Gonzalez-Tomasini et al v. Brennan

Filing 159

OPINION AND ORDER granting in part and denying in part 151 Motion for Summary Judgment. Signed by US Magistrate Judge Marcos E. Lopez on 3/24/2022. (BB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ORLANDO GONZÁLEZ TOMASINI,
Plaintiff,
v.

CIVIL NO.: 17-1552 (MEL)

UNITED STATES POSTAL SERVICE,
Defendant.

OPINION & ORDER
Mr. Orlando González Tomasini (“Plaintiff”) filed an amended complaint against United
States Postal Service and its Postmaster General in his official capacity (“Defendant” or
“USPS”), on December 17, 2018. ECF No. 28. 1 In his complaint, Plaintiff alleges violations of
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., the
Rehabilitation Act, 29 U.S.C. § 791 et seq., and the Family Medical Leave Act (“FMLA”), 29
U.S.C. § 2601 et seq. 2 Plaintiff alleges that his employer, the USPS, subjected him to age and
disability discrimination, interfered with his substantive rights under the FMLA, and retaliated
against the Plaintiff for protected activity under each of the above Acts. Specifically, Plaintiff
claims he was subject to discrimination, harassment creating a hostile work environment, and
retaliation in the form of a hostile work environment, unjust discipline, and the fabrication of a

1

At the time the suit was filed, the Postmaster General of the United States was Megan J. Brennan, but Louis Dejoy
has since assumed the post. Under Federal Rule of Civil Procedure 25(d), when a suit is commenced against a public
officer in their official capacity who then ceases to hold office and is replaced, then “[t]he officer's successor is
automatically substituted as a party.”
2
Plaintiff’s claims for violations of the Federal Tort Claims Act (“FTCA”) and Puerto Rico law claims under 31
L.P.R.A. §§ 5141, 5142 were dismissed by the court when ruling upon Defendant’s motion to dismiss. ECF No. 46.

federal criminal case against him.3 Pending before the court is Defendant’s motion for summary
judgment. ECF Nos. 151, 152, 153. Plaintiff responded in opposition on October 18, 2021. ECF
Nos. 157, 158.
I.

ADMISSIBILITY IN SUMMARY JUDGMENT
A. THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) INVESTIGATIVE
REPORT (EXHIBIT H)
As a threshold evidentiary matter, Plaintiff challenges Defendant’s introduction of the

“EEOC Investigative Report” (Exhibit H; ECF No. 152-8) in support of Defendant’s motion for
summary judgment. 4 Plaintiff contends that because the EEOC Investigative Report was not
written by the Plaintiff it is hearsay and, by implication, inadmissible. ECF No. 157 at 5, ¶¶ 22,
23. However, prior administrative findings are admissible in employee discrimination cases
pursuant to the public records hearsay exception. See Chandler v. Roudebush, 425 U.S. 840, 863
n. 39 (1976) (“Prior administrative findings made with respect to an employment discrimination

3

Plaintiff also raised age and disability discrimination under Title VII of the Civil Rights Act, asserting he was
subject to a hostile work environment, retaliatory harassment, and disparate treatment. ECF No. 28 at 21. However,
Title VII does not protect against discrimination based on age or disability. Salamo Martínez v. Celulares
Telefónica, Inc., 272 F. Supp. 2d 144, 152 (D.P.R. 2003). The plain language of Title VII makes no mention of age
or disability, and refers only to the unlawfulness of discrimination “against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). Likewise, the portion of Title VII which applies to
retaliation specifically prohibits retaliation against an employee “because [the employee] has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter
[Title VII].” Noviello v. City of Boston, 398 F.3d 76, 90 (1st Cir. 2005) (citing 42 U.S.C. § 2000e-3(a)) (emphasis
added). Discrimination and retaliation based on age or disability are instead covered by separate statutes, namely,
the Age Discrimination in Employment Act (“ADEA”) and the Rehabilitation Act. See Smith v. City of Jackson,
Miss., 544 U.S. 228, 254 (2005) (O’Connor, J., Kennedy, J., and Thomas, J., concurring) (“Furthermore, as the
Congresses that adopted both Title VII and the ADEA clearly recognized, the two statutes were intended to address
qualitatively different kinds of discrimination.”); Rojas v. Principi, 326 F. Supp. 2d 267, 272–73 (D.P.R. 2004)
(“Disability discrimination in federal employment is specifically covered by the provisions of The Rehabilitation
Act of 1973, 29 U.S.C. § 794 whereas age discrimination claims against the federal government are governed by the
special provisions of the ADEA, specifically 29 U.S.C. § 633a.”). Therefore, insofar as the Plaintiff asserts claims
for age or disability discrimination under Title VII, the court construes those claims as part of Plaintiff’s causes of
action under ADEA and the Rehabilitation Act. Plaintiff’s disability and age discrimination claims under Title VII
are dismissed.
4
Plaintiff specifically objects to the introduction of the EEOC Investigative report in support of Defendant’s
proposed facts 22 and 23. ECF No. 152 at 5. However, Plaintiff’s challenge also implicates Defendant’s proposed
facts 32, 34, 98, and 99 because these facts also cite to the EEOC Investigative Report. ECF No. 152 at 9–10, 28–29.

2

claim may, of course, be admitted as evidence at a federal-sector trial de novo.”) (citing Fed. R.
Evid. 803(8)). Specifically, Federal Rule of Evidence 803(8)(A)(iii) lists “factual findings from a
legally authorized investigation . . . .” as an exception to the hearsay rule in civil cases, as long as
the opponent of the evidence “does not show that the source of information or other
circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8)(A)(iii)–(B). The First
Circuit, like other circuits, has left the question of admissibility and trustworthiness of EEOC
reports and findings to the discretion of the trial court. Smith v. Mass. Inst. of Tech., 877 F.2d
1106, 1112–13 (1st Cir. 1989) (“Our canvass of the other circuits reveals general agreement that
the question of admissibility is one for the discretion of the district court.”); Talavera v.
Municipality of San Sebastian, 865 F. Supp. 2d 150, 154 (D.P.R. 2011) (“The Smith opinion
essentially stands for the proposition that ‘the question of admissibility [of EEOC reports] is one
for the discretion of the district court.’”); see also Burns v. Johnson, 829 F.3d 1, 8 n. 5 (1st Cir.
2016) (citing Smith, 877 F.2d at 1113).
Plaintiff has made no showing that would indicate a lack of trustworthiness in the EEOC
Investigative Report. Indeed, the Plaintiff does not even appear to contest the factual contentions
being supported by the report, and instead challenges the report as the source of Defendant’s
proposed facts without elaboration. Therefore, because the EEOC Investigative Report falls
under the public record exception language of Federal Rule of Evidence 803(8)(A)(iii) and
because there is no reason to doubt the trustworthiness of the cited portions of the report, the
court exercises its discretion to admit the EEOC Investigative Report as evidence in support of
Defendant’s motion for summary judgment.

3

B. AUTHENTICATION OF DOCUMENTS FROM THE OFFICE OF WORKERS COMPENSATION
PROGRAMS (“OWCP”)
Plaintiff also challenges the genuineness of certain documents purporting to be from the
Office of Workers’ Compensation Programs, originating in an online platform labeled “AQS.”
Exhibit Q; ECF No. 152-17. Plaintiff argues that under Federal Rule of Civil Procedure 56(c)(2)
these documents are not properly authenticated and therefore inadmissible. 5 A document
submitted for purposes of summary judgment generally must be properly authenticated. G. v.
Fay School, 931 F.3d 1, 14 (1st Cir. 2019) (stating that documents that are “unauthenticated” are
“inadmissible at the summary judgment stage” (citing Carmona v. Toledo, 215 F.3d 124, 131
(1st Cir. 2000)); but see Joseph v. Lincare, Inc., 989 F.3d 147, 156 (1st Cir. 2021).
Authentication is not generally an onerous requirement and authenticating an exhibit such
as that which Defendant seeks to introduce would only require an affidavit or deposition
testimony from, for example, a custodian of records confirming the reliability of the records. See
Rodríguez Vega v. Policlínica la Familia de Toa Alta, Inc., 942 F. Supp. 2d 210, 223 n. 7 (D.P.R.
2013); Setterlund v. Potter, 597 F. Supp. 2d 167, 170–71 (D. Mass. 2008); Joseph, 989 F.3d at
156. However, while the disputed exhibit does appear to contain genuine OWCP information,
Defendant has not even attempted to authenticate the disputed exhibit nor responded to
Plaintiff’s challenge to the exhibit. See Setterlund, 597 F. Supp. 2d at 171 (“Here, plaintiff has
not attempted to authenticate any of the disputed exhibits. Although many appear to be
genuine—for example, plaintiff has submitted copies of documents that are almost certainly
relevant records of the USPS or her medical providers—the appearance of authenticity is not
enough.”). Therefore, although looking genuine, Defendant’s Exhibit Q has not been properly

5

Defendant’s Exhibit Q is used as evidentiary support for Defendant’s proposed facts 35, 36, 37, 38, 43, 44, 47, 49,
51, 52, 54, 55, 61, 62, 63, and 64. ECF No. 152 at 11–18.

4

authenticated by Defendant and cannot be admitted as evidence for the purposes of summary
judgment.
C. AUTHENTICATION OF PLAINTIFF’S UNSWORN WITNESS STATEMENTS
Turning to Plaintiff’s exhibits, Plaintiff cited to several unsworn statements from
deposition witnesses, namely the statements of Rolando Franquiz (Exhibit 10; ECF No. 157-10),
Marcos Toledo (Exhibit 17; ECF No. 157-17), and Víctor Rivera (Exhibit 21; ECF No. 157-21).
Typically, unsworn witness statements that are not made under penalty of perjury are
inadmissible for purposes of summary judgment. See e.g. Setterlund, 597 F. Supp. 2d at 172
(“Plaintiff has also submitted at least six exhibits that are in the form of witness statements or
letters, generally addressed “to whom it may concern . . . . [P]laintiff has pointed to no case, and
the Court has found none, where an unsworn witness statement (as opposed to a deposition or
affidavit) was accepted by a court in opposition to a motion for summary judgment.”). However,
the authenticity of a written statement can be established independently through a deposition
when a witness testifies that they authored the statement and discusses its contents. Joseph, 989
F.3d at 156 (“Fed. R. Evid. 901(b)(1) (“testimony by a witness with knowledge that the item is
what it purports to be satisfies the requirement of authentication”). Rolando Franquiz, Marcos
Toledo, and Víctor Rivera all testified in their depositions that they authored the statements
Plaintiff seeks to introduce and each witness testified as to their contents. The statements by
Rolando Franquiz , Marcos Toledo, and Víctor Rivera (ECF Nos. 157-10, 157-17, 157-21) are
therefore properly authenticated by the deposition testimony of their authors and can be admitted
as evidence in ruling on summary judgment.

5

II.

UNCONTESTED FACTS 6
Plaintiff Orlando González Tomasini began working for the U.S. Postal Service as a city

carrier in California in 2003. ECF No. 152 at 1, ¶ 1; ECF No. 157 at 1, ¶ 1. In 2005, Plaintiff
transferred to a USPS position in Puerto Rico in 2005, and eventually began working at the
Bayamón Branch Post Office as a city carrier. ECF No. 152 at 1, ¶ 2; see ECF No. 157 at 2, ¶ 2.
A city carrier prepares, sorts, and cases his mail for the route and delivers mail and packages on
the street. ECF No. 152 at 1, ¶ 3; ECF No. 157 at 2, ¶ 3.
During the time that Plaintiff worked at the Bayamón Branch Post Office, almost all the
letter carriers were over 40 years old. ECF No. 152-15 at 63, ¶¶ 15–25; ¶¶ 1–19. However, most
of the letter carriers at the Bayamón Branch were younger than the Plaintiff. ECF No. 157 at 38,
¶ 25; ECF No. 157-7 at 15, ¶¶ 9–25, 16, ¶¶ 1–2. Plaintiff was born in 1961 and would have been
53 years old in January 2015. ECF No. 152-18 at 2.
Plaintiff was never disciplined while working for the USPS in California and was not
disciplined while working with the USPS in Puerto Rico from 2005 to May 14, 2015. ECF No.
157 at 29, ¶ 1; ECF No. 157-6 at 2, ¶ 3. Richard Lugo (“Lugo”) was the Manager of the
Bayamón, Puerto Rico Branch Post Office from 2009 to 2016 and the second line supervisor of
Plaintiff between August 2014 and May 15, 2015. ECF No. 152 at 2, ¶ 8; ECF No. 157 at 3, ¶ 8.

6

The following proposed facts from Defendant’s “State of Uncontested Material Facts” (ECF No. 152) are not
admitted because they are not supported by their record citation: 26, 28, 46, 48, 61, 63, 65, 66, 70, 80, 86, 88, 89.
The following of Defendant’s proposed facts are deemed admitted despite Plaintiff’s denial because either the denial
is not supported by the record citation, the denial is not supported by a record citation at all, or because Plaintiff’s
denial does not contradict the relevant proposed fact: 2, 3, 4, 5, 6, 9, 12, 13, 15, 16, 17, 30, 50, 59, 60, 67, 73, 76, 77,
79, 83, 91, 92, 93, 95. Furthermore, Defendant’s proposed facts 22, 23, and 24 are deemed admitted because
Plaintiff’s denial is either conclusory or only cites to the amended complaint as support for the denial.
Defendant did not file a reply statement of material facts in response to Plaintiff’s additional assertions
presented in his “Counterstatement of Material Facts.” ECF No. 157. As such, Defendant neither admitted nor
denied these additional facts. Nevertheless, the following proposed facts by Plaintiff in his “Counterstatement of
Material Facts” are not admitted because they are not supported by the record citation: 2, 8, 51, 62. Furthermore, the
following additional proposed facts submitted by the Plaintiff are not admitted because they are based inadmissible
hearsay, a legal conclusion, or because they are speculative: 20A, 20B, 21, 27, 35, 57, 64, 73, 74.

6

Carmello Moyeno (“Moyeno’), Guillermo Dávila (“Dávila”), and Carlos Cabrera (“Cabrera”)
also held supervisor positions at the Bayamón Branch post office between 2014 and 2017. ECF
No. 157 at 40, ¶ 36; ECF No. 157-8 at 19–24.
Before 2013 Plaintiff had not been diagnosed with any permanent medical condition.
ECF No. 152 at 7, ¶ 57; ECF No. 157 at 16, ¶ 57. On April 16, 2013 Plaintiff suffered an
accident at work. 7 ECF No. 152 at 5, ¶ 39; ECF No. 152-1 at 99, ¶¶ 18–25; 100, ¶¶ 1–9; 104, ¶¶
1–25; 105, ¶¶ 1–21. At some unspecified time after the accident, Plaintiff delivered a Federal
Workers' Compensation form (“CA-17”) regarding the accident to Lugo, which was to be sent to
the Office of Workers Compensation Programs (“OWCP”). ECF No. 152 at 5, ¶ 39; ECF No.
152-1 at 99, ¶¶ 18–25; 100, ¶¶ 1–9; 104, ¶¶ 1–25; 105, ¶¶ 1–21. For an unspecified period of
time thereafter, Plaintiff performed “limited duty” according to the restrictions established by his
doctor in the CA-17. ECF No. 152 at 5, ¶ 39; ECF No. 152-1 at 99, ¶¶ 18–25; 100, ¶¶ 1–9; 104,
¶¶ 1–25; 105, ¶¶ 1–21. Plaintiff’s limited duties in connection with the April 16, 2013 accident
included no overtime. ECF No. 152 at 5, ¶ 40; ECF No. 157 at 12, ¶ 40. In addition to no
overtime, Plaintiff’s CA-17 limited how much time he could walk, specified that he could not
use a satchel, and required that he be given the “panels of the condominiums.” ECF No. 157 at
31–32, ¶ 6; ECF No. 157-2 at 38, ¶¶ 2–10. Although it is unclear for how long Plaintiff’s limited
duties after his April 16, 2013 accident lasted, Plaintiff was again placed on limited duties from
September 11, 2013 through November 6, 2013 for “bulging disk C3-C4”, “[p]aracentral
disprotrusion C5-C6”, and “carpal tunnel syndrome.” ECF No. 157-28 at 3. 8

7

The nature of Plaintiff’s April 16, 2013 accident is unknown because Plaintiff successfully moved to strike the
cited evidence (ECF No. 152-17) describing the nature of the accident because the proffered source was not
authenticated. See supra page 4.
8
Despite these limited duties, the parties agree that “Plaintiff did not ask for a reasonable accommodation after the
accident that he reported to USPS and OWCP in 2013.” ECF No. 152 at 5, ¶ 41; ECF No. 157 at 12, ¶ 41; ECF No.
157-28 at 4. This is problematic for several reasons. First, admissible record evidence shows that Plaintiff was
placed on limited duties three times in 2013, but the parties do not cite to evidence which specifies after which

7

Beginning in November 2013, and up to and including May 15, 2015, Juan Santos
(“Santos”) directly supervised Plaintiff at the Bayamón Branch Post Office. ECF No. 152 at 2, ¶
6; ECF No. 152-4 at 001; ECF No. 157 at 3, ¶ 6; ECF No. 157-4, at 2. After Santos arrived at the
Bayamón Post Office, Plaintiff was once again placed on “limited duties and accommodated”;
accommodations which included no overtime and no satchel from December 11, 2013, until
January 31, 2014 because of “severe back [and] neck pain, left leg numbness, [and] hand pain.”
ECF No. 158 at 26; ECF No. 157-28 at 4. Again, “from June 9, 2014, until July 21, 2014,
Plaintiff was placed on limited duties and accommodated.” ECF No. 158 at 26; ECF No. 157-28
at 5. Plaintiff’s “limited duties were extended on July 31, 2014, until August 26, 2014” for
“severe neck [and] back pain[,] left leg numbness[, and] back pain.” ECF No. 158 at 26; ECF
No. 157-28 at 6.
In August 2014, Plaintiff was working Route 56, which he had voluntarily requested.
ECF No. 152 at 6, ¶ 45; ECF No. 152-1 at 89–90; ECF No. 152-5 at 153–154; ECF No. 152-15
at 40–41, 110. On August 13, 2014, Plaintiff filed an internal ‘Report of Hazard, Unsafe
Condition or Practice” with the USPS to “inform management that Mr. Santos is creating a
hostile environment by the manner he is conducting himself. There’s been manny [sic] incidents
with Mr. Santos. His approach to every incident is with a very agressive [sic] manner.” ECF No.
157–25. On August 19, 2014, Santos told Plaintiff that in order for him to believe that Plaintiff
had medical restrictions, Plaintiff had to submit medical evidence. ECF No. 152 at 3, ¶ 22; ECF
No. 152-8 at 1; ECF No. 157 at 30, ¶ 5; 37, ¶¶ 22; ECF No. 157-6 at 3–4, ¶ 9; ECF No. 157-9 at

“accident” Plaintiff failed to “ask for a reasonable accommodation.” Second, it is unclear how the parties define a
request for an accommodation. Plaintiff later contends that being placed on limited duties show that plaintiff was
“accommodated” for some medical reason despite the parties agreeing that Plaintiff did not ask for an
accommodation in 2013. ECF No. 158 at 26; ECF No. 157-28 at 4. Because of the parties’ inconsistent use of the
term “accommodation” with regard to Plaintiff’s limited duties, for the purposes of deciding the summary judgment
motion and taking all inferences in favor of the Plaintiff, the court will consider filing a CA-17 for limited duty
restrictions as a request for an “accommodation.”

