSA Márquez-Marín’s discovery representations for purposes of imposing liability
against the DOJ for those acts. See Def.’s Mot. at 28. Similarly, the DOJ’s failure to
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exhaust administrative remedies arguments about events before the late fall of 2013
are now moot. Id. at 28-29.
C.
Hostile Work Environment Claim: Severe and Pervasive
The DOJ’s main basis for its dispositive motion is that AUSA Márquez-Marín
is unable to demonstrate that that its actions were sufficiently severe and pervasive
to sustain a hostile work environment claim. Def.’s Mot. at 30-33. The First Circuit
has provided guidance on how the severe and pervasive element of a hostile work
environment claim is to be analyzed. In Carmona-Rivera v. Puerto Rico, 464 F.3d 14
(1st Cir. 2006), the First Circuit observed that an employee “must demonstrate ‘that
the complained-of conduct was so severe or pervasive that it altered the terms of her
employment.’” Id. at 19 (quoting Pomales v. Celulares Telefónica, Inc., 447 F.3d 79,
83 (1st Cir. 2006)). The First Circuit continued:
‘There is no mathematically precise test’ [the First Circuit] can use to
determine when this burden has been met, instead, [the First Circuit]
evaluate[s] the allegations and all the circumstances, considering ‘the
frequency of the discriminatory conduct; its severity; whether it was
physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interfered with an employee's work
performance.’
Id. (internal quotation marks omitted) (quoting Pomales, 447 F.3d at 83). The First
Circuit stressed that “rudeness or ostracism, standing alone, usually is not enough to
support a hostile work environment claim.” Noviello v. City of Boston, 398 F.3d 76,
92 (1st Cir. 2005). In Colón-Fontánez v. Municipality of San Juan, 660 F.3d 17 (1st
Cir. 2011), the First Circuit wrote that the role of the courts is “to distinguish between
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the ordinary, if occasionally unpleasant, vicissitudes of the workplace and actual
harassment.” Id. at 44 (quoting Noviello, 398 F.3d at 92).
Applying these standards to AUSA Márquez-Marín’s hostile work environment
claim, the Court concludes that she presents a sufficient litany of actions by the
USAO in Puerto Rico to survive summary judgment and present her case to a jury.
As salient an indication as any of the need for factfinding is the record in this case
where the parties present the Court with over eight hundred material facts and
stipulations, requiring the Court to resolve in excess of two hundred disputes. Nor
are the hundreds of factual disputes, qualifications, and additions merely the stuff of
hypervigilant lawyering. The disputes are grounded on a sharp dichotomy between
how the parties view the facts.
It is true that the First Circuit excepted those employer actions that fall within
“the appropriate and necessary duties of their jobs.” Murray v. Warren Pumps, LLC,
821 F.3d 77, 87 (1st Cir. 2016). But in the overall context of this case, this standard
focuses the disputed issue: whether the actions of USAO management against AUSA
Márquez-Marín were within the ordinary scope of their supervisory duties or part of
a campaign to harass her for her successful lawsuit and her vocal insistence on her
legal rights.
Moreover, “[a]ssessing whether the work environment is hostile or abusive
‘must be answered by reference to “all the circumstances.”’” Colón-Fontánez, 660 F.3d
at 43-44 (quoting Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir. 2002) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993))). Here, “all the circumstances”
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includes an employment relationship between the USAO and AUSA Márquez-Marín
that has existed for one year shy of two decades and that has been disputatious for
all but a couple of those years. As the Court indicated earlier, both sides to this
relationship see it very differently on all the controversies between them and, viewing
the facts in the light most favorable to AUSA Márquez-Marín, the Court is unable to
rule on this record that she should not be entitled to a trial on the merits.
In arriving at this conclusion, the Court readily agrees with the DOJ that,
when the burden-shifting McDonnell Douglas analysis is performed, the DOJ proffers
legitimate business reasons for its actions and meets its burden of production. See
Alvarado v. Donahoe, 687 F.3d 453, 458 (1st Cir. 2012). The question shifts to
whether AUSA Márquez-Marín “show[s] that h[er] employer's stated reasons are
pretextual and proffered to disguise retaliatory animus.” Id. at 458 (citing Collazo v.
Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010)). Here again, the
Court concludes that, when viewing contested facts in the light most favorable to
AUSA Márquez-Marín, she raises enough material factual issues to require jury
resolution of this longstanding controversy.
D.
Causal Relationship
The DOJ’s second point is that “no reasonable jury could find that [AUSA]
Márquez[-Marín]’s working environment was causally related to her protected
activity . . ..” Def.’s Mot. at 41. The DOJ argues that AUSA Márquez-Marín proffers
no motive on the part of Chief Capó, EAUSA Novas, or the other high administrators
for discriminating against or harassing her. Id. at 41-43.
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But the Court views this as a factual issue that must be resolved by a
factfinder. AUSA Márquez-Marín presents a USAO divided between the ins and outs.
The ins, favored by United States Attorney Rodríguez, are rewarded by promotion
and authority. The outs, disfavored by United States Attorney Rodríguez, are denied
promotion, sanctioned, and removed from office. One common denominator among
the ins is that they closely scrutinize and criticize AUSA Márquez-Marín, and a
common denominator among the outs is that they support her.
A couple of examples suffice.
From AUSA Márquez-Marín’s perspective,
United States Attorney Rodríguez hired Jacqueline Novas without her applying for a
job with the USAO. Although she began as an AUSA and Special Counsel to the
United States Attorney, in short order she was elevated to EAUSA and given the
responsibility to supervise her former supervisor Appellate Division Chief Pérez. In
that position, she scrutinized AUSA Márquez-Marín’s work product, found fault, and
lowered the annual evaluations of AUSA Márquez-Marín over the objection of Chief
Pérez. As AUSA Márquez-Marín sees it, Jacqueline Novas’ rise in the USAO was
related to her willingness to use her supervisory authority to act against AUSA
Márquez-Marín.
Chief Pérez, by contrast, was a vocal supporter of AUSA Márquez-Marín. The
record reflects that in no uncertain terms, he informed EAUSA Novas that he was
going to rate AUSA Márquez-Marín as outstanding despite EAUSA Novas’ obvious
desire to mark her down. He also testified for AUSA Márquez-Marín in February
2016 during the EEO investigation. By April 2016, the next time he was up for
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reappointment as Appellate Division Chief, United States Attorney Rodríguez did not
reappoint him, which he believed was related to his support of AUSA Márquez-Marín.
This view of the record is not the only view. The USAO in Puerto Rico is a
large office and a complicated bureaucracy. It is no surprise that a United States
Attorney would promote the attorneys with whom she works well. The record reflects
that EAUSA Novas is well-educated and experienced and, absent the controversies
in this case, there is nothing noteworthy about her rise within the USAO. The
decision not to reappoint Nelson Pérez as Appellate Division Chief was, as he noted,
fully within the United States Attorney’s authority and may simply have been a
natural ebb and flow of job classification. It is also unremarkable that some AUSAs
are not as adept as others and these AUSAs merit increased scrutiny to make sure
the legal work of the United States is of the highest caliber. In addition, the focus of
this order has naturally been on AUSA Márquez-Marín, who has been but one
employee in a large office, and decisions must have been made without reference to
her or for broader reasons. Nevertheless, the evidence, when viewed in the light most
favorable to AUSA Márquez-Marín, reveals that a similar pattern exists with other
personnel decisions within the USAO.
The bottom line is that these differing perspectives are grounded in differing
assessments of admissible evidence and raise factual issues this Court may not
resolve within the confines of summary judgment practice. Thus, the Court concludes
that the conflicting evidence in this case would warrant a jury verdict for either side,
once the jury considers the evidence, measures the credibility of the participants, and
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is properly instructed on the law. Whatever a jury might find, the Court concludes
that AUSA Márquez-Marín has raised sufficient evidence, when the record is viewed
in the light most favorable to her, to merit a resolution of these disputes by trial, not
by summary process.
E.