8

50, ¶¶ 7–12; 55, ¶¶ 20–25; 56, ¶¶ 1–10; 60, ¶¶ 9–15; ECF No. 157-10. Plaintiff, however,
refused to provide Santos with medical documentation, explaining that he had reached an
agreement with Lugo regarding his medical restrictions. ECF No. 157 at 30, ¶ 3; ECF No. 157 at
40, ¶ 34; ECF No. 157-22 at 101, ¶¶ 2–16. Santos replied that Lugo could “stick that
arrangement up his ass because he was the one that was there, and he was the one that would
decide what was going to be done there.” ECF No. 157 at 30, ¶ 3; ECF No. 157 at 40, ¶ 34; ECF
No. 157-22 at 101, ¶¶ 2–16. One witness to the August 19, 2014 exchange, Rolando Franquiz,
testified that in 27 years of working for USPS, he had never witnessed a supervisor demand
medical documentary evidence from an employee except on this one occasion. ECF No. 157 at
37, ¶¶ 23; ECF No. 157-9 at 56, ¶¶ 20–25; 57, ¶¶ 1–6.
On August 22, 2014 and again on October 1, 2014, Plaintiff requested “auxiliary
assistance” for his route based on his “medical restrictions”, but Santos denied both requests.
ECF No. 157 at 30, ¶ 3A–4; ECF No. 157-6 at 2, ¶ 4–5. Whether to grant auxiliary assistance is
determined by the volume of work for the particular route on the given day. ECF No. 152 at 8, ¶
67; ECF No. 152-4 at 012. Plaintiff suffered another undefined accident and filed an associated
OWCP claim on November 24, 2014. ECF 152 at 7, ¶ 50; ECF No. 152-1 at 181, ¶¶ 3–25; ECF
No. 152-20 at 1; ECF No. 157 at 15, ¶ 50. 9 On December 3, 2014, Lugo wrote a letter to the
claims examiner at the Department of Labor and controverted Plaintiff’s OWCP claim, writing
that Plaintiff was a “repeat offender.” ECF 152 at 7, ¶ 50; ECF No. 152-1 at 181, ¶¶ 3–25; ECF
No. 152-5 at 151, ¶¶ 1–14; ECF No. 152-20 at 1; ECF No. 157 at 15, ¶ 50.

9

The nature of Plaintiff’s November 24, 2014 accident is unknown due to the fact that Plaintiff successfully moved
to strike the cited evidence describing the nature of the accident (ECF No. 152-17) because the proffered source was
not authenticated. See supra page 4.

9

On January 8, 2015, Plaintiff called Moyeno at the Bayamón Branch and reported that he
had fallen on his route. ECF No. 157 at 43. ¶ 47; ECF No. 157-8 at 71, ¶¶ 8–10; 75, ¶¶ 4–7.
Later that day, Plaintiff reported to the post office, where Moyeno saw that Plaintiff had torn
pants and a swollen, red knee. ECF No. 157 at 43, ¶¶ 48; ECF No. 157-8 at 75, ¶¶ 8–20. Moyeno
gave Plaintiff a Federal Workers' Compensation form CA-17 and an Application of Continuation
of Pay form (“CA-1”) so that Plaintiff could get medical attention. ECF No. 157 at 43, ¶¶ 48;
ECF No. 157-8 at 75, ¶¶ 8–20. Because of this accident, Plaintiff suffered a knee injury wherein
Plaintiff’s knee was swollen, painful, and the arc of movement was limited from 0 to 70 degrees.
ECF No. 157 at 35, ¶ 16; ECF No. 157-15 at 54, ¶¶ 12–15; 55, ¶¶ 2–16. Moyeno completed the
CA-1, informed Santos of Plaintiff’s accident, and put everything in a blue folder on Lugo’s
desk. ECF No. 157 at 76, ¶¶ 4–18; 78, ¶¶ 1–3. Plaintiff received medical attention for the injury
and delivered to Moyeno an x-ray of the injury to his knee the day after the accident, on January
9, 2014. ECF No. 157 at 44, ¶ 52; 46 at ¶ 65; ECF No. 157-8 at 123, ¶¶ 7–17; 138, ¶¶ 3–8; 140,
¶¶ 1–10. After his January 8, 2015 accident, Plaintiff elected to be placed on leave of absence
outside of the Bayamón Branch post office for 45 days. ECF No. 152 at 7, ¶ 58; ECF No. 157 at
17, ¶ 58; ECF No. 157-8 at 79, ¶¶ 4–17. 10
At some unspecified time afterwards, Lugo created a created a “special procedure” for
Plaintiff whereby all disciplinary and injury matters for the Plaintiff had to go through Santos,
and such matters could not go through any other supervisor. ECF No. 157 at 42, ¶ 46; 47, ¶ 68;

10

Again, it is unclear how the parties define “accommodation.” Defendant contends that “Plaintiff did not request
reasonable accommodation after his January 8, 2015 knee injury.” ECF No. 152 at 9, ¶ 77; ECF No. 152-1 at 217.
Plaintiff agreed with the above statement with the following qualification: “Plaintiff stated that it was no[t]
necessary at that time to request a reasonable accommodation ‘because the doctor is putting it right here, that I
should continue on limited duties.’” ECF No. 157 at 24, ¶ 77; ECF No. 157-1 at 217, ¶¶ 18-24. A reasonable
inference can be made that Plaintiff’s limited duties as specified by the doctor refers to his CA-17. Therefore, as
discussed above, supra note 8, the court considers Plaintiff’s filing of a CA-17 for limited duty restrictions as a
request for reasonable accommodation.

10

ECF No. 157-8 at 68, ¶¶ 22–24; 134, ¶¶ 1–19. 11 According to Moyeno, to require that all such
matters for Plaintiff to go through Santos was not “normal” because there were four supervisors
at the branch, and one supervisor was not usually “in charge of one employee.” ECF No. 157 at
47, ¶ 68; ECF No. 157-8 at 132, ¶¶ 4–13.
While Plaintiff was out of the Bayamón Branch Post Office on his 45-day leave of
absence, a route inspection of Plaintiff’s route was carried out by a younger carrier on January
29, 2015, but the inspection paperwork was completed with Plaintiff’s name. ECF No. 152 at 10,
¶ 87; ECF No. 152-11 at 020; ECF No. 157 at 36, ¶ 19; ECF No. 157-20 at 1. Plaintiff returned
to work after his leave of absence on February 27, 2015 and submitted a CA-17 which his doctor
had completed the day before. ECF No. 157 at 17, ¶ 59; ECF No. 152-1 at 109–10; ECF No.
152-11 at 38–39, ¶ 107. Plaintiff also demanded a copy of the inspection of his route and noticed
that the inspection paperwork had been done in his name although Plaintiff himself had not
carried out the inspection. ECF No. 152 at 8; ¶ 59; ECF No. 152-1 at 110, ¶¶ 15–25, 111, ¶ 15–
25; ECF No. 157 at 36, ¶ 20; ECF No. 157-2 at 105, ¶¶ 17-25.
On March 12, 2015, Union Shop Steward Marco Toledo (“Toledo”), Plaintiff, Santos,
and Lugo had a meeting where Santos said to Plaintiff “with your physical conditions you should
go to work to another post office and when [you are] ready to work for real to bid back because
at this post office you have to come to work.” ECF No. 157 at 49, ¶ 75; ECF No. 157-17 at 1. In
the same meeting, Lugo also told the Plaintiff, “[Y]ou're just a cheater like Robert Rosado [a
retired letter carrier] who had an accident on every route he was on.” ECF No. 157 at 49, ¶ 75;
ECF No. 157-17 at 1. Eight days after this meeting, Santos yelled at letter carrier Víctor Rivera

11

Because Moyeno was involved in Plaintiff’s January 8, 2015 accident instead of just Santos, a jury could
reasonably conclude that this special arrangement was created after January 8, 2015.

11

to “keep away from [Plaintiff] or he would take 4 hours to case his route.” ECF 157 at 38–39, ¶
28–29; ECF No. 157-21 at 1; ECF No. 157-7 at 47, ¶¶ 11–22.
On April 6, 2015, Plaintiff made initial contact with the EEOC by requesting an
appointment with an EEOC dispute resolution specialist. ECF No. 152 at 2, ¶ 9; ECF No. 152-6
at 1; ECF No. 157 at 3, ¶ 9; ECF No. 157-5 at 1. Subsequently, Plaintiff participated in another
meeting with Lugo, Santos, and Toledo, during which Lugo referred to Plaintiff as a “repeat
offender,” Santos referred to him as a “hustler,” and Plaintiff was told the nickname that Lugo
and Santos had for him: “Trucoman56.” ECF No. 157 at 32, ¶ 10; ECF No. 157-2 at 54, ¶¶ 13–
22.
On April 13, 2015, Plaintiff drove a postal vehicle to deliver the mail on his assigned
route with an expired license. ECF No. 152 at 11, ¶ 91; ECF No. 152-21 at 00116. The next day,
on April 14, 2015, Santos asked to see Plaintiff’s driver’s license which had expired on April 11,
2015, and Santos therefore suspended Plaintiff’s driving privileges. ECF No. 152 at 11, ¶ 92; ¶
93; ECF No. 152-21 at 00116; ECF No. 157 at 27, ¶ 93. That same day, April, 14, 2015, USPS
employee Melvin Rivera Nieves heard Santos give Plaintiff bids for routes telling him that
Plaintiff “might read them out and you might find something that you can do in some other
station. And if you get any better, you can bid back to Bayamón Branch when you are fit for
duty.” ECF No. 157 at 48, ¶ 71; ECF No. 157-19; ECF No. 157-23 at 21, ¶¶ 2–6; 22, ¶¶ 2–10.
On April 14, 2015 and April 15, 2015, Plaintiff was absent from work, either partially or
totally, and Santos placed him on Leave Without Pay (“LWOP”) pursuant to the Postal Labor
Relations Manual. ECF No. 152 at 11, ¶ 95; ECF No. 152-23 at 001, 003–004. On April 16,
2015 Plaintiff was marked absent without leave (“AWOL”) for his failure to report his absence
through the automated phone system or to contact his supervisor to notify his absence. ECF No.

12

152 at 11, ¶ 95; ECF No. 152-23 at 001. On April 17, 2015, Plaintiff filed an “Information for
Pre-Complaint Counseling” after his initial contact with the EEOC wherein Plaintiff alleged
discrimination based on “physical disability” and “age” and requested a “proper limited duty
agreement or a fair job accommodation.” ECF No. 157-5 at 1, 5. Thereafter, on April 23, 2015,
Plaintiff had his initial EEOC interview. ECF No. 157 at 2, ¶ 10; ECF No. 157 at 3, ¶ 10. On
April 28, 2015, Plaintiff was again marked AWOL for his failure to report his absence from
work through the automated phone system or to contact his supervisor to notify his absence. ECF
No. 152 at 11, ¶ 95; ECF No. 152-23 at 001.
On May 7, 2015 Plaintiff as issued a Letter of Warning for failure to follow safety
procedures for driving with an expired license. ECF No. 152 at 11, ¶ 94; ECF No. 157 at 27, ¶
94. On May 14, 2015, Plaintiff was issued a Notice of 7-day Suspension (No Time Off) and no
loss of pay, alleging that Plaintiff had failed to notify some of his absences or was AWOL. ECF
No. 152 at 11, ¶ 97; ECF No. 152-23 at 001; ECF No. 157 at 31 at ¶ 5A; ECF No. 157-16 at 1.
However, both of Plaintiff’s April 16 and April 28, 2015 AWOL markings were removed after
Plaintiff filed a successful grievance. ECF No. 152 at 11, ¶ 90; ECF No. 157 at 26, ¶ 90.
On July 2, 2015 following pre-complaint processing, the EEOC issued Plaintiff a Notice
of Right to File an Individual EEOC Complaint. ECF No. 152 at 2, ¶ 11; ECF No. 157 at 4, ¶ 11.
Accordingly, on July 24, 2015, Plaintiff filed a formal EEOC complaint alleging discrimination
based on age and disability, hostile work environment, retaliation, and violation of his FMLA
rights. ECF No. 152 at 1, ¶ 4; 2, ¶ 12; ECF No. 157 at 5, ¶ 16; ECF No. 152-3 at 001, 005, 009,
010. Plaintiff identified Santos and Lugo as the responsible management officials. ECF No. 152
at 1, ¶ 5; ECF No. 152-3 at 001.

13

Plaintiff was once again placed on limited duties from August 6, 2015 through September
3, 2015 because of a “right sprain [in the] hip & thi[g]h. ECF No. 157-28 at 7. On August 17,
2015, the EEOC sent Plaintiff a letter (the “Letter of Acceptance”) notifying the claims accepted
for Investigation. ECF No. 152 at 2, ¶ 13; ECF No. 152-7 at 1–2. In the Letter of Acceptance the
EEOC notified Plaintiff that incidents occurring 45 days before his EEOC contact were untimely.
ECF No. 152 at 2, ¶ 14; ECF No. 157 at 4, ¶ 14. Forty-five days before Plaintiff’s initial EEOC
contact on April 6, 2015 was February 20, 2015. ECF No. 152 at 2, ¶ 14; ECF No. 157 at 4, ¶ 14.
By October 16, 2015, Santos was working at another Post Office in Canóvanas, Puerto Rico.
ECF No. 152 at 2, ¶ 7; ECF No. 157 at 3, ¶ 7. 12 After Santos left, Dávila accommodated Plaintiff
by taking part of his Route 56 away and giving Plaintiff the buildings of Routes 5 and 6. ECF
No. 157 at 47, ¶ 70; ECF No. 157-8 at 86, ¶¶ 9–21.
On October 28, 2015, a grand jury returned an indictment against Plaintiff charging
violations for Theft of Government Property; and False Statements to Obtain Federal Employee
Compensation. ECF No. 152 at 10, ¶ 81; ECF No. 157 at 25, ¶ 81. The indictment was related to
the Federal Workers' Compensation forms (CA-17) and Application of Continuation of Pay
forms (CA-1) that had been submitted regarding Plaintiff’s January 8, 2015 knee injury. ECF
No. 152 at 8, ¶ 60; ECF No. 152-11 at 38–39; ECF No. 157-2 at 59, ¶¶ 12–24; ECF No. 158 at
17. The next day, on October 29, 2015, Plaintiff was arrested at the Bayamón Branch Post
Office. ECF No. 152 at 10, ¶ 82; ECF No. 157 at 25, ¶ 82.
On December 5, 2015, the EEOC completed the Report of Investigation (“ROI”) that was
sent to Plaintiff and the USPS. ECF No. 152 at 3, ¶ 18; ECF No. 157 at 5, ¶ 18. Following a jury
trial, on October 19, 2016, Plaintiff was acquitted of all federal criminal charges for which he

12

Plaintiff alleges that ‘Santos left the Bayamón Branch sometime in the summer of 2015” but cites to no evidence
in the record which supports this contention. ECF No. 158 at 27.

14

had been indicted. ECF No. 152 at 10, ¶ 84; ECF No. 157 at 25, ¶ 84. On January 28, 2017,
Plaintiff received the Final Agency Decision by USPS denying his EEOC claims. ECF No. 152
at 3, ¶ 19; ECF No. 157 at 5, ¶ 19.
III.

LEGAL STANDARD
A. Summary Judgment Standard
The purpose of summary judgment “is to pierce the boilerplate of the pleadings and assay

the parties’ proof in order to determine whether trial is actually required.” Wynne v. Tufts Univ.
Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992) (citations omitted). Summary judgment is
granted when the record 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). “A dispute is genuine if
the evidence about the fact is such that a reasonable jury could resolve the point in the favor of
the non-moving party. A fact is material if it has the potential of determining the outcome of the
litigation.” Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting
Rodríguez Rivera v. Federico Trilla Reg’l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)).
The party moving for summary judgment bears the burden of showing the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant presents a properly focused motion “averring ‘an absence of evidence to support the
nonmoving party’s case[,]’ [t]he burden then shifts to the nonmovant to establish the existence of
at least one fact issue which is both ‘genuine’ and ‘material.’” Griggs-Ryan v. Smith, 904 F.2d
112, 115 (1st Cir. 1990) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)).
For issues where the nonmoving party bears the ultimate burden of proof, the party cannot
merely “rely on an absence of competent evidence, but must affirmatively point to specific facts
[in the record] that demonstrate the existence of an authentic dispute.” McCarthy v. Nw.

15

Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) (citation omitted). The party need not, however,
“rely only on uncontradicted evidence . . . . So long as the [party]’s evidence is both cognizable
and sufficiently strong to support a verdict in her favor, the factfinder must be allowed to
determine which version of the facts is most compelling.” Calero Cerezo v. U.S. Dep’t of Justice,
355 F.3d 6, 19 (1st Cir. 2004) (emphasis in original) (citation omitted).
In assessing a motion for summary judgment, the court “must view the entire record in
the light most hospitable to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Griggs-Ryan, 904 F.2d at 115. There is “no room for credibility
determinations, no room for the measured weighing of conflicting evidence such as the trial
process entails, [and] no room for the judge to superimpose his own ideas of probability and
likelihood.” Greenburg v. P. R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). The
court may, however, safely ignore “conclusory allegations, improbable inferences, and
unsupported speculation.” Medina Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990) (citations omitted).
B. The McDonnell Douglas Burden Shifting Framework
In all cases involving age discrimination, disability discrimination, FMLA claims, and
retaliation, a plaintiff may either prove his case by presenting “direct evidence” or the plaintiff
may use indirect evidence “by using the prima facie case and burden shifting methods” from
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Ramos Echevarría v. Pichis, Inc., 659
F.3d 182, 186 (1st Cir. 2011) (citing Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir.
1996)); (internal quotation marks omitted) (disability discrimination claims); Del Valle Santana
v. Servicios Legales De Puerto Rico, Inc., 804 F.3d 127, 130 (1st Cir. 2015); Bonefont
Igaravidez v. International Shipping Corp., 659 F.3d 120, 123–24 (1st Cir. 2011) (age

16

discrimination claims under ADEA); Hodgens v. General Dynamics Corp., 144 F.3d 151, 160
(1st Cir. 1998); González Rodríguez v. Potter, 605 F. Supp. 2d 349, 370 (D.P.R. 2009) (FMLA
claims and Title VII retaliation claims). The first step under the McDonnell Douglas framework
is for a plaintiff is to establish a prima facie case of discrimination. “A prima facie case must be
custom-tailored to fit both the particular animus (e.g., age discrimination, sex discrimination,
race discrimination) and the particular type of employment decision involved (e.g., failure to
hire, failure to promote, failure to retain).” Sánchez v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st
Cir. 1994). If the plaintiff is successful in establishing a prima facie case, there emerges a
rebuttable presumption of discrimination.
Once a prima facie case has been established, the inquiry moves to step two of the
McDonnell Douglas framework wherein the burden shifts to the defendant employer to articulate
a legitimate, non-discriminatory reason for the adverse employment action. Brennan v. GTE
Government Systems Corp., 150 F.3d 21, 26 (1st Cir. 1998). At step three, if the employer has
articulated a non-discriminatory reason, the McDonnell Douglas framework “drops out of the
picture” and the plaintiff once again shoulders the burden to demonstrate that the employer’s
legitimate reason was pretext, and that actual reason for the adverse employment action was the
employer’s discriminatory or retaliatory animus. Hernández Marrero v. Crowley American
Transport, Inc., 206 F. Supp. 2d 279, 287 (D.P.R. 2002) (citing Pagues Cahue v. Iberia Líneas
Aéreas de España, 82 F3d. 533, 536 (1996)); Fennel v. First Step Designs, Ltd., 83 F.3d 526, 535
(1st Cir. 1996) (citing Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991)). Even so,
“[o]n summary judgment, the need to order the presentation of proof is largely obviated, and a
court may often dispense with strict attention to the burden-shifting framework, focusing instead

17

on whether the evidence as a whole is sufficient to make out a jury question as to pretext and
discriminatory animus.” Fennel, 83 F.3d at 535 (citing Mesnick, 950 F.2d at 827).
IV.

ANALYSIS
A. AGE DISCRIMINATION, HARASSMENT, & HOSTILE WORK ENVIRONMENT UNDER
ADEA
The ADEA provides that it is unlawful for an employer to “discharge any individual or

otherwise discriminate against any individual . . . because of such individual's age.” 29 U.S.C. §
623(a)(1). To succeed in an ADEA suit, the Plaintiff must show by direct or circumstantial
evidence that age was the “but-for” cause of the challenged employer conduct. Gross v. FBL
Financial Services, Inc., 557 U.S. 167, 177 (2009). At the prima facie stage, a plaintiff’s burden
is “not onerous.” Brennan, 150 F.3d at 26 (citing Sánchez, 37 F.3d at 719). “All that is needed is
the production of admissible evidence which, if uncontradicted, would justify a legal conclusion
of discrimination.” Id. at 719. Defendant concedes that Plaintiff is a member of the protected
class of employees over 40 years old for the purposes of a suit for age discrimination or agerelated or age hostile work environment. 13 ECF No. 153 at 6; ECF No. 152 at 4, ¶ 29; ECF No.
157 at 8, ¶ 29. However, Defendant moves for summary judgment on all of Plaintiff’s age-based
claims, asserting that Plaintiff has failed to establish a prima facie claim of either age-based
hostile work environment or of age-based discrimination.

13
Despite acknowledging Plaintiff’s protected class membership, Defendant disputes whether Santos was aware of
Plaintiff’s age because Mr. Santos denied knowing Plaintiff’s age in his deposition. ECF No. 152-16 at 25, ¶¶ 11–
15. However, Plaintiff notes that Mr. Santos must have known Plaintiff’s age because it was listed on all his work
records. ECF No. 152-11 at 00073, ¶ 10. Making all reasonable inferences in favor of the Plaintiff, a reasonable jury
could conclude that Mr. Santos was aware of Plaintiff’s age, and the assertion that Mr. Santos lacked knowledge
cannot be the basis to grant Defendant’s motion for summary judgment on Plaintiff’s ADEA claims.

18

1. The Prima Facie Burden of Age-Based Hostile Work Environment &
Discrimination
a. Age-Based Hostile Work Environment
A hostile work environment claim may be pursued under ADEA. Collazo v. Nicholson,
535 F.3d 41, 44 (1st Cir.2008). The prima facie case of an ADEA hostile work environment
claim requires the plaintiff to produce evidence that “ (1) he is a member of the class protected
by the ADEA; (2) he was subjected to unwelcome harassment; (3) the harassment was based on
age; (4) the harassment was sufficiently pervasive or severe so as to alter the conditions of the
plaintiff's employment and create an abusive work environment; (5) the objectionable behavior
was both subjectively and objectively offensive, such that a reasonable person would find it
hostile or abusive; (6) that the plaintiff found it hostile or abusive; and (7) some basis for
employer liability has been established.” Gutiérrez Lines v. P.R. Elec. & Power Auth., 751 F.
Supp. 2d 327, 341–42 (D.P.R. 2010) (citing O'Rourke v. City of Providence, 235 F.3d 713, 728
(1st Cir.2001)).
In challenging Plaintiff’s harassment and hostile work environment claim, Defendant
argues that Plaintiff has failed to produce evidence that age was the basis for any harassment that
Plaintiff suffered. ECF No. 153 at 6, 7, 10, 12. 14 Not all verbal or physical harassment in the
workplace is prohibited by the ADEA, instead, only that harassment which is based on age.
Gutiérrez Lines, 751 F. Supp. 2d at 341 (“the harassment was based on age”). In opposing
Defendant’s motion for summary judgment, Plaintiff argues that Santos told him that he was
“too slow,” and mocked him in front of other employees because “he would take 4 hours to case

14

Regarding Plaintiff’s age-based discrimination claims, Defendant also argues that Plaintiff’s treatment was also
not so severe or pervasive to create a hostile working environment. ECF No. 153 at 6, 7. Even so, it is not necessary
to reach this issue because Plaintiff failed to cite any evidence in the record that Plaintiff’s mistreatment was based
on age.

19

his route.” ECF No. 158 at 23. 15 Statements ridiculing a person for being “slow” are not
necessarily statements based on age. A person might be “slow” for a variety of reasons,
regardless of whether they are young or old, and for reasons completely divorced from age. See
e.g. Youngs v. Meridian Pointe, 2010 WL 3937382, *3 (M.D. Fl. Oct. 6, 2010) (“the faciallyneutral comment that Youngs ‘moved too slow’ does not constitute direct evidence of age
discrimination.”); Dodson v. FedEx Corp. Servs., Inc., 2015 WL 1335894, *7 (C.D. Cal. Apr. 6,
2015) (“Plaintiff's allegations that Hahn commented that she was “too slow,” “taking too long,”
and needed to “speed it up” are facially neutral comments that, contrary to Plaintiff's argument,
do not suggest age discrimination.). 16 Evidence of mere statements to the effect that Plaintiff was
“slow,” even if uncontradicted, fail to justify the conclusion that the harassment Plaintiff
experienced was based on age.
Plaintiff also proffers other statements made by Santos that have nothing to do with age,
such as Santos’ statement that “because of my condition, how slow I was, maybe I would leave
the post office . . .” ECF No. 157-2 at 63–64. While these statements may show a connection to
disability, these statements fail to show any nexus between age and harassment. A young person,

15

With regard to Plaintiff, on an unidentified occasion or occasions, Santos would hurry up and yell at Plaintiff in
front of other employees, saying that Plaintiff was “too slow.” ECF No. 157 at 35, ¶ 17, ECF No. 157-2 at 62, ¶¶ 7–
16; 63, ¶¶ 1–2.
16
In contrast, courts have been willing to find that comments regarding a plaintiff’s slowness were made based on
the plaintiff’s age if there are other additional statements that indicate some connection to age. See e.g. Davis-Garett
v. Urban Outfitters, Inc., 921 F.3d 30, 47 (2d Cir. 2019) (“Finding a jury could “infer” that comments of “You're too
old,” “You don't have the energy,” and would not have “the stamina” to do the job were euphemisms for age.”);
Moore v. Castro, 192 F. Supp. 3d 18, 47 84 (Finding that workplace reprimands about slowness or forgetfulness
created a hostile work environment based on age, but that other comments such that plaintiff could not understand
his assignments “because of his age” tipped the balance in favor of Plaintiff in finding an issue of material fact on
age discrimination.); Sims v. MVM, Inc., 704 F.3d 1327, n. 11 (Finding that a reasonable juror could find the
employer was motivated by discriminatory animus based on “weak” evidence that the Plaintiff was told he was “old
and slow.”). However, in the present case, no other statements in the record have been cited by Plaintiff which
would provide any additional evidence that remarks about Plaintiff’s slowness had any connection to age.
Furthermore, even if there were any such statements, Plaintiff has not shown that they are more than stray remarks.
Nelson v. United Parcel Service, Inc., 337 Fed. Appx. 561, 563 (7th Cir. 2009) (holding that comments that the
plaintiff was “too old and too slow, as well as repeated references to him as Old Silver,’ are nothing more than
“stray remarks” disconnected from the decision to terminate Nelson and do not constitute an admission that he was
fired because of his age.”).

20

just as much as an older person, may suffer from conditions which affect their speed. Likewise,
Santos’ and Lugo’s statements calling Plaintiff a “repeat offender” and a “cheater” lack any
indication that they were related to Plaintiff’s age. Plaintiff nevertheless asserts that he knows
that the above statements were made to discriminate against him based on his age. ECF No. 157
at 6, ¶ 24; ECF No. 152-11 at 0010; 0036; 0085–86. However, such an assertion is purely
conclusory and constitutes unsupported speculation insufficient to create a genuine issue of
material fact to survive summary judgment. See Medina Muñoz, 896 F.2d at 8.
Finally, Plaintiff introduces evidence of a litany of other offensive behaviors to which
Santos subjected employees at the Bayamón Branch post office, but not Plaintiff directly. More
specifically, plaintiff brings evidence in support of the fact that most postal employees at the
Bayamón Branch considered Santos a bully and abrasive because of his treatment toward the
employees and some of the other supervisors. ECF No. 152 at 3, ¶ 25; ECF No. 157 at 6–7, ¶ 25.
While at the post office, Santos could be heard “sending people to hell” and would say on many
occasions, “Fuck the letter carriers. Let them arrive whenever they want. And whoever has a
problem, well, fuck them.” ECF No. 157 at 40, ¶ 33; 46–47, ¶ 66; ECF No. 157-8 at 129, ¶¶ 6–
20; ECF No. 157-22 at 66, ¶¶ 5–10; 85, ¶¶ 3–21. Santos had also called one mail carrier a “piece
of shit,” and invited fellow-supervisor Moyeno to “fight” at some undefined time. ECF No. 157
at 40, ¶ 33; ECF No. 157 at 42, ¶ 42; ECF No. 157-8 at 56, ¶¶ 10–15; ECF No. 157-22 at 66, ¶¶
5–10; 85, ¶¶ 3–21. Santos also said on many occasions “if [the USPS employees] didn’t like how
he was then they could step outside and solve the problems as men, because he was from
Carolina.” ECF No. 157 at 39, ¶¶ 30A; ECF No. 157-8 at 46, ¶¶ 15–25; 47, ¶¶ 1–5.
Because of these behaviors, plaintiff contends, many of the letter carriers did not get
along with Santos. ECF No. 157 at 41, ¶ 38; ECF No. 157-8 at 22, ¶¶ 3–7. On one unspecified

21

occasion, after Santos spoke in a way that some letter carriers found offensive, fourteen letter
carriers staged a boycott the next day. ECF No. 157 at 42, ¶ 44; ECF No. 157-8 at 61, ¶¶ 5–12.
As a result, in a labor-related management meeting held on an unspecified date, and with regards
to Santos, the Union stipulated that Santos could no longer be “yelling curse words out on the
floor,” including “son of a bitch, motherfucker, [and] fag . . . .” and that he “had to treat people
with respect and dignity.” ECF No. 157 at 38, ¶ 26; ECF No. 157-7 at 32, ¶¶ 2–25; 33, ¶¶ 21–25;
34, ¶ 1. 17
Despite the reprehensible lack of civility displayed by these behaviors, such as Santos’
generally unpleasant and improper behavior of yelling “curse words” or challenging other
employees to fights, these incidents have no connection to age. See ECF No. 157 at 38, ¶ 26;
ECF No. 157-7 at 32, ¶¶ 2–25; 33, ¶¶ 21–25; 34, ¶ 1. In sum, nothing Santos did to Plaintiff or
any other employee hints that age was the reason for Santos’ behavior. Because Plaintiff fails to
produce admissible evidence showing that either Santos’ or Lugo’s allegedly harassing
statements or acts had any connection to age, Plaintiff fails to establish a prima facie case of a
hostile work environment based on age.
b. Age-Based Discrimination
The prima facie case of age discrimination under the ADEA requires a plaintiff to
produce evidence that demonstrates (1) he was at least 40 years old; (2) his work was “sufficient
to meet the employer’s legitimate expectations”; (3) his employer took adverse action against
him; and (4) “the employer did not treat age neutrally in taking the adverse action.” Del Valle
Santana, 804 F.3d at 130; Brennan, 150 F.3d at 26. Defendant does not allege that Plaintiff was

17

Notwithstanding Santos’ behavior, Lugo did not discipline him. ECF No. 157 at 39, ¶ 30; 47, ¶ 67; ECF No. 157
at 69, ¶¶ 3–9; ECF No. 157-8 at 130, ¶¶ 2–12.

22

unable to perform as a letter carrier. ECF No. 153 at 18. Defendant merely argues that Plaintiff
cites no evidence that “he was treated less favorably than substantially younger employees . . .”
or that Plaintiff has identified any similarly situated employee under 40 who was treated in a
more favorable way. ECF No. 152 at 4, ¶ 32; ECF No. 152-8 at 143; ECF No. 153 at 24.
Plaintiff controverts Defendant’s argument asserting that Santos’ “buddies” were treated
better than Plaintiff and that any letter carriers that were Santos’ “friends” would receive better
treatment. ECF No. 157 at 41, ¶ 41; ECF No. 157-8 a 57, ¶ 25; 58. ¶¶ 1–2. However, not
belonging to Santos’ group of friends is not a protected class. Plaintiff cites no evidence as to the
age of Santos’ “buddies” that would create a reasonable inference that Santos’ friends’
preferential treatment was somehow connected to their age. Therefore, the mere fact that Santos
treated his friends better, without more, could not lead a reasonable jury to conclude that he did
not treat age neutrally.
Secondly, Plaintiff contends that he was subject to a “special procedure” whereby all
disciplinary and injury matters for Plaintiff had to go through Santos. ECF No. 158 at 24; ECF
No. 157 at 42, ¶ 46; 47, ¶ 68; ECF No. 157-8 at 68, ¶¶ 22–24; 134, ¶¶ 1–19. Even assuming that
Plaintiff was the only employee subject to this special procedure, Plaintiff has cited to no
evidence in the record that shows this procedure had anything to do with age, thereby not
treating age neutrally. This special procedure could have been imposed on Plaintiff for many
different reasons, and Plaintiff cites to no evidence that would lead to a reasonable inference that
his special treatment was because of age. Plaintiff likewise cites no evidence of any similarly
situated employee under 40 to which Plaintiff’s treatment can be compared. Thus, no reasonable
inference can be drawn that Plaintiff’s “special” arrangement under Santos had anything to do
with his age and that his employer’s actions did not treat age neutrally.

23

Finally, Plaintiff contends that the inspection of Plaintiff’s route by a younger employee
“with no physical injuries or limitations” is evidence of discrimination based on age and
disability. ECF No. 158 at 24; ECF No. 157 at 25–26, ¶ 87; ECF No. 157-17 at 1. 18 Here,
Plaintiff has shown that the route inspection conducted in his name was completed by a muchyounger mail carrier, who was 28 years old. ECF No. ECF No. 157-17 at 1. However, Plaintiff
does not explain why assigning a route inspection to somebody else while Plaintiff was out on
leave constitutes an adverse employment action. Yet, even if arguendo, with regard to the route
inspection alone, Plaintiff has adduced enough evidence to proceed to the second step of the
McDonnell Douglas framework, as discussed further below, Plaintiff’s age discrimination claim
ultimately fails.
2. Defendant’s Legitimate, Non-Discriminatory Reason
Once a plaintiff has made a prima facie case creating a presumption of discrimination, the
employer must then offer a legitimate, nondiscriminatory reason for the adverse action to
overcome the presumption. Mesnick, 950 F.2d at 825. If the employer fails, “then the inference
of discrimination created by the prima case persists, and the employer's attempt to secure
summary judgment should be rebuffed.” Id. However, at step two, the employer’s burden to
show a legitimate, nondiscriminatory reason is “one of production not persuasion” wherein “the
employer need do no more than articulate a reason which, on its face, would justify a
conclusion” that the action was taken for a nondiscriminatory motive. Bonefont Igaravidez, 659
F.3d at 124 (citing Dávila v. Corporación de P.R. Para La Difusión Pública, 498 F.3d 9, 16 (1st
Cir. 2007)).

18

Plaintiff also alleges that comments about his slowness were somehow related to the inspection by the younger
carrier. ECF No. 157-2 at 62, ¶¶ 24–25; 63, ¶¶ 1–2. However, Plaintiff has not pointed to any evidence to suggest
that the substitute route inspector was assigned the task because he was faster than Plaintiff nor of even at least a
temporal proximity between the decision to conduct the route inspection and the remarks about slowness.