The Faragher/Ellerth Defense
Relying on two Supreme Court cases, the DOJ raises the Faragher/Ellerth
affirmative defense to AUSA Márquez-Marín’s claims.
Def.’s Mot. at 43 (citing
Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765). In Nieves-Borges, the First
Circuit reiterated the two-part affirmative defense: ”[T]he employer may prevail if it
demonstrates a two-part affirmative defense: that its own actions to prevent and
correct harassment were reasonable and that the employee's actions in seeking to
avoid harm were not reasonable.” 936 F.3d at 6 (quoting Chaloult v. Interstate
Brands Corp., 540 F.3d 64, 66 (1st Cir. 2008)).
On the facts in this case, the Faragher/Ellerth defense seems inapplicable.
Skipping over the first prong, whatever else may be in dispute about this situation,
it cannot be reasonably claimed that AUSA Márquez-Marín slept on her rights. The
record here reveals just the opposite. AUSA Márquez-Marín fought every step of the
way and constantly objected to their actions from demanding reasonable
accommodation to objecting to less than stellar evaluations to questioning criticism
of her work product.
In fact, on this record, an inference could be made that
underlying the USAO’s negativity toward AUSA Márquez-Marín was that she was so
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quick to assert her legal rights for every USAO employment decision, a habit that
may have been particularly galling after her civil jury trial victory.
In any event, on this record viewed in the light most favorable to AUSA
Márquez-Marín, the Court concludes that the DOJ has not sustained its
Faragher/Ellerth affirmative defense.
VI.
CONCLUSION
The Court DENIES the Defendant’s Motion for Summary Judgment (ECF No.
92).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 26th day of May, 2020
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CAST OF INDIVIDUALS
(in alphabetical order, by last name)
1.
Victor Acevedo: Assistant United States Attorney (AUSA) in 2014 and 2015
2.
Alexander Alum: AUSA in 2014 and 2015
3.
Scott Anderson: Senior Litigation Counsel (SLC) in 2015
4.
Dina Ávila: AUSA at some point between 2008 and 2016
5.
Michael Bagge: AUSA at some point between 2008 and 2016
6.
Mariana Bauza: AUSA in 2010
7.
Antonio Bazán: SLC in 2008
8.
Tsedey Behanu: EEO investigator with the EOUSA in 2014
9.
Marilyn Benitez: Supervisory Information Technology Specialist in 2014
10.
Judith Berkan: AUSA Márquez-Marín’s attorney throughout
11.
Vanessa Bonano: Special Assistant United States Attorney (SAUSA) in March
2014
12.
Wallace Bustelo: SAUSA until May 31, 2014; HHS-OIG Special Agent before
SAUSA position and after May 31, 2014
13.
Evelyn Canáls: AUSA in 2014 and 2015
14.
Nicholas Cannon: AUSA in 2014 and 2015
15.
José Capó Iriate: AUSA until late March 2013; Supervisory Assistant United
States Attorney (SUSA) and head of the Violent Crimes Unit from April 7,
2013, until between June 4, 2015, and September 2015; Chief of the Criminal
Division starting between June 4, 2015, and September 2015
16.
Migdalia Carballo: Legal assistant in 2015
17.
Sylvia Carreño-Coll: SAUSA until around July 2011
18.
Luke Cass: AUSA in 2014 and 2015
19.
Agnes Cordero: AUSA at some point between 2008 and 2016
20.
Darlye Coronado: Legal assistant in 2012
21.
Juan De Angel: Human Resources Specialist at some point between 2008 and
2016
22.
Judge Aida Delgado-Colón: Chief Judge of the United States District Court for
the District of Puerto Rico in 2014
222
Case 3:16-cv-01706-JAW-JCN Document 155 Filed 05/26/20 Page 223 of 224
23.
María Domínguez Victoriano: First Assistant United States Attorney (FAUSA)
from around June 2006 until around February 19, 2015
24.
Carole Fernández: AUSA with the Southern District of Florida and counsel for
the Puerto Rico USAO during AUSA Márquez-Marín’s 2007 trial
25.
Mike Fernández: SUSA in February 2010
26.