24

Defendant asserts that no decision by Santos, like the route inspection assignment
temporarily filled by another employee during Plaintiff’s 45-day leave of absence, was made
taking into account Plaintiff’s age or disability status. ECF No. 152 at 4, ¶ 33; ECF No. 152-4 at
007. According to Santos, unassigned letter carriers bid to cover a route temporarily when the
regular carrier is on leave for more than five days. ECF No. 152-4 at 007. The letter carrier who
successfully bid to cover Plaintiff’s route while Plaintiff was on leave was Jorge Vélez
(‘Mr. Vélez”). ECF No. 152-4 at 007. While Plaintiff was out on leave and Mr. Vélez was
covering Plaintiff’s route, the day arrived to perform the yearly required “Street Observation” of
Plaintiff’s route. ECF No. 152-4 at 007. Because Mr. Vélez was covering Plaintiff’s route while
Plaintiff was on leave, Mr. Vélez performed the yearly street observation. ECF No. 152-4 at 007.
However, the paperwork submitted after the street observation requires the name of the regularly
assigned employee of the route. ECF No. 152-4 at 007. Therefore, because Mr. Vélez was only
temporarily covering Plaintiff’s route, Plaintiff’s name was put on the paperwork rather than
Mr. Vélez’s. ECF No. 152-4 at 007. Furthermore, Santos explains that “[r]oute adjustments are
not made on the basis of these ‘Street Observation[s].’” ECF No. 152-4 at 007. Santos’
explanation successfully articulates on its face a legitimate and non-discriminatory reason why
Plaintiff’s route inspection was conducted by a younger employee. As such, Defendant has
fulfilled its burden of production to show a legitimate nondiscriminatory reason defeating the
presumption of age discrimination.
3. Proof of Pretext
Once Plaintiff and Defendant have made a showing as to the first two steps of the
McDonnell Douglas framework, at step three “courts confronted by summary judgment motions
must at this point focus on the ultimate question, scrapping the burden-shifting framework in

25

favor of considering the evidence as a whole.” Mesnick, 950 F.2d at 827. Once the presumption
has been defeated by a legitimate and nondiscriminatory reason, a plaintiff must “elucidate
specific facts which would enable a jury to find that the reason given is not only a sham, but a
sham intended to cover up the employer's real motive: age discrimination.” Soto Feliciano v.
Villa Cofresí Hotels, Inc., 779 F.3d 19, 25 (1st Cir. 2015) (citing Mesnick, 950 F.2d at 824).
Accordingly, “a plaintiff must offer some minimally sufficient evidence, direct or indirect, both
of pretext and of the employer's discriminatory animus” to prevail over a motion for summary
judgment. Mesnick, 950 F.2d at 827.
Plaintiff fails to produce any evidence that would enable a jury to find that the
Defendant’s proffered reason is a sham to cover discriminatory animus. The mere fact that a
younger letter carrier was used to inspect Plaintiff’s route is not enough to show that Defendant’s
proffered reason was pretext. During the time that Plaintiff worked at the Bayamón Branch Post
Office most of the letter carriers were over 40 years old. ECF No. 152-15 at 63, ¶¶ 15–25; ¶¶ 1–
19. However, most of the letter carriers at the Bayamón Branch were younger than the Plaintiff.
ECF No. 157 at 38, ¶ 25; ECF No. 157-7 at 15, ¶¶ 9–25, 16, ¶¶ 1–2. Accordingly, a younger
carrier was likely to have bid to take Plaintiff’s route while he was absent from the office, simply
because most of the letter carriers were younger than Plaintiff. As such, even considering the
route inspection in the context with the rest of the evidence as a whole, none of the other
statements or comments made to Plaintiff point to any connection to age, and so they do not
support an assertion of age-based animus when examined together with the route inspection.
In sum, the mere fact that a younger employee was used for the inspection alongside
unsupported speculation about Santos and Lugo’s motive, in context with the evidence as a
whole, does not satisfy Plaintiff’s minimal burden to show that his superiors’ reasons were a

26

sham used to cover a discriminatory animus. Because Plaintiff fails to cite evidence which could
convince a reasonable jury that age was the basis for any discriminatory or harassing treatment,
he fails to sustain his burden of showing pretext for discriminatory animus. Therefore, Plaintiff’s
claims for discrimination and hostile work environment under ADEA must be dismissed.
B. DISABILITY CLAIMS UNDER THE REHABILITATION ACT
1. Whether Plaintiff is “Disabled” Under the Rehabilitation Act
As a threshold manner, Defendant urges that Plaintiff is not disabled under the definition
of the Rehabilitation Act. ECF No. 153 at 12–15. Each of Plaintiff’s hostile work environment,
discrimination, and failure to accommodate claims under the Rehabilitation Act require that the
Plaintiff be considered “disabled” under the Rehabilitation Act. See Marshall v. Potter, 2009 WL
3200046, at *17–18 (D.P.R. Sept. 30, 2009) (“To establish a claim of discrimination under the
[Rehabilitation] act, a plaintiff must prove . . . that he is disabled within the meaning of the act . .
. .”); Calero Cerezo, 355 F.3d at 20 (“To assert a claim for failure to accommodate under the
Rehabilitation Act, a plaintiff must establish . . . that he suffers from a “disability” within the
meaning of the statute . . . .”); McDonough v. Donahoe, 673 F.3d 41, 49 (1st Cir. 2012) (“In
order to succeed on her hostile work environment claim [plaintiff] must show the following . . .
[that] she was disabled as defined under the Rehabilitation Act . . . .”).
Under the definition of the Rehabilitation Act, as amended by ADA Amendments Act of
2008 (ADAAA), 19 an individual qualifies as disabled if he has a physical or mental impairment
that substantially limits one or more major life activities, the plaintiff has a record of such an

19
The same standards apply to claims under the Rehabilitation Act and the Americans with Disabilities Act (“ADA”).
Calero Cerezo, 335 F.3d at 11 n. 1. Therefore, courts look to caselaw regarding the ADA and the Rehabilitation Act
interchangeably. See Parker v. Universidad de Puerto Rico, 225 F.3d 1, 4 (1st Cir. 2000) (“Title II [of the ADA], the
provision at issue here, prohibits discrimination against persons with disabilities by “public entities,” and is modeled
on § 504 of the Rehabilitation Act . . . applying Title II, therefore, we rely interchangeably on decisional law applying
§ 504.”).

27

impairment, or if the plaintiff is regarded as having such an impairment. Mancini v. City of
Providence by and through Lombardi, 909 F.3d 32, 39 (1st Cir. 2018) (citing 42 U.S.C. §
12102(1)(A)–(1)(C)). 20 A physical impairment is “[a]ny physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or more body systems.” Id. (citing 29
C.F.R. § 1630.2(h)). A plaintiff’s impairment must create a substantial limitation on one or more
of the plaintiff’s major life activities. Id. The ADAAA provides an unexhaustive list of what
qualifies as a “major life activity,” which includes, “caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. §
12102(2)(A). At summary judgment, a plaintiff must identify the major life activity being
affected and provide enough evidence to “create a genuine issue of material fact as to whether
his impairment substantially limits one or more major life activities.” Mancini, 909 F.3d at 42–
43.
It is a “relatively low bar” at summary judgment for a plaintiff to show evidence of his
limitation, and a “plaintiff’s detailed description of his limitations, standing alone, often will be
sufficient.” Id. at 44 (citing Williams v. Tarrant Cty. Coll. Dist., 717 F. App'x 440, 448 (5th Cir.
2018)). “A relatively low bar, though, is not the same as no bar at all. [A plaintiff] must still be

20
Generally, a plaintiff may also assert a prima facie case that they were “regarded as” disabled under the
McDonnell Douglas framework. Mancini, 909 F.3d at 46. A plaintiff may be regarded as disabled under the
Rehabilitation Act when the plaintiff presents a claim of “an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). When a
plaintiff asserts they were regarded as disabled, “[i]t is not necessary for the plaintiff to prove that the impairment
limits or is perceived to limit a major life activity.” Mancini, 909 F.3d at 46. However, while Plaintiff argues that he
is a qualified individual with a disability he does not argue in his motion in opposition to Defendant’s motion for
summary judgment that he was “regarded as” or “perceived” as disabled. Plaintiff merely asserts that his limited
duties and accommodations are proof that he is disabled under the Rehabilitation Act. ECF No. 158 at 10; 26.
Because Plaintiff did not raise that he was regarded as or perceived as disabled at summary judgment, that argument
will not be taken into consideration. Mancini, 909 F.3d at 46 (“Courts are entitled to expect represented parties to
incorporate all relevant arguments in the papers that directly address a pending motion.”) (citing McCoy v.
Massachusetts Institute of Technology, 950 F.2d 13, 22, 22 n. 7 (1st Cir. 1991) (“Overburdened trial judges cannot
be expected to be mind readers.”).

28

able to point to some competent evidence in the summary judgment record sufficient to show
substantial limitation.” Mancini, 909 F.3d at 44. Importantly, “a determination as to whether this
‘substantially limits’ requirement has been satisfied calls for a comparison between the plaintiff's
limitations and those of the majority of people in the general population.” Mullen v. New
Balance Athletics, Inc., 2019 WL 958370 at *5 (D. Me. Feb. 27, 2019).
This court has previously cited to the EEOC proposed rules as an indicator of
Congressional intent regarding whether a certain condition qualifies as a substantial limitation in
a major life activity to constitute a disability under the ADAAA. García Hicks v. Vocational
Rehabilitation Admin., 148 F. Supp. 3d 157, 167 (D.P.R. 2015); Mercado Córdova v. Walmart
Puerto Rico, Inc., 369 F. Supp. 3d 336, 352–53 (D.P.R. 2019) (both citing EEOC Proposed
Rules, 74 Fed. Reg. at 48442). Under the EEOC proposed regulations, “a back impairment is
sometimes considered a disability.” Mercado Córdova, 369 F. Supp. 3d at 352 (citing EEOC
Proposed Rules, 74 Fed. Reg. at 48442). Of particular applicability in this case, this court has
recognized that under the EEOC proposed rules, “an individual with a back impairment that
limits standing, walking, or lifting over twenty pounds and that is expected to last for several
months is an individual with a disability.” Garcia Hicks, 148 F. Supp. 3d at 167 (citing EEOC
Proposed Rules, 74 Fed. Reg. at 48442); see also Mercado Córdova, 369 F. Supp. 3d at 353.
In this case, the Plaintiff has cited sufficient to create a genuine issue of material fact as
to whether he was substantially limited in the major life activity as recognized by this court and
the EEOC proposed rules. It is undisputed that before 2013 Plaintiff had not been diagnosed with
a permanent medical condition. ECF No. 152 at 7, ¶ 57; ECF No. 157 at 16, ¶ 57. However, in
his complaint, Plaintiff alleges that he is “restricted in his multiple major life activities, including
but not limited to, the condition, manner and duration under which he can move, walk and

29

interact with others, as compared to the ability of a person in the general population to perform
these activities.” ECF No. 28 at 26. Furthermore, Plaintiff asserted that “[h]is limitations
include[ed] walking not more than 3-4 hours a day, not carrying more than 20 pounds and no use
of shoulder bag or satchel . . . .” ECF No. 28 at 6.
In support of his argument that his limitations constituted disability, Plaintiff cites to his
Duty Status Reports (“CA-17s”) showing that he was placed on limited duties and
accommodated. ECF No. 158 at 26. The record evidence indicates that Plaintiff was placed on
limited duties from September 11, 2013 through November 6, 2013 because of “bulging disk C3C4” and “[p]aracentral disprotrusion C5-C6.” ECF No. 157-28 at 3. The CA-17s which were
submitted as record evidence also indicate that in December 2013, June 2014, and July 2014,
Plaintiff’s physicians reported that Plaintiff suffered a herniated disk and complained of severe
back and neck pain and left leg numbness. ECF No. 157-28 at 4–6.
Accordingly, from September 11, 2013 to November 6, 2013 Plaintiff’s physicians
assessed that Plaintiff could only lift 15 pounds continuously and 40 pounds intermittently for
two hours per day. ECF No. 157-28 at 3. However, from December 10, 2013 to January 31,
2014, June 9, 2014 to July 21, 2014, and July 31, 2014 to August 26, 2014, Plaintiff’s physicians
indicated in the associated CA-17s that Plaintiff was only able to lift 15 pounds continuously,
and 20 pounds intermittently for two hours a day. ECF No. 157-28 at 4–6. During all the above
periods, the physicians assessed that Plaintiff could walk for up to seven hours a day. ECF No.
157-28 at 4–6. For that reason, during the same periods established above, Plaintiff was given
“specific limited duties” including that he not work “overtime.” ECF No. 157-28 at 3–6.
Beginning on December 2013, when Plaintiff was assessed to be only able to lift 20 pounds

30

intermittently, the CA-17s for that date and all subsequent dates also specify that plaintiff should
not use a shoulder “satchel.” ECF No. 157-28 at 4–6.
Plaintiff has succeeded in demonstrating evidence which creates a reasonable dispute of
fact that he suffers from a back impairment. The same evidence indicates that Plaintiff was
affected by this back impairment for at least several months from September 2013 to November
2014 and from June to August 2014. Furthermore, Plaintiff’s impairments limited his lifting
ability to only 20 pounds at intermittent intervals and he has not been able to use his shoulder
satchel while completing his route. As previously pronounced by this court, an individual with a
back impairment that “limits lifting over twenty pounds and that is expected to last for several
months is an individual with a disability.” Garcia Hicks, 148 F. Supp. 3d at 167 (citing EEOC
Proposed Rules, 74 Fed. Reg. at 48442); see also Mercado Córdova, 369 F. Supp. 3d at 353.
Therefore, it is clear that Plaintiff has succeeded in producing evidence which creates a genuine
issue of material fact as to whether his impairment substantially limits one or more major life
activities. A reasonable jury could conclude that Plaintiff was substantially limited in his ability
to lift and was therefore disabled. 21
2. The Prima Facie Cases of Failure to Accommodate, Disability Discrimination,
and Disability-Based Hostile Work Environment.
Plaintiff has demonstrated a dispute of material fact with regard to the first element of
each of his Rehabilitation Act claims for failure to accommodate, disability discrimination, and
disability-based hostile work environment. Marshall, 2009 WL 3200046, at *17–18; Calero

21

It is less clear whether Plaintiff is substantially limited in his ability to walk. The CA-17s to which Plaintiff cites
indicate that Plaintiff could walk for up to seven hours a day—not the three to four hours a day which he alleges in
his complaint. ECF No. 157-28 at 4–6. The first time that a CA-17 in the record indicates that Plaintiff could only
walk for four hours a day was in August of 2015—long after the allegedly discriminatory or retaliatory actions taken
against him that form the basis of this case. ECF No. 157-28 at 7. Plaintiff nevertheless introduced other evidence
that his accident on January 8, 2015 limited the arc of movement in his knee from 0 to 70 degrees. ECF No. 157 at
35, ¶ 16; ECF No. 157-15 at 54, ¶¶ 12–15; 55, ¶¶ 2–16.

31

Cerezo, 355 F.3d at 20; McDonough, 673 F.3d at 49. The court now turns to the rest of the
elements in the prima facie cases of each claim–the first step under the McDonnell Douglas test.
a. Failure to Accommodate
After establishing a dispute of material fact as to the first element, to assert a prima facie
claim under the Rehabilitation Act for failure to accommodate, a plaintiff must also demonstrate
a dispute of material fact that the plaintiff was able to perform the essential functions of his job;
and despite knowing about the plaintiff’s disability, the defendant did not offer a reasonable
accommodation to the Plaintiff. Calero Cerezo, 355 F.3d at 20. In this case, there is no dispute
that Plaintiff was able to perform the essential functions of his job. ECF No. 153 at 14. Nor does
Defendant argue that Plaintiff’s supervisors were not aware of his alleged physical limitations.
Instead, Defendant argues that there is no dispute of material fact that USPS did try to
accommodate Plaintiff when Plaintiff claimed he was injured. ECF No. 153 at 18. Defendant
also argues that Plaintiff’s claims for having been denied reasonable accommodations are
untimely because all incidents leading to those claims occurred more than 45 days before
Plaintiff’s April 6, 2015 EEOC contact. ECF No. 153 at 15.
Although the First Circuit has not yet decided directly whether a federal employee
bringing an action under the Rehabilitation Act must exhaust administrative remedies before
filing suit in court, it has noted that other circuits “have uniformly held that a federal employee
wishing to bring suit under the Rehabilitation Act must first exhaust administrative remedies.”
Rivera Muñoz v. Shinseki, 212 F. Supp. 3d 306, 309 (D.P.R. 2016); Vázquez Rivera v. Figueroa,
759 F.3d 44, 47 n. 2 (1st Cir. 2014); see also Bartlett v. Department of the Treasury (I.R.S.), 749
F.3d 1, 8 (1st Cir. 2014). Therefore, in order to properly exhaust his administrative remedies, an
employee must initiate contact with an EEOC counselor within 45 days of the allegedly

32

discriminatory act. Green v. Brennan, 578 U.S. 547, 553 (2016); Velázquez Rivera v. Danzig,
234 F.3d 790, 794 (1st Cir. 2000); see also Bartlett, 749 U.S. at 3; 29 CFR § 1614.105(a)(1). 22
The parties do not dispute that the USPS did in fact accommodate Plaintiff with limited
duties from September 11, 2013 through November 6, 2013, from December 11, 2013 until
January 31, 2014, from June 9, 2014 until July 21, 2014, and from July 31 2014, until August 26,
2014. Furthermore, after the allegedly discriminatory and retaliatory events at issue in this case,
Plaintiff was again placed on limited duties from August 6, 2015 through September 3, 2015.
Plaintiff produced evidence which tends to show that he was first denied reasonable
accommodations on August 19, 2014 when he informed Santos of his accommodation
arrangements with Lugo, but Santos told Plaintiff that Lugo could “stick” the arrangement “up
his ass.” ECF No. 157-22 at 101, ¶¶ 2–16. Subsequently, on August 22, 2014 and October 1,
2014, when Plaintiff requested “auxiliary assistance” for his route, Santos denied both requests.
ECF No. 157 at 30, ¶ 3A–4; ECF No. 157-6 at 2, ¶ 4–5. Plaintiff also raises his OWCP claim
which he submitted on November 24, 2014 but which Manager Lugo controverted on December
3, 2014. ECF 152 at 7, ¶ 50; ECF No. 152-1 at 181, ¶¶ 3–25; ECF No. 152-5 at 151, ¶¶ 1–14;
ECF No. 152-20 at 1; ECF No. 157 at 15, ¶ 50. The parties do not dispute that the EEOC notified
Plaintiff that incidents which had occurred 45 days before his EEOC contact were untimely, and
that February 20, 2015 was the date falling 45 days before Plaintiff’s initial contact with an

22

Defendant only raised an exhaustion argument with regard to Plaintiff’s failure to accommodate claims. Even if
Defendant did not intend to limit the argument to that claim, with regard to harassment and hostile work
environment, “[s]o long as one instance of harassment falls within the statutory limitations period . . . the entire time
period of the hostile environment may be considered by a court for the purposes of determining liability.” Nieves
Borges v. El Conquistador Partnership, L.P., S.E., 936 F.3d 1, 8 (1st Cir. 2019) (citing Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 117 (2002); Franchina v. City of Providence, 881 F.3d 32, 47 (1st Cir. 2018) (internal
quotations omitted)). Harassment can constitute an adverse employment action for both claims of discrimination and
hostile work environment. Colón Fontanez v. Municipality of San Juan, 660 F.3d 17, 37 (1st Cir. 2011); see also
Noviello. Because several instances of harassment allegedly based on disability occurred after February 20, 2015,
Plaintiff’s Rehabilitation Act claims based on disability discrimination and disability-based hostile work
environment are not precluded by the 45-day contact requirement, as further discussed below.

33

EEOC counselor. 23 ECF No. 152 at 2, ¶ 14; ECF No. 157 at 4, ¶ 14. Each incident which
occurred on August 19, August 22, October 1, and December 3, 2014 all happened before
February 20, 2015, and Plaintiff therefore failed to contact an EEOC counselor within 45 days of
these allegedly discriminatory acts. As such, Plaintiff has failed to exhaust his administrative
remedies with regard to these incidents and they cannot form a basis for a claim for failure to
accommodate. 24
The only clearly identifiable request for reasonable accommodation that occurred after
February 20, 2015 was when Plaintiff submitted a CA-17 form on February 27, 2015 following
his January 8, 2015 accident. ECF No. 157 at 17, ¶ 59; ECF No. 152-1 at 109–10; ECF No. 15211 at 38–39, ¶ 107. However, Plaintiff points to no evidence in the record, nor does he even
allege that he was denied reasonable accommodations or limited duties in relation to his January
8, 2015 injury. 25
Finally, Plaintiff testified in his deposition, and Defendant does not dispute, that on the
route Plaintiff worked in 2014 and 2015, the USPS did not take the heavy packages off of his
route in accordance with Plaintiff’s lifting limitations. ECF No. 157 at 32, ¶ 9; ECF No. 157-2 at
52, ¶¶ 17–24. Plaintiff also testified that sometimes he was forced to take packages that were too
heavy for his limitations. ECF No. 157-2 at 53, ¶¶ 9–17. While Plaintiff does not explicitly

23

Plaintiff acknowledges that the letter was sent and that it contained the above information, but the Plaintiff
disputes that it has a preclusive effect on the above litigation. However, despite acknowledging the letter and its
contents, the Plaintiff does not raise any argument based on equitable tolling or equitable estoppel for his denial of
reasonable accommodations. See e.g. Stubbe v. McDonough, 2022 WL 705489, *4 (D. Mass. 2022); 29 C.F.R. §
1614.105(a)(2). Instead, Plaintiff argues that Fantini v. Salem State Coll., 557 F.3d 22, 26–27 (1st Cir. 2009)
prevents any preclusive exhaustion of remedies argument. However, Fantini is inapposite as it does not address or
even mention the 45-day requirement described above.
24
Plaintiff may, however, draw on these events to show disability-based harassment and hostile work environment.
Nieves Borges, 936 F.3d at 8; supra note 20.
25
Indeed, the CA-17 from February 27, 2015 is not included in the record by either party. The only allegations
regarding Plaintiff’s request for accommodation after his January 8, 2015 accident involve a claim that Santos and
Lugo fabricated a criminal case against him with regard to documents involved in that accident. Plaintiff, however,
does not allege or show proof that he was denied any reasonable accommodations in connection to his January 8,
2015 accident.

34

identify the dates on which the heavy packages were not taken off his route, Plaintiff testified
that it was done on the route he worked in 2014 and 2015. ECF No. 157-2 at 52, ¶¶ 17–24. It is
undisputed that Plaintiff worked Route 56 between August 2014 until at least the summer or fall
of 2015. ECF No. 158 at 27; ECF No. 157 at 47, ¶ 70; ECF No. 157-8 at 85, ¶¶ 17–25; 86, 1–21.
Therefore, to the extent that a reasonable jury could find that Plaintiff was denied reasonable
accommodations when heavy packages were not taken off his route after February 20, 2015,
Plaintiff succeeds in establishing a prima facie claim for failure to accommodate under the
Rehabilitation Act with regard to his lifting limitations only.
b. Disability-Based Discrimination & Disability-Based Hostile Work
Environment
To assert a prima facie claim for disability discrimination under the Rehabilitation Act, a
Plaintiff must produce evidence that (1) he is disabled under the meaning of the act; (2) he was
qualified able to perform the essential functions of his job, with or without reasonable
accommodation; and that (3) his employer took adverse employment action against him because
of his disability. Marshall, 2009 WL 3200046, at *17–18; Vélez Ramírez v. Commonwealth of
Puerto Rico, 827 F.3d 154, 157 (1st Cir. 2016); Colón Fontanez, 660 F.3d at 32.
A disability harassment and a disability hostile work environment claim both require
essentially the same showing by a plaintiff as disability discrimination, with some additional
elements. The plaintiff must produce evidence to show (1) he was disabled under the definition
of the Rehabilitation Act; (2) he was subjected to unwelcome harassment; (3) his employer’s
conduct was based on his disability; (4) the harassment was objectively and subjectively
offensive; (5) the employer knew or should have known of the harassment and did not take
prompt remedial action; and (6) there exists some basis for employer liability. McDonough, 673
F.3d at 46; Hernández Echevarría v. Walgreens de Puerto Rico, 121 F. Supp. 3d 296, 307
35

(D.P.R. 2015) (citing Southern Regional Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir.
2001)); O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001). 26
As already discussed above, Plaintiff has succeeded in presenting evidence regarding his
disability status, and there is no dispute that the Plaintiff was able to perform the essential
functions of his job. Defendant challenges both Plaintiff’s disability discrimination and
disability-based hostile work environment claims on the same two bases. Defendant argues that
(1) no mistreatment was related to Plaintiff’s alleged disability, and (2) any mistreatment which
Plaintiff suffered was not severe or pervasive enough to create a hostile work environment
constituting an adverse employment action. ECF No. 153 at 6–7. In the First Circuit, harassment
may indeed constitute an adverse employment action for a discrimination claim as well as for a
hostile work environment claim. Colón Fontanez, 660 F.3d at 37 (“However, demotions,
disadvantageous transfers or assignments, refusals to promote, unwarranted negative job
evaluations, and toleration of harassment by other employees may constitute adverse
employment action, subject to the facts of a particular case”) (internal quotations omitted); see
also Noviello, 398 F.3d at 89. Accordingly, Defendant’s arguments with regard to Plaintiff’s
discrimination and hostile work environment claims will be analyzed together.
A hostile work environment which constitutes an adverse employment action requires
that plaintiff show, at summary judgment, a genuine dispute of material fact that his workplace
was “permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an abusive
working environment.” Valentine Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st

26

A showing of disability harassment and disability hostile work environment are subtly different. However,
because the elements which mark their differences are not at issue in this motion for summary judgment, there is no
reason to elaborate further. Compare McDonough, 673 F.3d at 46 with Hernández Echevarría, 121 F. Supp. 3d at
307 and O’Rourke, 235 F.3d at 728.

36

Cir. 2006). The acts of harassment must also be objectively and subjectively offensive.
McDonough, 673 F.3d 41, 46. Acts that are less pervasive must be more extreme to meet the
standard of severity. Rivera Rivera v. Medina & Medina, Inc., 898 F.3d 77, 93 (1st Cir. 2018);
Arce v. Potter, 818 F. Supp. 2d 402, 413 (D.P.R. 2011) (“If actions do not meet the pervasive
requirement, even incidents that seem severe will not satisfy the requirement.”).
As such, “simple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of employment to
establish an objectively hostile or abusive work environment . . .” Rivera Rivera, 898 F.3d at 93
(citing Colón Fontánez v. Municipality of San Juan, 660 F.3d 17, 44 (1st Cir. 2011); Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotations omitted). Individual acts
considered in isolation may not be “severe,” so a court is required to assess the “totality of the
circumstances,” and whether the harassing conduct unreasonably interfered with the plaintiff’s
work performance. Valentine Almeyda, 447 F.3d at 94.
Plaintiff cites abundant evidence that Santos mocked the letter carriers, used “curse
words” like “fuck,” “son of a bitch, motherfucker, [and] fag,” called one letter carrier a “piece of
shit,” sent “people to hell,” and invited other employees to fight. ECF No. 157-7 at 32, ¶¶ 2–25;
33, ¶¶ 21–25; 34, ¶ 1; ECF No. 157-8 at 46, ¶¶ 15–25; 47, ¶¶ 1–5; 56, ¶¶ 10–15; 129, ¶¶ 6–20;
ECF No. 157-22 at 66, ¶¶ 5–10; 85, ¶¶ 3–21. However, Plaintiff does not allege that any of the
aforementioned conduct was directed specifically at him nor does any one of these statements
indicate they were made based on disability, age, or in retaliation for some protected conduct.
ECF No. 157-25 at 1. Plaintiff essentially argues that Santos created a generally uncomfortable
and disrespectful atmosphere at the Bayamón Branch post office. But a generally uncomfortable

37

workplace or an unprofessional, disrespectful, and tactless boss is not equivalent to a hostile
work environment for the Plaintiff specifically.
However, Santos and Lugo made other statements to Plaintiff which, considered under
the totality of the circumstances and taking all inferences in favor of the Plaintiff, a jury could
conclude the USPS’s conduct was based on his disability. For example, on August 19, 2014,
when Plaintiff had notified Santos of a previous limited duty arrangement which Plaintiff had
with Lugo, Santos replied that Lugo could “stick that arrangement up his ass because he was the
one that was there, and he was the one that would decide what was going to be done there.” ECF
No. 157-22 at 101, ¶¶ 2–16. Being told that your disability accommodations can be stuck up
somebody’s “ass” is objectively and subjectively offensive and was uttered in the context of a
conversation regarding Plaintiff’s alleged disabilities.
Furthermore, on March 12, 2015 Santos remarked to Plaintiff that he had “an accident on
every route he was on” and that he was a “cheater and a “hustler.” Santos and Lugo also referred
to Plaintiff as a repeat offender on December 3, 2014 and March 12, 2015. ECF No. 157-2 at 54,
¶¶ 13–22; ECF No. 152-5 at 151, ¶¶ 1–14. These comments could indicate to a reasonable jury
that the supervisors’ statements had some connection to Plaintiff’s repeated accommodation
requests for his physical disabilities. ECF No. 157-17 at 1.
Also troubling is evidence Plaintiff has put forward of Santos’ statements on March 12,
2015 and April 14, 2015. On those dates, according to Plaintiff, Santos referred to Plaintiff’s
“physical conditions,” and said that if Plaintiff got “any better” he could come back to work at
the Bayamón branch when he was “fit for duty.” ECF No. 157 at 48; 49, ¶ 75; ECF No. 157-17
at 1; ECF No. 157-19; ECF No. 157-23 at 21, ¶¶ 2–6; 22, ¶¶ 2–10. Such statements are clearly

38

connected to Plaintiff’s alleged disabilities. The implication of Santos’ statements is that Plaintiff
had physical conditions that made him unfit to work at the Bayamón Branch. 27
Plaintiff’s burden at the prima facie stage of the McDonnell Douglas test is not onerous.
Brennan, 150 F.3d at 26 (citing Sánchez, 37 F.3d at 719). Here, Plaintiff has identified multiple
disparaging statements made over a period of seven months which have some connection to his
alleged disabilities. What’s worse, seven of these comments occurred on four separate dates in
the space of a month—between March 12, 2015 and April 14, 2015. Plaintiff’s showing is
sufficient to meet the first step of the McDonnell Douglas test and creates a rebuttable
presumption of discrimination.
3. Defendant’s Legitimate, Non-Discriminatory Reasons
As with Plaintiff’s ADEA claims, at step two of the McDonnell Douglas framework,
after a plaintiff has succeeded in establishing a prima facie claim under the Rehabilitation Act,
the employer must meet the burden of production in articulating a legitimate, nondiscriminatory
reason for the challenged actions. Bonefont Igaravidez, 659 F.3d at 124 (citing Dávila, 498 F.3d
at 16). If the employer fails to produce a legitimate, non-discriminatory reason for the challenged
conduct, then the presumption of discrimination persists and summary judgment on those claims
must be denied. Mesnick, 950 F.2d at 825.
Here, Defendant cites no reason as to why heavy packages exceeding Plaintiff’s lifting
limitations were not taken off of his route in 2015. Defendant therefore fails in its burden of
production to articulate a legitimate, nondiscriminatory reason for failing to accommodate

27

Plaintiff alleges that on several occasions Santos called him “slow.” ECF No. 157-2 at 55, ¶¶ 1–12. Specifically,
one incident occurred on March 20, 2015, when Santos yelled at one of the letter carriers to stay away from the
Plaintiff, or Plaintiff “would take 4 hours to case his route.” ECF No. 157-21 at 1; ECF No. 157-7 at 47, ¶¶ 11–22.
Saying someone is “slow” does not necessarily mean the comment is aimed at a person’s disability. An employee
may be slow because they are easily distracted, tardy, or excessively thorough. However, a jury could also interpret
this comment as circumstantial evidence that this comment and other statements were made in connection to
Plaintiff’s physical limitations.

39

Plaintiff’s lifting impairments after February 20, 2015. Defendant also does not cite any evidence
identifying a legitimate non-discriminatory reason regarding the incident on August 19, 2014
with Santos or why Santos or Lugo in March and April 2015 made statements calling Plaintiff a
“cheater,” “hustler,” “repeat offender,” “Trucoman56,” or “slow,” among other incidents
previously detailed. 28 Considered in their totality, a reasonable jury could conclude that these
statements were pervasive and severe enough to create an abusive working environment based
on Plaintiff’s disabilities which constitutes an adverse employment action.
When considered cumulatively, and with all inferences made in Plaintiff’s favor, Plaintiff
has created a dispute of material fact about whether he was subject to a hostile work environment
based on his alleged disabilities and was wrongfully denied lifting accommodations. Because
Defendant has failed to proffer any legitimate, non-discriminatory reason for any of the actions
taken in connection to Plaintiff’s disability “then the inference of discrimination created by the
prima case persists, and the employer's attempt to secure summary judgment” must be denied.
Mesnick, 950 F.2d at 825.
C. RETALIATION CLAIMS
Plaintiff also brings claims for retaliation under ADEA, the Rehabilitation Act, and the
FMLA. ECF No. 28 at 22, 23, 24, 25, 28, 33. 29 Plaintiff alleges that he was subject to essentially

28

Defendant argues that that Santos’ comments about Plaintiff’s slowness were not motivated by discrimination.
Instead, Defendant alleges that Santos explained that Plaintiff’ was often distracted at work, which “normally
manifest in leaving his assignment to engage in lengthy conversations with fellow employees, playing with his cell
phone and showing videos whenever his duties require him to leave his work area. These actions objectively
contributed to Plaintiff being a slow worker”. ECF No. 153 at 10–11. However, Defendant cites no record evidence
for the above quotation such as a deposition or a written statement. Defendant therefore fails in its burden of
production.
29
In the complaint, Plaintiff also asserts a claim for retaliation in violation of Title VII of the Civil Rights Act of
1964 after he opposed an allegedly unlawful activity when he made complaints of age and disability discrimination,
hostile work environment, and workplace harassment with the EEOC. ECF No. 28-1 at 24–25, ¶¶ 117–119.
However, the first prong of a prima facie case of retaliation under Title VII requires that a plaintiff engaged in
protected conduct under Title VII. Montañez v. Educational Technical College, 660 F. Supp. 2d 235, 243 (D.P.R.
2009) (citing Fantini v. Salem State College, 557 F.3d 22, 32 (1st Cir.2009)). Claims for age and disability
discrimination are not protected classes under Title VII, and Plaintiff therefore cannot show that he engaged in

40

five categories of retaliation: (1) retaliatory harassment creating a hostile work environment; (2)
retaliatory fabrication of false criminal charges; (3) retaliatory denial of reasonable
accommodations; (4) retaliatory discipline for driving with an expired license; and (5) retaliatory
discipline for FMLA protected absences. ECF No. 28 at 25, 27–28; 31–32
Plaintiff brings no direct evidence of retaliation. As discussed above, retaliation claims
are also subject to the McDonnell Douglas burden shifting framework if a plaintiff lacks direct
evidence of retaliatory animus. See e.g. González Rodríguez, 605 F. Supp. 2d at 370; Mesnick,
950 F.2d at 827. To assert a prima facie case of retaliation, a plaintiff must produce evidence that
(1) he engaged in protected conduct under the applicable statute; (2) that he experienced an
adverse employment action; and (3) that there existed a causal connection between the plaintiff’s
protected conduct and the alleged adverse employment action. Kelley v. Corr. Med. Servs., Inc.,
707 F.3d 108, 115 (1st Cir.2013).
The burden to show a prima facie case is a “relatively low threshold” especially “where
all inferences are drawn” in the nonmovant’s favor. Hodgens, 144 F.3d at 165. Once a plaintiff
makes the requisite prima facie showing, the employer must articulate a “legitimate, nonretaliatory” reason for the adverse employment action before the burden shifts back to the
plaintiff to demonstrate under the entirety of the evidence that the offered reason is pretext
cloaking the employer's retaliatory animus. Vázquez Robles v. CommoLoco, Inc., 186 F. Supp.
3d 138, 154–55 (D.P.R. 2016) (citing Kelley, 707 F.3d at 115).

protected conduct under Title VII. See supra note 3; Montañez, 660 F. Supp. 2d at 243 (“This claim was based on
both age and disability—based discrimination, neither of which are protected classes under Title VII. Therefore,
because Plaintiff is unable to meet the first requirement of her prima facie case, her claim of retaliation under Title
VII fails.”).

41

1. The Prima Facie Cases of Retaliation
a. Plaintiff’s Protected Conduct
First, Defendant argues that because Plaintiff’s initial contact with an EEOC advisor was
on April 6, 2015, then any allegedly retaliatory acts that occurred before April 6, 2015 cannot
constitute retaliation. ECF No. 153 at 20; ECF No. 152 at 9, ¶ 71. However, a plaintiff’s
protected conduct is not limited only to EEOC-activity, and each relevant statute protects certain
conduct which can include informal complaints or requests. See e.g. Mesnick, 950 F.2d at 828
(“discussing a complaint of age discrimination that was made informally in a memorandum);
Mercado Córdova, 369 F. Supp. 3d at 357–58 (discussing the protection of requests for
reasonable accommodation and disability related benefits). Therefore, the first step in analyzing
Plaintiff’s prima facie claims is to examine what particular protected conduct Plaintiff exercised
under each statute.
i.

ADEA Protected Conduct

Plaintiff engaged in ADEA protected conduct as of April 6, 2015. To establish the prima
facie claim of retaliation under the ADEA, “[i]t is enough that the plaintiff had a reasonable,
good-faith belief” that discrimination based on age occurred, that the plaintiff “acted on it,” “that
the employer knew of the plaintiff's conduct;” and “that the employer lashed out in consequence
of it.” Mesnick, 950 F.2d at 827.
Plaintiff asserts that he engaged in ADEA protected conduct as far back as August 2014
when he filed internal grievances about Santos. ECF No. 158 at 20; ECF No. 157 at 22, ¶ 71. On
August 13, 2014, Plaintiff made an internal “Report of Hazard, Unsafe Condition or Practice”
where he complained that Santos was “creating a hostile environment . . . His approach to every
incident is with a very aggressive manner.” ECF No. 157-25 at 1. Nevertheless, the internal

42

complaint makes no mention of age discrimination and so does not provide any evidence that
Plaintiff had a good faith belief that he was subject to discrimination based on age. Plaintiff’s
internal report of a hazardous or unsafe condition therefore cannot be the basis of retaliation
based on ADEA.
The first evidence cited in the record in which Plaintiff alludes to age-based
discrimination or harassment is in his EEOC “Information for Pre-Complaint Counseling” on
April 17, 2015. ECF No. 157-5 at 1. Before that, the parties agree that Plaintiff made initial
contact regarding his EEOC claims on April 6, 2015. ECF No. 152 at 2, ¶ 9; ECF No. 152-6 at 1;
ECF No. 157 at 3, ¶ 9. A reasonable inference can be made that Plaintiff also made an agerelated claim in his initial contact with the EEOC Dispute Resolution Specialist on April 6, 2015.
Therefore, Plaintiff did not engage in any ADEA protected conduct until April 6, 2015—at the
earliest.
ii.

Rehabilitation Act Protected Conduct

Plaintiff engaged in protected activity under the Rehabilitation Act much earlier and on
many repeated occasions, beginning in April 2013. 30 For purposes of Rehabilitation Act
retaliation, a plaintiff “requesting reasonable accommodation and/or disability-related benefits,
such as leaves of absence, may constitute protected conduct under anti-retaliation provisions
insofar as a retaliatory action by an employer may dissuade a reasonable worker from making
such requests.” Mercado Cordova, 369 F. Supp. 3d at 357–58 (citing Thompson v. North

30

Like Plaintiff’s ADEA retaliation claim, Plaintiff’s August 2014 internal report “Report of Hazard, Unsafe
Condition or Practice” against Santos makes no mention of disability, and so cannot be the basis of Rehabilitation
Act protected conduct. See ECF No. 157-25 at 1. Plaintiff also argues that he “filed” a different internal grievance in
August 2014 as well, where he complains of “constant threats, harassment, and intimidation, lack of respect and
constant teasing and mocking from my supervisor Juan R. Santos. This all has to do with my health condition for
which I have a case for which I am being treated by OWCP . . .” ECF No. 158 at 20. Plaintiff cited no evidence in
the record of this complaint. It therefore cannot be properly considered for summary judgment. Even if it was, the
language provided by Plaintiff only alludes to a “health condition” and gives no indication that this complaint is
related to age. ECF No. 158 at 20.