Myriam Fernández: AUSA until February/March 2013; SUSA and Deputy
Chief of the Narcotics Unit from February/March 2013 until February 2016;
SUSA and head of the Financial Fraud and Corruption Unit starting in
February 2016
27.
Ivette Figueroa: United States Attorney Rodríguez’s assistant in 2015
28.
Normary Figueroa: SAUSA in 2013 and 2014
29.
David Gaouette: EARS evaluation team leader and Executive Assistant United
States Attorney (EAUSA) in the District of Colorado on detail to the EOUSA
in January 2016
30.
Humberto (Bert) García: United States Attorney from mid-2002 until June
2006
31.
Guillermo Gil: United States Attorney until 2002; SAUSA in 2008
32.
Elba Gorbea: AUSA in 2015
33.
Timothy Henwood: Chief of White Collar from at latest July 2014 until
February 2015; FAUSA after February 2015
34.
Jenifer Hernández: AUSA from December 16, 2001, until May 2013; SUSA and
Deputy Chief of the Narcotics Unit after May 2013
35.
Vernesa Jones-Allen: Special Agent in Charge from EPA Headquarters in 2016
36.
Judge Joseph Laplante: Judge of the United States District Court for the
District of New Hampshire starting in 2007
37.
Dennise Longo: AUSA in 2014 and 2015
38.
Carmen Pura López: Human Resources Officer in 2008 through 2016
39.
Carmen Márquez-Marín: Assistant United States Attorney from December 16,
2001, until August 27, 2004, and starting again on March 17, 2008;
Environmental Crimes Coordinator starting in June 2013 (concurrent)
40.
Justin Martin: AUSA in 2011
41.
Judge Steven McAuliffe: Chief Judge of the United States District Court for
the District of New Hampshire from 2004 through 2011
42.
Idalia Mestey: AUSA at some point between 2008 and 2016
223
Case 3:16-cv-01706-JAW-JCN Document 155 Filed 05/26/20 Page 224 of 224
43.
Ginette Milánes: AUSA in 2008
44.
Damaris Morales: Budget Officer in 2014
45.
Jacqueline Novas: AUSA and Special Counsel to the United States Attorney
from at latest March 2008, until January 12, 2015; EAUSA and Special
Counsel to the United States Attorney starting on January 12, 2015; Acting
United States Attorney temporarily around August 18, 2016
46.
Max Pérez: AUSA in 2014 and 2015
47.
Nelson Pérez: Chief of the Appellate Division from at latest April 11, 2008,
until April 8, 2016; AUSA after April 8, 2016
48.
José Pizarro: Deputy Chief of the Civil Division in 2008
49.
Hector Ramírez: AUSA until late 2013; Chief of the Civil Division from late
2013
50.
Francisco Reyes Caparrós: Intelligence Specialist from 2009 until February
2015
51.
Ilianys Rivera: AUSA in 2008 through 2012
52.
Rosa Emilia Rodríguez: EAUSA from at latest 2001 until mid-2002; FAUSA
from mid-2002 until 2007; United States Attorney from 2007 (appointed in
2006) until 2019
53.
Alexis Ruiz: AUSA Márquez-Marín’s legal assistant in 2014
54.
José Ruiz: Chief of the Criminal Division from at latest March 2008, until
around January 2016; SLC starting around January 2016
55.
Dr. Dwight Santiago Pérez: AUSA Márquez-Marín’s physician in 2014 through
2016
56.
Jacqueline Schesnol: Assistant General Counsel at EOUSA, General Counsel’s
Office in 2015
57.
Howard Stewart: AUSA with DOJ’s Environmental and Natural Resources
Division in 2013 through 2016
58.
Rosemary Torres: Human Resources Specialist in 2015
59.
Warren Vázquez: SUSA and head of the Violent Crimes Unit from at latest
March 2008 until April 6, 2013
60.
Hector Vélez: EPA counsel in 2016
61.
Lisa Western: USAO Administrative Officer in 2013 through 2015
62.
Neil White: Attorney in the EOUSA in 2008
224
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