43

American Stainless, LP, 562 U.S. 170, 173–75 (2011); Burlington N., 548 U.S. at 57. The
plaintiff need not actually have a disability to exercise protected conduct. See Mesnick, 950 F.2d
at 827.
Plaintiff requested and was given limited duties (accommodations), with regard to
accidents he suffered in April 2013, September 2013, December 2013, June 2014, July 2014, and
August 2015. ECF No. 152-1 at 99, ¶¶ 18–25; 100, ¶¶ 1–9; 104, ¶¶ 1–25; 105, ¶¶ 1–21; ECF No.
158 at 26; ECF No. 157-28 at 3–7. Plaintiff also made requests for auxiliary assistance in August
2014, and October 2014. ECF No. 152 at 5, ¶ 39; ECF No. 152-1 at 99, ¶¶ 18–25; 100, ¶¶ 1–9;
104, ¶¶ 1–25; 105, ¶¶ 1–21; ECF No. 157 at 30, ¶ 3A–4; ECF No. 157-6 at 2, ¶ 4–5. Plaintiff
again made an OWCP claim in November 2014. ECF No. 1 at 181, ¶¶ 3–25; ECF No. 152-20 at
1; ECF No. 152-5 at 151, ¶¶ 1–14. Plaintiff filed another OWCP claim electing to be placed on a
leave of absence after his accident on January 8, 2015. ECF No. 152 at 7, ¶ 58; ECF No. 157 at
17, ¶ 58; ECF No. 157 at 44, ¶ 52; ECF No. 157 at 79, ¶¶ 4–17. Finally, as with his ADEA
claims, Plaintiff contacted the EEOC alleging disability discrimination on April 6, 2015, filed an
“Information for Pre-Complaint Counseling” on April 17, 2015, and filed an EEOC Complaint
on July 24, 2015. ECF No. 152-3; ECF No. 157-5.
iii.

FMLA Protected Conduct

Under the FMLA, taking leave or activating leave are FMLA protected rights in a claim
for retaliation in violation of the FMLA. See Carrero Ojeda v. Autoridad de Energia Eléctrica,
755 F.3d 711, 719 (1st Cir. 2014). The FMLA, inter alia, protects taking leave because of a
“serious health condition that makes the employee unable to perform the functions of the
position of such employee,” or to care for a family member, such as a spouse, with a serious
health condition. See 29 U.S.C.A. § 2612(1)(C)–(D).

44

Plaintiff’s first FMLA protected activity occurred on January 8, 2015 when Plaintiff took
45-days of leave after he injured his knee on his route. Plaintiff also exercised FMLA leave on
April 14, 2015 when Plaintiff was absent from work because, according to his EEOC
Information for Pre-Complaint Counseling, he had to attend “a critical medical appointment with
my wife that is in a critical stage of her pregnancy.” ECF No. 157-5 at 3. In Plaintiff’s July 24,
2015 EEOC complaint, Plaintiff also states that his absences from work on April 15, 16, and 28
were all related to his wife’s pregnancy. ECF No. 152-3 at 010. Each of these absences in April
2015 would qualify as an FMLA protected leave of absence to care for a family member with a
serious medical condition.
b. Whether the USPS Knew of Plaintiff’s Protected Conduct
A plaintiff cannot be retaliated against for protected conduct unless the defendant knew
about the plaintiff’s protected conduct in the first place. Mesnick, 950 F.2d at 827. Defendant
argues that Plaintiff fails to show that his supervisors were aware of his EEOC activity before
they engaged in allegedly retaliatory acts. ECF No. 153 at 20. However, taking all inferences in
favor of the Plaintiff, as discussed further below, a reasonable jury could find that supervisors
Santos and Lugo knew about Plaintiff’s EEOC activity and his other protected activity as well.
i.

Plaintiff’s Accommodation and Reports of Injuries

Plaintiff’s supervisors would have known immediately about Plaintiff’s requests for
accommodations, auxiliary support, and his OWCP claims, because Plaintiff made them to his
supervisors directly. For example, Plaintiff spoke directly to Santos in August 2014 about his
accommodations, and Santos himself rejected Plaintiff’s requests for limited duties in August
and October 2014. Likewise, the evidence in the record shows that Lugo knew about Plaintiff’s
OWCP claim in November 2014 because he controverted Plaintiff’s claim in December 2014.

45

Plaintiff has also produced evidence which shows that supervisors Santos and Lugo were aware
of Plaintiff’s January 8, 2015 OWCP request after Plaintiff suffered an accident. First, Plaintiff
produced the deposition testimony of Moyeno who testified that the day of the accident, Santos
told him that Plaintiff’s CA-1 reporting the accident had been “drafted incorrectly.” ECF No. 157
at 34, ¶ 14; ECF No. 157-8 at 76, ¶¶ 19-25; 77, ¶¶ 1–7. Additionally, after completing the CA-1
Moyeno testified that he delivered it to Lugo’s desk in a folder labeled “for your eyes only,
Richard Lugo” so that Lugo could enter the CA-1 “into the system.” ECF No. 157-8 at 78, ¶¶ 1–
4, 8–14; 79, ¶ 1–3. Therefore, both Santos and Lugo were aware of the CA-1 reporting Plaintiff’s
fall on the very same day of the accident. Because Plaintiff’s request for accommodation and
OWCP reports were submitted to his supervisors, and because Plaintiff’s supervisors acted
directly in response to Plaintiff’s requests and reports, it is clear that the USPS knew about this
class of conduct protected by the Rehabilitation Act.
ii.

Plaintiff’s FMLA Protected Absences

Similarly, Plaintiff has produced evidence which, at the very least, produces a dispute of
material fact that his supervisors knew about his FMLA protected conduct. As already discussed
above, Santos and Lugo knew about Plaintiff’s January 8, 2015 OWCP claim, and would have
been aware of his subsequent 45-day absence. With regard to Plaintiff’s FMLA protected
absences on April 14, 15, 16, and 28, 2015, Plaintiff has created a dispute of material fact as to
whether he notified his supervisors of his absences. Defendant asserts that Plaintiff failed to
notify his supervisor or use the automated phone system at USPS to report his FMLA protected
absences on April 14, 15, 16, and 28, 2015. ECF No. 152 at 11, ¶ 95; ECF No. 152-23 at 001.
However, Plaintiff disputes this, claiming that he did make the proper notifications, and proffers
evidence that after being disciplined he filed a grievance which showed that all of his absences in

46

April 2015 were “justified or permissible under the FMLA” and that he had provided proper
notification for his absences. ECF No. 157-6 at 4, ¶ 11; ECF No. 157-16 at 2. Therefore, Plaintiff
has raised a genuine dispute of material fact whereby a jury could find that the USPS was aware
of each instance of Plaintiff’s FMLA protected conduct on the day that it occurred.
iii.

Plaintiff’s EEOC Contact

Finally, Defendant argues that Plaintiff fails to show evidence that Santos and Lugo knew
of Plaintiff’s EEOC conduct, and thus could not have retaliated against Plaintiff for his EEOC
activity. ECF No. 153 at 23. However, taking all inferences in favor of the Plaintiff, evidence in
the record could lead a reasonable jury to conclude that Santos and Lugo were aware of
Plaintiff’s EEOC activity on or shortly after April 6, 2016. Plaintiff made initial contact with the
EEOC on April 6, 2015 by requesting an appointment with an EEOC dispute resolution
specialist. ECF No. 152 at 2, ¶ 9; ECF No. 152-6 at 1; ECF No. 157 at 3, ¶ 9; ECF No. 157-5 at
1. Eleven days later, on April 17, 2015, Plaintiff filed an “Information for Pre-Complaint
Counseling” after his initial contact with the EEOC wherein Plaintiff alleged discrimination
based on “physical disability” and “age” and requested a “proper limited duty agreement or a fair
job accommodation.” ECF No. 157-5 at 1, 5. Thereafter, on April 23, 2015, Plaintiff had his
initial EEOC interview. ECF No. 157 at 2, ¶ 10; ECF No. 157 at 3, ¶ 10. On July 2, 2015 the
EEOC issued Plaintiff a Notice of Right to File an Individual EEOC Complaint. ECF No. 152 at
2, ¶ 11; ECF No. 157 at 4, ¶ 11. Accordingly, on July 24, 2015, Plaintiff filed a formal EEOC
complaint alleging discrimination based on age and disability, hostile work environment,
retaliation, and violation of his FMLA rights. ECF No. 152 at 1, ¶ 4; 2, ¶ 12; ECF No. 157 at 5, ¶
16; ECF No. 152-3 at 001, 005, 009, 010.

47

Santos and Lugo assert they did not know about Plaintiff’s EEOC activity until June
2015. ECF No. 152 at 11, ¶ 99; ECF No. 152-7 at 7; ECF No. 152-4 at 004. Plaintiff, however,
disputes this fact, stating in his unsworn declaration under penalty of perjury that he notified both
Santos and Lugo of his “EEOC activity as soon as [he] filed” in an attempt to “have them stop
their harassment and discrimination.” ECF No. 158 at 22; ECF No. 157-7 at 7, ¶ 20. Plaintiff
does not cite to evidence establishing with specificity when exactly he notified Santos and
Lugo—whether April 6, April 17, April 23, or July 24, 2015. 31 Nevertheless, Plaintiff’s assertion
that he notified “each of them” “as soon as [he] filed” indicates a sequence of events which could
lead a reasonable jury to conclude that he notified Santos and Lugo on or shortly after the date
that he filed with the EEOC an Information for Pre-Complaint Counseling, that is April 17, 2015.
Therefore, taking all reasonable inferences in favor of Plaintiff, a reasonable jury could conclude
that Santos and Lugo knew that Plaintiff had contacted the EEOC on or about April 17, 2015.
c. Whether Plaintiff was Subjected to an Adverse Employment Action
Next, to succeed on a retaliation claim, a plaintiff must show that his employer subjected
him to “some objectively and materially adverse action.” Bhatti v. Trustees of Boston Univ., 659
F.3d 64, 73 (1st Cir. 2011). To show an adverse employment action, plaintiff must present
evidence that “a reasonable employee would have found the challenged action materially
adverse,” which means that it “might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Colón Fontánez, 660 F.3d at 36 (quoting Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)) (internal quotations omitted). Whether an

31
Plaintiff’s use of the phrase “EEOC activity” is ambiguous and could refer to his initial contact with an EEOC
counselor, the filing of his Information for Pre-Complaint Counseling, his initial EEOC interview, or his filing of the
EEOC complaint in July 2015. However, for the purposes of deciding summary judgment, the court makes every
inference in Plaintiff’s favor, thus concluding that he is referring to his first filing with the EEOC on April 17, 2015
of an “Information for Pre-Complaint Counseling.”

48

action was materially adverse is examined on a case-by-case basis. Blackie v. Maine, 75 F.3d
716, 725 (1st Cir. 1996). Typically, the plaintiff must establish that his employer:
either (1) [took] something of consequence from the employee, say, by
discharging or demoting [him], reducing [his] salary, or divesting [him] of
significant responsibilities, or (2) with[eld] from the employee an accouterment of
the employment relationship, say, by failing to follow a customary practice of
considering [him] for promotion after a particular period of service.
Shaffer v. IEP Tech., LLC, 2021 WL 3616072 (D. Mass. Aug. 16, 2021) (citing Blackie, 75 F.3d
at 725) (internal citations omitted). Here, Plaintiff shows that several acts by his supervisors
constituted adverse employment actions against him.
i.

Refusal to Accommodate

Plaintiff made requests for accommodation that were denied on August 22, 2014 and
October 1, 2014 and made an OWCP claim in November 2014 which Lugo controverted on
December 3, 2014. Plaintiff also showed evidence that his lifting limitations were not respected
on his route in 2014 and 2015. ECF No. 157 at 32, ¶ 9; ECF No. 157-2 at 52, ¶¶ 17–24; ECF No.
157-2 at 53, ¶¶ 9–17. Plaintiff argues that by denying Plaintiff’s requests for accommodations,
Plaintiff was retaliated against for protected conduct. ECF No. 158 at 21.
“[E]mployers are not required to provide a perfect accommodation or the very
accommodation most strongly preferred by the employee.” Noll v. IBM Corp., 787 F.3d 89, 95
(2nd Cir. 2015). However, delaying an accommodation requested may very well dissuade a
disabled person from engaging in protected conduct. See Carmona Rivera v. Puerto Rico, 464
F.3d 14, 20 (1st Cir. 2006) (“[D]elay in providing the accommodations needed to meet a
disability may cause a significant injury or harm to a disabled person . . . .”). Even so, a plaintiff
must be able to show actual harm, rather than mere inconvenience. Id. Plaintiff has shown
evidence that prior to August 2014, Plaintiff had reached an arrangement with Lugo about his

49

accommodations, but Santos put an end to that arrangement, stating that Lugo could “stick that
arrangement up his ass because he was the one that was there, and he was the one that would
decide what was going to be done there.” ECF No. 157 at 30, ¶ 3; ECF No. 157 at 40, ¶ 34; ECF
No. 157-22 at 101, ¶¶ 2–16. Plaintiff testified in his deposition that as a result of his supervisors
refusing to respect his lifting accommodations specifically, his “condition worsened.” ECF No.
157-2 at 52, ¶¶ 17–24. Therefore, Plaintiff set forth that he suffered further physical harm
because of the denial of accommodations. Plaintiff has produced enough evidence to show that
being refused reasonable accommodations was a materially adverse employment action.
ii.

Unjustified Discipline

Plaintiff also produces evidence showing that he was disciplined on several occasions by
Santos. Discipline or a reprimand for the purposes of retaliation may constitute an adverse
employment action if it was “undeserved” or “unfairly” imposed and if it carries “tangible
consequences” which would dissuade a reasonable employee from making or supporting a
charge of discrimination. Espinal v. National Grid NE Holdings 2, LLC, 794 F. Supp. 2d 285,
293 (D. Mass. 2011); Bhatti, 659 F.3d at 73; Billings v. Town of Grafton, 515 F.3d 39, 54–55
(1st Cir. 2008).
Here, Plaintiff has succeeded in showing evidence and creating a dispute of material fact
that he was subject to an adverse employment action through unjustified discipline. First, on
April 14, 2015 Santos suspended Plaintiff’s driving privileges after discovering that Plaintiff had
driven with an expired driver’s license on April 13, 2015. ECF No. 152 at 11, ¶ 92; ¶ 93; ECF
No. 152-21 at 00116; ECF No. 157 at 27, ¶ 93. On May 7, 2015, Plaintiff was also issued a
Letter of Warning for failure to follow safety procedures for driving with an expired license.
ECF No. 152 at 11, ¶ 94; ECF No. 157 at 27, ¶ 94. However, Plaintiff produced evidence that

50

Santos himself “insisted that [Plaintiff] take a postal vehicle despite [his] protestations.” ECF
No. 157-6 at 5. Therefore, Plaintiff has created an issue of material fact as to whether he was
instructed to drive on an expired license and then subsequently disciplined for following
orders—thereby making his later driving suspension unjustified. Furthermore, Santos suspending
Plaintiff’s driving privileges, if unjustified also tangibly changed the terms and conditions of
Plaintiff’s employment because he was no longer able to drive to complete his route.
Additionally, on April 14, 15, 16, and 28, 2015, Plaintiff was marked as being absent
from work without prior approval because Plaintiff had allegedly failed to notify his supervisors
of his absences. ECF No. 152 at 11, ¶ 95; ECF No. 152-23 at 001, 003–004. At least two of these
absences were designated as Leave Without Pay. ECF No. 157-16 at 1. Subsequently, on May
14, 2015, Plaintiff was issued a seven-day suspension for failure to be in regular attendance. ECF
No. 157-16 at 1. However, Plaintiff produced evidence which shows that the discipline for his
absences was undeserved and unjustified. Plaintiff showed that on April 14, 15, 16, and 28 his
absences were in connection with attending to his pregnant wife, and that he had notified his
supervisors about the absences in accordance with FMLA procedures. ECF No. 157-6 at 4, ¶ 11;
ECF No. 157-16 at 2. Making all inferences in Plaintiff’s favor, if Plaintiff properly reported his
absences, then the discipline he received was unjustified. Such disciplinary measures altered
Plaintiff’s conditions of employment. An employee who needs to attend to the health of his
pregnant wife may very well decide not to report discrimination if he feels that it will result in
being disciplined or suspended when he exercises FMLA protected absences. Therefore, a
reasonable jury could find that the above acts of discipline (particularly those after April 17,
2015), if undeserved, would have dissuaded Plaintiff from making or supporting his claims of
discrimination.

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iii.

Pressure to Transfer to Another Branch

On at least two occasions Santos suggested to Plaintiff or pressured Plaintiff to bid for a
transfer to another post office branch. Standing alone, these acts by Santos are not an adverse
employment action. “[A] purely lateral transfer, that is, a transfer that does not involve a
demotion in form or substance, cannot rise to the level of a materially adverse employment
action.” Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 23 (1st Cir. 2002) (emphasis in
original). Therefore, if Plaintiff’s superiors had urged him to transfer to another branch, as long
as his transfer did not amount to a demotion, such conduct is not adverse.
First, on March 12, 2015, Santos told Plaintiff that “you should go to work to another
post office and when [you are] ready to work for real to bid back because at this post office you
have to come to work.” ECF No. 157 at 49, ¶ 75; ECF No. 157-17 at 1. Then, on April 14, 2015,
Santos again told Plaintiff that “you might find something that you can do in some other station.
And if you get any better, you can bid back to Bayamón branch when you are fit for duty.” ECF
No. 157 at 48, ¶ 71; ECF No. 157-19; ECF No. 157-23 at 21, ¶¶ 2–6; 22, ¶¶ 2–10.
In this case, Plaintiff was never transferred or forced to bid for another branch. Instead,
making all inferences in favor of the Plaintiff, Santos at best suggested that Plaintiff bid for
another branch and at worst pressured him to do so. Even so, Plaintiff was not transferred.
Furthermore, no evidence cited in this case suggests Plaintiff was threatened with a transfer that
would have resulted in a demotion in form or substance or caused any significant hardship to the
Plaintiff. Nevertheless, the statements which Santos made, while not an adverse employment
action in and of themselves, may provide additional cumulative evidence of a retaliatory hostile
working environment, as further discussed below.

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iv.

Harassment & Hostile Work Environment

Defendant principally argues that Plaintiff fails to show a prima facie case of retaliation
by hostile work environment because the harassment to which Plaintiff claims he was subject did
not rise to the level of a hostile work environment. ECF No. 153 at 19–23. The First Circuit
explicitly recognizes that “workplace harassment, if sufficiently severe or pervasive, may in and
of itself constitute an adverse employment action sufficient to satisfy the second prong of a
prima facie case for Title VII retaliation cases.” Noviello, 398 F.3d at 89. Because workplace
harassment alone can constitute an adverse employment action for the purposes of a retaliation
claim under Title VII, it follows that a hostile work environment constitutes adverse action in
similar retaliation claims under the ADEA, Rehabilitation Act, and FMLA. It is therefore
necessary to examine whether Plaintiff’s alleged harassment was sufficiently “severe or
pervasive” to create a retaliatory hostile work environment. Id.
Plaintiff showed he was subject to degrading statements by Lugo and Santos on several
occasions, and a reasonable factfinder could conclude these statements created a retaliatory
hostile work environment. As discussed previously, to be “severe and pervasive” for the
purposes of a claim of hostile work environment, courts examine “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work
performance.” Marrero, 304 F.3d at 18–19; Arce, 818 F. Supp. 2d at 413. Acts that are less
pervasive must be more extreme to meet the standard of severity. Rivera Rivera, 898 F.3d at 93;
Arce, 818 F. Supp. 2d at 413 (“If actions do not meet the pervasive requirement, even incidents
that seem severe will not satisfy the requirement.”). For example, “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to discriminatory

53

changes in the terms and conditions of employment to establish an objectively hostile or abusive
work environment . . .” Rivera Rivera, 898 F.3d at 93 (citing Colón Fontánez, 660 F.3d at 44;
Faragher, 524 U.S. at 788 (internal quotations omitted). Individual acts considered in isolation
may not be “severe,” and so a court must consider whether a factfinder could determine that the
alleged conduct would “cumulatively” dissuade a reasonable employee from participating in
protected conduct. Rodríguez Vives v. Puerto Rico Firefighters Corps of Puerto Rico, 743 F.3d
278, 285 (1st Cir. 2014). Allegations of dishonesty may contribute to a finding of severe
treatment when considered cumulatively with other mistreatment, particularly if the allegations
are made in the presence of a plaintiff’s coworkers. Pérez v. Town of North Providence, 256 F.
Supp. 3d 139, 153 (D.R.H. 2017) (“[T]he cumulative allegations include: placing an alleged
harasser in charge of investigating Lt. Perez's injury; refusing to turn over examination results, in
violation of the CBA; going on a public radio show and criticizing Lt. Perez for making the
claims; and calling Lt. Perez a liar in front of her NPPD counterparts.”).
On several occasions over a period spanning roughly seven months, Plaintiff was
subjected to statements which cumulatively support a severity finding. The evidence shows that,
on August 19, 2014, after Plaintiff requested auxiliary assistance and explained his previous
arrangement with Lugo, Santos told the Plaintiff that Lugo could “stick” the arrangement “up his
ass.” ECF No. 157-22 at 101, ¶¶ 2–16. On December 3, 2014, Lugo also wrote that Plaintiff was
a “repeated offender” when he controverted Plaintiff’s November 24, 2014 OWCP request. ECF
No. 152-20 at 1; ECF No. 152-5 at 151, ¶¶ 1–14. On March 12, 2015, after Plaintiff engaged in
protected conduct related to his January 8, 2015 accident, Lugo told Plaintiff that he was “just a
cheater like Robert Rosado (retired carrier) who had an accident on every route he was on.” ECF
No. 157 at 49, ¶ 75; ECF No. 157-17 at 1. Finally, after Plaintiff contacted the EEOC, Santos

54

and Lugo called Plaintiff a “repeat offender,” a “hustler,” and revealed they had a nickname for
Plaintiff: “Trucoman56.” ECF No. 157 at 32, ¶ 10; ECF No. 157-2 at 54, ¶¶ 13–22.
It is not to say that supervisors cannot challenge an employee’s truthfulness on certain
matters without it becoming harassment. However, the above statements and allegations were
more than simple teasing and offhand comments. Calling Plaintiff a “repeat offender,” “hustler,”
“Trucoman56,” and “a cheater . . . who had an accident on every route . . .” implies or directly
alleges that Plaintiff is dishonest, lies about his injuries or disabilities, and engages in fraud.
Furthermore, several of these statements were made in the presence of Union Shop Steward
Toledo—a fact which may have exposed Plaintiff to particular embarrassment. In short, the
above statements were expressed in a spiteful, unprofessional, and provacative manner and are
accusations of particularly severe misconduct.
There were additional components to this hostile working environment beyond the above
severe disparaging remarks. Plaintiff brought evidence which shows that sometime after January
2015 he was subject to a “special procedure”—unusual according to at least one witness—
whereby all disciplinary and injury matters for Plaintiff had to go through Santos. ECF No. 158
at 24; ECF No. 157 at 42, ¶ 46; 47, ¶ 68; ECF No. 157-8 at 68, ¶¶ 22–24; 134, ¶¶ 1–19. Plaintiff
also showed, as discussed above, that Santos implied to Plaintiff that he was not “fit for duty”
and that when he was “ready to work for real to bid back because at this post office you have to
come to work.” ECF No. 157 at 48, ¶ 71; ECF No. 157-19; ECF No. 157-23 at 21, ¶¶ 2–6; 22, ¶¶
2–10. Such statements communicate that Santos believed that Plaintiff was not really working,
was lazy, or otherwise not fit to work at the Bayamón branch. Again, while performance
criticisms might be perfectly legitimate, taken in the light of the other comments made by
Santos, these statements provide further evidence of the generally hostile environment Plaintiff

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endured. Such acts and statements, standing alone may not create a hostile work environment,
but they certainly contribute to an overall abusive environment.
Therefore, in totality, Plaintiff has produced evidence which shows he was repeatedly
accused of dishonesty and fraud by being called a “repeat offender,” “hustler,” “Trucoman56,”
and “a cheater”; he was told that his accommodations arrangement could be stuck up Lugo’s
“ass”; he was forced into a special arrangement wherein his injuries and discipline was overseen
by his most antagonistic supervisor; and he was told that he should leave the branch and not
come back until he was ready to work “for real.” Cumulatively taken, a reasonable factfinder
could determine that Plaintiff was subject to retaliatory harassment and a hostile working
environment which constitutes an adverse employment action.
v.

The Fabricated Criminal Case

Plaintiff also asserts that he was subject to an adverse employment action when after he
reported an accident on January 8, 2015 Santos and Lugo fabricated a criminal case against him.
ECF No. 158 at 16, 17; ECF No. 157 at 25, ¶ 85; 33, ¶ 13. If true, such an action would clearly
be substantial enough to dissuade an employee from engaging in any protected conduct. Surely
an employee would think twice about engaging in any form of protected conduct if his
supervisors would frame him for a crime in response. However, Defendant asserts that Plaintiff
has failed to produce sufficient evidence to convince a reasonable jury that Santos and Lugo
encouraged, pressured, or forced the Office of the Inspector General (“OIG”) and the U.S.
Attorney’s Office to investigate and prosecute Plaintiff. ECF No. 152 at 10, ¶ 85. Defendant’s
argument is persuasive. Even indulging all reasonable inferences in Plaintiff’s favor, Plaintiff’s
assertion that he was the target of a fabricated criminal case are based only on “conclusory

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allegations, improbable inferences, and unsupported speculation” insufficient to survive
summary judgment. See Medina Muñoz, 896 F.2d at 8.
The facts and allegations underlying Plaintiff’s claim are as follows. On January 8, 2015
Plaintiff reported to Moyeno that he had fallen on his route. ECF No. 157 at 43. ¶ 47; ECF No.
157-8 at 71, ¶¶ 8–10; 75, ¶¶ 4–7. That same day, Moyeno saw Plaintiff’s torn pants and swollen,
red knee. ECF No. 157 at 43, ¶¶ 48; ECF No. 157-8 at 75, ¶¶ 8–20. Moyeno then gave the
Plaintiff two forms: A Federal Worker’s Compensation Form (“CA-17”) and an Application of
Continuation of Pay form (“CA-1”). ECF No. 157 at 43, ¶¶ 48; ECF No. 157-8 at 75, ¶¶ 8–20.
Moyeno testified that he completed the CA-1 on the computer on January 8, 2015, but that
Santos later came to him that day, looked at the CA-1 and told him that it had been “drafted
incorrectly.” ECF No. 157 at 34, ¶ 14; ECF No. 157-8 at 76, ¶¶ 19-25; 77, ¶¶ 1–7. Moyeno
testified in his deposition, however, that he disagreed with Santos and that he had drafted the
CA-1 correctly. ECF No. 157 at 34, ¶ 14; ECF No. 157-8 at 76, ¶¶ 19-25; 77, ¶¶ 1–7. Regardless,
Moyeno completed the CA-1 and delivered it to Lugo’s desk in a folder labeled “for your eyes
only, Richard Lugo” so that Lugo could enter the CA-1 “into the system.” ECF No. 157-8 at 78,
¶¶ 1–4, 8–14; 79, ¶ 1–3. Meanwhile, Plaintiff took the CA-17 with him to be completed by his
physician. ECF No. 157 at 17, ¶ 59; ECF No. 152-1 at 109–10; ECF No. 152-11 at 38–39, ¶ 107.
On January 14, 2015, Lugo came to Moyeno and told him that there were some pages
missing from Plaintiff’s CA-1, and Lugo directed Moyeno to fill out the missing pages and put
the then-current date of January 14, 2015 on the CA-1. ECF No. 157 at 44, ¶ 54; 46, ¶ 60; ECF
No. 157-8 at 80, ¶¶ 8–25; 136, ¶¶ 1–7. Therefore, the original CA-1 was dated January 8, 2015
while the corrected CA-1 was dated January 14, 2015. ECF No. 157 at 44–45, ¶ 55; ECF No.
157-8 at 80, ¶¶ 20–25; 81, ¶ 1.

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On February 27, 2015, after returning from his 45-day leave of absence, Plaintiff
submitted the CA-17 which had been completed by his physician. ECF No. 157 at 17, ¶ 59; ECF
No. 152-1 at 109–10; ECF No. 152-11 at 38–39, ¶ 107. Plaintiff asserts that when he returned to
work and turned in his CA-17, he found that another CA-17 had already been submitted “for the
same period of time.” ECF No. 152-11 at 38, ¶ 107. Plaintiff alleges that he recognized the other
CA-17 because it was a different CA-17 from a previous, unidentified occasion which had been
returned to him. ECF No. 152-11 at 38–39, ¶ 107. Plaintiff admits that he did not see Santos
make any alterations to the CA-17. ECF No. 157-2 at 57, ¶¶ 6–9. However, Plaintiff did testify at
his deposition that at some unnamed time he saw Santos make three copies of a CA-17, and that
the alterations that appeared in the CA-17 used in Plaintiff’s criminal prosecution were the
alterations he saw in the copies in Santos’ hands. ECF No. 157-2 at 55, ¶¶ 22–25; 56; ¶¶ 24–25;
57, ¶¶ 1–4.
On October 28, 2015 a true bill was returned by a grand jury against Plaintiff alleging
under Count One that Plaintiff “did willfully and knowingly make and use a false writing and
document: that is a DOL OWCP CA-1 Form . . . by forging the official superior’s signature and
altering the dates in the receipt of notice of injury section of the CA-1 Form . . . .” ECF No. 15224 at 4–5. Count Two alleged that “between on or about February 26, 2015 through on or about
February 27, 2015” the Plaintiff “did willfully and knowingly make and use a false writing and
document: that is a DOL OWCP CA-17 form . . . by altering the information in [the] Side Bphysician section of the CA-17 Form . . . .” ECF No. 152-24 at 5. Counts three and four allege
that Plaintiff falsified or made false statements on the CA-1 and CA-17 in order to receive
compensation through the Office of Worker’s Compensation Program. ECF No. 152-24 at 6–7.

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Based on the above evidence, Plaintiff urges that“[t]he only legal conclusion is that, in
fact, Santos copied the incomplete CA-17 and maliciously and with the intention to harm me as
[an] employee processed and delivered . . .” the CA-17 and CA-1, which resulted in Plaintiff’s
prosecution. ECF No. 152-11 at 38–39, ¶ 107. Plaintiff’s argument cannot prosper. As a
threshold matter, the mere fact that a person is acquitted at a criminal trial does not necessarily
mean that there was no probable cause to bring the criminal charges in the first place or that the
target of the criminal prosecution was framed. Fleck v. Trustees of University of Pennsylvania,
995 F. Supp. 2d 390, 410 (E.D. Penn. 2014) (“Absence of probable cause . . . is not conclusively
established by an adjudication of innocence in the prior proceeding.”); Lovelien v. United States,
422 F. Supp. 3d 341, 353 n. 7 (D.D.C. 2019) (“[A]cquittal does not vitiate probable cause.”).
(1) The CA-1
Turning to the documents involved in the criminal case, Plaintiff appears to argue that (a)
because Santos said the original CA-1 from January 8, 2015 was filed incorrectly, because pages
from that CA-1 delivered to Lugo disappeared, and because Lugo then told Moyeno to fill out
the missing pages on January 14, 2015, then a reasonable jury could find that Santos and Lugo
engaged in a conspiracy to fabricate a criminal case against Plaintiff. ECF No. 157 at 45, ¶ 59;
ECF No. 157-8 at 97, ¶¶ 2–7. 32 Even if Plaintiff’s assertions are true, no reasonable jury could
find that these facts are sufficient to show that Plaintiff was the victim of a fabricated criminal
case.
Plaintiff cites to no evidence where Lugo or Santos told anyone that Plaintiff was the one
who fraudulently wrote on portions of the CA-1 which were supposed to be filled out by

32

Moyeno testified that Plaintiff was arrested “[b]ecause it so happened that forms [were] filled out [by Moyeno] and
they [were] left at the office of [Lugo]. And then when [Santos] c[ame] and sa[id] that [‘]this is filled out
incorrectly,[‘] and [then] two or three days afterward the form disappears, and I have to do a new one.” ECF No. 157
at 45, ¶ 59; ECF No. 157-8 at 97, ¶¶ 2–7.

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Moyeno. At Plaintiff’s criminal trial, Lugo stated that more than one supervisor could add
information to an incomplete CA-1, and he openly testified that he had added missing
information to Plaintiff’s CA-1. ECF No. 157 at 34, ¶ 15; ECF No. 157-14 at 48, ¶¶ 10–25, 49,
¶¶ 1–5. Additionally, at Plaintiff’s criminal trial, an expert forensic document examiner testified
that part of the January 14, 2015 CA-1 was not written by Plaintiff. ECF No. 157 at 33, ¶ 13;
ECF No. 157-15 at 46–51. When pressed by the court, Plaintiff’s attorney at his criminal trial
acknowledged that the forensic document examiner’s testimony did not involve any portion of
the document which Plaintiff was accused of falsifying. ECF No. 157-15 at 52, ¶¶ 20–24 (The
Court: “Do you have any—is [the expert] going to testify that anything that has been testified
that was written by Mr. González [Plaintiff] was not written by Mr. González?” M. GonzálezBothwell: “No, your honor.” The Court: “Well then–"[and subsequently dismissing the expert]).
Therefore, no evidence shows that Santos or Lugo alleged that Plaintiff had falsely made a
portion of the document in question.
(2) CA-17
Plaintiff’s evidence with regard to the allegedly fabricated CA-17 is even more sparse
than the CA-1. Plaintiff does not cite to any evidence to show that the USPS was responsible for
fabricating any specific portion of the CA-17 which was attributed to him in the indictment.
Plaintiff testified that he saw Santos making copies of a CA-17 with the alterations that appeared
in his criminal trial. ECF No. 157-2 at 55, ¶¶ 22–25; 56; ¶¶ 24–25; 57, ¶¶ 1–4. Even taking this
testimony as true, merely making copies of a document does not indicate that a person fabricated
the contents of said document and then accused someone else of making them to implicate that
person in a crime. Such a conclusion is based on improbable inferences and speculation.
Furthermore, Plaintiff admits that he did not see Santos make any alteration to the CA-17 or that

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either Santos or Lugo later attributed the alterations to Plaintiff. Without more, a reasonable jury
could not use this evidence to find a USPS conspiracy to frame Plaintiff for fraud.
Nevertheless, as proof that Lugo and Santos falsely attributed the documents in question,
Plaintiff proffers that Santos and Lugo failed to inform the OIG that Santos and Lugo had
“changed and altered the documents upon which Plaintiff González was accused . . . .” ECF No.
157 at 25, ¶ 85. In support of this assertion, Plaintiff draws on his own deposition testimony
where he alleges that,
“[Santos] had the opportunity to clarify the issue with the CA-1 [and the two CA17s] when he was interviewed [by the OIG agents investigating]. And manager
Lugo had the opportunity to clarify the issue with the CA-1 that they altered. And
that which [led to] my arrest . . . So if they [Lugo and Santos] didn’t do it, it is
because they had bad intentions toward me.”
ECF No. 158 at 17; ECF No. 157-2 at 59, ¶¶ 17-24. However, Plaintiff has not cited to any
evidence suggesting the source of his personal knowledge about what was said in any interview
between Santos or Lugo and any OIG agents. Therefore, Plaintiff’s allegations about what was
said or not said during interviews between OIG agents and Santos and Lugo is speculative and
cannot be proffered as evidence sufficient to defeat summary judgment. Such conclusory
speculation does not show that Lugo and Santos fabricated and then falsely attributed any portion
of said document to the Plaintiff. Thus, any claim based on the adverse employment action of
fabricated criminal charges must be dismissed.
d. Whether There Exists a Causal Connection Between Plaintiff’s Protected
Conduct and an Adverse Employment Action
To establish a prima facie claim for retaliation, a Plaintiff must demonstrate a causal
connection between the protected conduct and the adverse employment action to which the
employee was subject. Kelley, 707 F.3d at 115. Defendant argues that Plaintiff fails to show a

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causal connection between his EEOC activity or any protected conduct under the statutes and
any adverse employment action which he suffered from his supervisors. ECF No. 153 at 20, 22.
Like the general prima facie burden, the burden of showing a causal connection between
the protected conduct and an adverse action at the prima facie stage is “quite easy to meet.”
Crevier v. Town Spencer, 600 F. Supp. 2d 242, 262 (D. Mass. 2008) (citing Hodgens, 144 F.3d
at 165. In analyzing whether an exercise of protected conduct is causally connected to an adverse
employment action, “[v]ery close temporal proximity between protected activity and an adverse
employment action can satisfy a plaintiff's burden of showing causal connection.” Sánchez
Rodríguez v. AT&T Mobility Puerto Rico, Inc., 673 F.3d 1, 15 (1st Cir. 2012) (citing Calero
Cerezo, 335 F.3d at 25). A space of as long as a few months has been held to suggest causation.
Sánchez Rodríguez, 673 F.3d at 15 (“Sánchez filed his EEOC complaint in February of 2007 and
was disciplined in May of 2007. We believe this proximity is close enough to suggest causation,
especially given the inferences we must draw in Sánchez's favor.”). Whether Plaintiff has
succeeded in showing a causal connection between his protected conduct and any adverse
employment action will be addressed in turn, below.
i.

Plaintiff’s Accommodation and Reports of Injuries

Plaintiff offers evidence that his requests for accommodation were rejected and his
OWCP claims controverted in August, October, and December 2014, very shortly after he had
requested accommodations or reported an injury in August, October, and November 2014.
Plaintiff has presented evidence that he was subject to harassing comments by Santos and/or
Lugo in August 2014, December 2014, March 2015, and April 2015—all within a period of days
or, at most, less than a month after he engaged in protected Rehabilitation Act conduct in August
2014, October 2014, November 2014, and January 2015.

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While harassing comments made in March or April likely do not show adequate temporal
proximity to his denial or reasonable accommodations in August, October, or even November,
other statements in the record provide circumstantial evidence of a causal connection.
Particularly, a jury could conclude that Lugo’s statement to Plaintiff in April that “[Y]ou're just a
cheater . . . who had an accident on every route he was on” indicates that some of the harassing
comments were in response to Plaintiff reporting injuries. ECF No. 157 at 49, ¶ 75; ECF No.
157-17 at 1. Lugo and Santos’ statements in December and April that Plaintiff was a “repeat
offender” also indicates that the statements were made because of Plaintiff’s repeated reports of
injuries and requests for accommodation.
Finally, Plaintiff’s last request for accommodation in the record occurred in January
2015. Plaintiff was subject to unjustified discipline in April and May of the same year. First
Circuit precedent suggests that those events are adequately close in time to indicate causation.
Sánchez Rodríguez, 673 F.3d at 15. Additionally, other events occurring in April and May, such
as the harassing statements mentioned above, provide further evidence that the disciplinary
actions could have been related to Plaintiff’s request for accommodation. As such, there is
adequate evidence in the record which indicates that (1) certain harassing statements, (2) denial
of Plaintiff’s accommodations, and (3) acts of unjustified discipline had a causal connection to
Plaintiff’s reports of injuries and requests for accommodation.
ii.

Plaintiff’s FMLA Protected Absences

Turning to Plaintiff’s FMLA protected absences, Plaintiff’s first FMLA protected leave
occurred in January 2015, when Plaintiff was on leave from the Bayamón Branch for 45 days. As
above, the harassing statements to which Plaintiff was subject in April and May are adequately
close in time to suggest causation, and other statements may indicate that Plaintiff’s injury-

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related leave in January provoked statements which led to a hostile working environment. In
contrast, only a handful of harassing statements occurred in April 2015, after Plaintiff exercised
FMLA protected absences on April 14, 15, 16, and 28, 2015.
However, an even stronger causal connection exists between Plaintiff’s FMLA protected
absences in April and the unjustified discipline levied on Plaintiff. On the very same days which
Plaintiff took FMLA leave, Santos declared Plaintiff AWOL and put him on LWOP for two of
the days. On April 14, 2015 Santos also suspended Plaintiff’s driving privileges. Additionally,
less than a month later, Santos issued Plaintiff a letter of warning on May 7, and suspended
Plaintiff on May 12, 2015. These events, which happened mere days apart, are highly indicative
of causation, and Plaintiff therefore succeeds in showing a causal connection between his FMLA
absences and (1) certain harassing statements leading to a hostile work environment after
Plaintiff’s January 2015 leave of absence; (2) unjustified discipline for driving with an expired
license; and (3) unjustified discipline for Plaintiff’s legitimate FMLA absences in April 2015.
iii.

Plaintiff’s EEOC Contact

Plaintiff first made contact with an EEOC counselor on April 6, 2015. ECF No. 152 at 2,
¶ 9; ECF No. 152-6 at 1; ECF No. 157 at 3, ¶ 9. Shortly after his filing of an Information for PreComplaint Counseling on April 17, 2015, Plaintiff was the target of discipline on April 28 and
May 14, 2015. Therefore, less than a month passed between Plaintiff’s first EEOC filing and
Plaintiff being disciplined. These acts of discipline were close enough temporally to suggest
causation for purposes of Plaintiff’s prima facie case. Sánchez Rodríguez, 673 F.3d at 15.
In sum, with regard to Plaintiff’s prima facie claims of retaliation, Plaintiff has succeeded
in (1) demonstrating that he engaged in protected conduct under the ADEA, Rehabilitation Act,
and FMLA, (2) succeeded in demonstrating that he was subject to adverse employment actions,

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and (3) succeeded in showing a causal connection between several instances of protected
conduct and certain adverse employment actions. However, Plaintiff has failed to show he was
subject to an adverse employment action in the form of a fabricated criminal case or a
disadvantageous transfer to another branch. While any claims predicated only on those events
must be dismissed, Plaintiff’s remaining claims must proceed to step two of the McDonnell
Douglas framework.
2. Defendant’s Proffered, Non-Retaliatory Reasons
At step two, Defendant successfully articulates a non-retaliatory reason for two-out-ofthree classes of adverse conduct to which Plaintiff was subject; namely, for refusing to
accommodate and for disciplining Plaintiff. These reasons, on their face, are enough to satisfy
Defendant’s burden of production at step two of the McDonnell Douglas test. Bonefont
Igaravidez, 659 F.3d at 124. However, Defendant fails to offer a legitimate, non-retaliatory
reason for having created a hostile work environment in retaliation for Plaintiff’s protected
conduct. As already explained above with regard to Plaintiff’s Rehabilitation Act claims, when a
plaintiff has made out his prima facie case on a claim, but the defendant fails to provide a
legitimate, non-retaliatory reason, then the inference of retaliation stands, and summary
judgment must be denied with regard to that claim. Mesnick, 950 F.2d at 825.
a. Retaliatory Refusal to Accommodate
First, Defendant alludes to a non-retaliatory reason why Santos denied Plaintiff’s requests
for auxiliary assistance on his route on August 22 and October 1, 2014. According to Santos in
his EEOC Investigative Affidavit, auxiliary assistance is only provided when the volume of work
on a route is high and needs adjustment. ECF No. 152 at 8, ¶ 67; ECF No. 152-4 at 012. Santos,
however, could not remember if he “disapproved any requested assistance” and if he did, he

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wrote that his “reasons would be noted” in the paperwork associated with the claim. ECF No.
152-4 at 012, ¶¶ 60–63. Moreover, not only does he not remember what course of action he took,
Santos also fails to unequivocally assert whether the denials of Plaintiff’s requests for auxiliary
assistance on August 22 and October 1, 2014 were due to the requests not meeting the volume of
work requirements. However, even if Santos had provided a sufficient non-retaliatory reason, in
the end, as discussed further below, Plaintiff has proffered sufficient evidence to show pretext.
With regard to Plaintiff’s OWCP claim for November 24, Defendant argues that it was
Lugo’s duty to controvert the 2014 OWCP claim because he believed it was unnecessary. ECF
No. 153 at 16. Lugo wrote in his December 3, 2014 letter to the Claims Examiner at the
Department of Labor that Plaintiff’s claim was being controverted because,
[t]he alleged accident occurred in his carrier case. There are no witnesses to the
employee being injured. [The] Sack only weight was [sic] less than 2 pounds and
pulling is even lighter. The employee has minimal leave and requested [a] day off
after the incident. Although he was approved for 3 days, connecting annual leave
with accident cop [sic]. The employee is a repeated offender.
ECF No. 152-20 at 2. Thus, the non-retaliatory reason articulated by Lugo for controverting
Plaintiff’s OWCP claim is clear from the letter: He believed that Plaintiff was not telling the
truth about the accident, Plaintiff’s reported injuries were not credible based on the weight of his
“sack,” the Plaintiff was using the accident to secure time off, and Plaintiff had engaged in this
type of behavior previously. Such justification warrants a showing by Plaintiff of pretext.
Defendant, however, offers no legitimate, non-retaliatory reason as to why overweight
packages were not taken off Plaintiff’s route, nor does it deny the fact that in 2015, Plaintiff was
given packages that were heavier than he could lift. Therefore, with regard to any claim for
retaliation for failure to remove the heavy packages on Plaintiff’s route, the presumption of
retaliation survives.

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b. Discipline for Driving on an Expired License & FMLA Absences
Second, Defendant argues that Santos had legitimate reasons to discipline Plaintiff.
Defendant urges that Santos legitimately suspended Plaintiff’s driving privileges and issued a
Letter of Warning because he found out that Plaintiff was driving with an expired license. ECF
No. 153 at 21; ECF No. 152-21 at 00116; ECF No. 157 at 27, ¶ 93; ECF No. 157 at 27, ¶ 94.
With regard to the discipline for Plaintiff’s FMLA protected absences, Santos alleges that
Plaintiff was placed on Leave Without Pay and declared AWOL in accordance with the Postal
Labor Relations Manual because Plaintiff was absent from work on April 14, 15, 16, and 18,
2015 and failed to notify Santos of his absences. ECF No. 153 at 21; ECF No. 152-23 at 001,
003–004; ECF No. 152-23 at 001. These reasons meet Defendant’s burden to articulate reasons
which on their face justify a conclusion that the above disciplinary actions were taken for
nonretaliatory reasons.
c. Hostile Work Environment Retaliation
Finally, with regard to Plaintiff’s prima facie claim of retaliation through a hostile work
environment, Defendant proffers no legitimate, non-retaliatory reason why Plaintiff’s supervisors
on multiple occasions called him a “repeat offender,” “cheater,” “hustler,” and ‘Trucoman56.”
Defendant also provides no legitimate, non-retaliatory reason why Santos told Plaintiff that his
previous accommodation arrangements would be stuck up Lugo’s “ass.” To the extent that
Defendant has denied that these statements were ever made, a controversy of material facts has
arisen that must be submitted to a jury. However, should there be among these statements any
that the Defendant has not denied, then Defendant has failed to articulate a non-retaliatory reason
for the same, and thus the request for summary judgment regarding Plaintiff’s claim for hostile
work environment retaliation cannot prosper.

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3. Proof of Pretext
Once Defendant has asserted a legitimate, non-retaliatory reason for the adverse
employment action, under the McDonnell Douglas framework, “the ultimate burden falls on the
plaintiff to show that the employer's proffered reason is a pretext masking retaliation for the
employee's opposition to a practice” challenged under the applicable statute. Mesnick, 950 F.2d
at 827. There are “many sources of circumstantial evidence that, theoretically, can demonstrate
retaliation in a way sufficient to leap the summary judgment . . . hurdle[].” Id. at 828. They
include, for example, a showing that the plaintiff was subject to differential treatment in the
workplace, temporal proximity between the protected activity and the adverse employment
conduct, and “comments by the employer which intimate a retaliatory mindset.” Id. Plaintiff
succeeds in producing enough evidence which could convince a reasonable jury that Defendant’s
proffered reasons were pretext.
a. Retaliatory Refusal to Accommodate
Plaintiff succeeds in producing evidence which could convince a reasonable jury that
Defendant’s reason for denying Plaintiff’s request for accommodation was pretext. Plaintiff has
produced evidence which tends to show that with regard to his requests for reasonable
accommodation he was treated differently than other USPS employees seeking accommodations.
When Plaintiff asked for auxiliary support in August 2014, Santos demanded that Plaintiff bring
medical evidence to support his request. ECF No. 152-8 at 1; ECF No. 157 at 30, ¶ 5; ECF No.
157-6 at 3–4, ¶ 9; ECF No. 157 at 37, ¶¶ 22; ECF No. 157-9 at 50, ¶¶ 7–12; 55, ¶¶ 20–25; 56, ¶¶
1–10; 60, ¶¶ 9–15; ECF No. 157-10. Plaintiff asserts in his sworn declaration that he is not
normally required to provide medical evidence to his supervisor to request auxiliary assistance.
ECF No. 157-6 at 4, ¶ 9. Likewise, one witness to this incident, USPS employee Rolando

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Franquiz, testified that in 27 years of working for the USPS he had never witnessed a supervisor
demand medical documentary evidence from an employee except on this one occasion. ECF No.
157 at 37, ¶¶ 23; ECF No. 157-9 at 56, ¶¶ 20–25; 57, ¶¶ 1–6. This evidence indicates that other
USPS employees requesting auxiliary support were treated differently than Plaintiff, and Plaintiff
was required to produce evidence not normally required. A reasonable jury could conclude that
this differential treatment evidences a retaliatory animus.
With regard to Lugo’s decision to controvert Plaintiff’s November 24, 2014 OWCP
claim, Plaintiff cites to Lugo’s use of the word “repeated offender” arguing that the word
“clearly shows his discriminatory animus against Plaintiff González calling him a criminal term
due to Lugo’s perception that . . . he was committing some sort of crime . . . .” ECF No. 158 at
21. Taken in context of the entire letter, no reasonable jury could conclude that Lugo was
accusing Plaintiff of a crime. Nevertheless, a reasonable jury could find that the term was a
comment which intimates a retaliatory mindset. The term “repeat offender” suggests that Lugo
was controverting this claim because Plaintiff had reported injuries in the past—valid or
otherwise. Merely converting a claim because Plaintiff had previously filed injury claims could
lead a reasonable jury to find a retaliatory motive behind Lugo’s letter. Therefore, Plaintiff raises
a genuine issue of material fact upon which a jury could find that Defendant’s proffered reasons
for denying Plaintiff’s requests for accommodation were pretextual and that his requests were
actually refused for retaliatory reasons.
b. Discipline for Driving on an Expired License & FMLA Absences
Turning to Santos’ discipline of Plaintiff for driving with an expired license, Plaintiff
argues that Santos’ proffered reason for the discipline was a sham because as a matter of law
Plaintiff’s license was not expired. ECF No. 158 at 11; ECF No. 157 at 26, ¶ 91. He asserts that

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“in an obvious set up, supervisor Santos insisted that Plaintiff take a postal vehicle despite [his]
protestations. The incorrect letter of warning issued by Santos on May 7, 2015, was left without
effect because of the then [ ] Law 2005 PR Ley 61, enacted, August 23, 2005 [9 L.P.R.A. §
5064].” ECF No. 157 at 26, ¶ 91; 27, ¶ 92; ECF No. 157-6 at 5, ¶ 12; ECF No. 158 at 11.
Plaintiff cites no Puerto Rico case law in support of his interpretation of the statute at
issue. However, Section 5064 of Title 9 of the Laws of Puerto Rico, addressing the renewal of
driver’s licenses, provides “[a]ny person who holds a driver's license must renew it within thirty
(30) days as of the expiration date . . .” 9 L.P.R.A. § 5064. The law does not state that the license
is still valid and can be used during that 30-day period. Indeed, the term “expiration” means that
the referenced document is no longer legally valid upon a pre-determined date. Expire, Black's
Law Dictionary (11th ed. 2019) (“(Of an official document) to be no longer legally effective; to
become null at a time fixed beforehand . . . .”). Furthermore, the 2005 amendment to the law, to
which Plaintiff refers, provides that a proactive driver is allowed to renew his or her license as
early as “sixty (60) days prior to its expiration date.” 9 L.P.R.A. § 5064. Such a provision allows
a driver to avoid ever driving with an expired license and suggests that the statute seeks to avoid
drivers operating vehicles with expired licenses. Accordingly, Plaintiff is not correct that his
license was still valid when he was disciplined because Plaintiff’s license was indeed beyond the
expiration date at the time he was driving. Thus, Santos’ proffered reason for disciplining
Plaintiff for driving with an expired license was legitimate, regardless of any alternate
interpretation of 9 L.P.R.A. § 5064.
However, in Plaintiff’s unsworn declaration under penalty of perjury he asserts that
Santos “knew that my license was about to expire,” by “reviewing my files at the manager’s
office” and then “insisted that [I] take a postal vehicle despite my protestations.” ECF No. 157-6

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at 5. This declaration creates an issue of material fact which could lead a jury to conclude that
Santos had indeed retaliated against Plaintiff. Santos may have been legally justified to discipline
Plaintiff for driving without a license, but if Santos had encouraged, insisted, or ordered Plaintiff
to drive a postal vehicle knowing that he had an expired license and then disciplined him for
doing so, a reasonable jury could find that Santos had orchestrated this discipline in retaliation
for protected conduct that Plaintiff had exercised. Consequently, this claim must survive
summary judgment.
Finally, regarding Santos’ discipline of Plaintiff for his FMLA protected absences on
April 14th, 15th, 16th, and 28th of 2015, Plaintiff proffers evidence that after being disciplined
he filed a grievance which showed that all of Plaintiff’s absences in April 2015 were “justified or
permissible under the FMLA” and that he had provided proper notification for his absences. ECF
No. 157-6 at 4, ¶ 11; ECF No. 157-16 at 2. Plaintiff also produced evidence which shows that
Plaintiff was absent on April 14, 15, 16, and 28 to attend to his pregnant wife. ECF No. 157-5 at
3; ECF No. 152-3 at 010. This constitutes a classic dispute of material fact. Santos argues that his
disciplinary actions were fully justified, while Plaintiff asserts that later events demonstrated that
the discipline was not justified and that he notified his supervisors of his FMLA absences. Such a
dispute must be resolved by a jury. Additionally, the close temporal proximity between
Plaintiff’s EEOC first filing on April 17, 2015, and the disciplinary measures taken against him
after said date could lead a reasonable jury to conclude that Santos took advantage of Plaintiff’s
FMLA protected absences to retaliate against Plaintiff for EEOC activity. Such evidence is
sufficient to create a dispute of material fact as to whether Defendant’s proffered reason was
pretext to cover retaliation. Therefore, a grant of summary judgment on Plaintiff’s retaliation
claim for unjustified discipline is inappropriate.

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D. FMLA INTERFERENCE CLAIM
Finally, Plaintiff also brings a claim for “interfering with, restraining, and denying the
exercise of and the attempt to exercise” Plaintiff’s Family Medical Leave Act rights. ECF No. 28
at 31, ¶ 152. In challenging Plaintiff’s claim for interference with his substantive FMLA rights,
Defendant only asserts that “a plaintiff can not [sic] allege jurisdiction over FMLA violations
under [Title VII, the Rehabilitation Act, and the ADEA]” because those statutes provide “the
exclusive remedy for federal employees alleging discrimination in the workplace.” ECF No. 153
at 25.
However, the FMLA permits employees to bring claims under a separate cause of action
under the FMLA itself. For example, as with other retaliation claims, an employee may bring a
cause of action under retaliation and “must demonstrate that his employer intentionally
discriminated against him in the form of an adverse employment action for having exercised an
FMLA right.” González Rodríguez, 605 F. Supp. 2d at 370. The FMLA also creates another
cause of action called “interference claims, in which an employee asserts that his employer
denied or otherwise interfered with his substantive rights under the Act . . . .” Id. (citing 29
U.S.C. § 2615(a)(1)). “To state a claim of interference with a substantive right, an employee
need only demonstrate by a preponderance of the evidence that he was entitled to the benefit
denied.” Id. (citing Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st
Cir. 2005)). Consequently, Defendant’s argument as to Plaintiff’s FMLA interference claim is
without merit. Therefore, Plaintiff’s FMLA interference claim must also survive summary
judgment and for the reasons discussed above, Plaintiff’s retaliation claim under the FMLA must
also survive summary judgment.

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V.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is hereby

GRANTED IN PART AND DENIED IN PART. With regard to Plaintiff’s age discrimination,
and age-based hostile work environment claims under the ADEA, Defendant’s motion for
summary judgment is GRANTED. Additionally, Defendant’s motion for summary judgment on
Plaintiff’s ADEA, Rehabilitation Act, and FMLA retaliation claims predicated on the fabrication
of criminal charges is GRANTED. The Summary judgment motion is also GRANTED on all of
Plaintiff’s claims of discriminatory failure to accommodate in violation of the Rehabilitation Act
based on acts which occurred before February 20, 2015. Accordingly, the above claims are
DISMISSED WITH PREJUDICE.
However, Defendant’s motion for summary judgment is DENIED with regard to
Plaintiff’s disability discrimination, hostile work environment, and remaining failure to
accommodate claims under the Rehabilitation Act. Also, Defendant’s motion for summary
judgment is DENIED with regard to Plaintiff’s retaliation claims under ADEA, the
Rehabilitation Act, and FMLA for creating a hostile work environment, refusing to
accommodate Plaintiff, and for levying unjustified discipline. Finally, Defendant’s motion for
summary judgment on Plaintiff’s interference claim under the FMLA is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 24th day of March, 2022.
s/Marcos E. López
U.S. Magistrate Judge

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