Oquendo v. Costco Wholesale Corporation

Filing 52

OPINION AND ORDER: Granting 26 Motion for Summary Judgment in its entirety; Granting 39 Motion to Strike Plaintiff's Sur Reply; Granting 38 Motion to Strike scandalous and slanderous language, all filed by Costco Wholesale Corporation. Judgment will be entered accordingly. IT IS SO ORDERED. Signed by US Magistrate Judge Marshal D. Morgan. (GDM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOAN OQUENDO,
Plaintiff,
v.

CIV. NO. 17-2238 (MDM)

COSTCO WHOLEHOUSE
CORPORATION
Defendants.
OPINION AND ORDER
Plaintiff Joan Oquendo (“plaintiff” or “Oquendo”), a current Costco employee,
brings this action against Costco Wholehouse Corporation d/b/a Costco Wholehouse
#365 (“defendant” or “Costco”) alleging pregnancy and gender discrimination and
retaliation in violation of Title VII of the Civil Rights Act of 1962, 42 U.S.C. §§ 2000e-5
et seq. (“Title VII), disability discrimination in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and age discrimination in violation
of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Oquendo
also asserts supplemental claims under Puerto Rico’s Law 3 of March 13, 1942, as
amended, P.R. Laws Ann. tit. 29, §§ 467–474 (“Law 3”); Law 100 of June 30, 1959, as
amended, P.R. Laws Ann. tit. 29, §§ 146–151 (“Law 100”); Law 44 of July 2, 1985 P.R.
Laws Ann., tit. 1, § 504 (“Law 44”); Law 115 of December 20, 1991, P.R. Laws Ann. tit.
29, §§ 194 et seq. (“Law 115”); and Articles 1802 and 1803 of the Puerto Rico Civil Code,
P.R. Laws Ann. tit. 31, § 5141.
Presently before the Court is Costco’s motion for summary judgment (Docket
No. 26,) which Oquendo opposed. (Docket No. 32). She also filed a statement of
additional facts with her opposition. (Docket No. 33). Costco then filed a reply in
response thereto. (Docket Nos. 35-1; 36). Next, Oquendo filed a sur-reply. (Docket No.
37). In light of the findings of fact and legal discussion set forth below, the Court
GRANTS Costco’s motion for summary judgment in its entirety.

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Before delving into the analysis of Costco’s motion for summary judgment,
however, the Court must entertain two motions to strike filed by Costco, which are
directly related to the summary judgment motion and, as such, engross the Court’s
opening discussion.
I.

Costco’s Motions to Strike

In its first motion, Costco asks the Court to strike specific “scandalous” and
“slanderous” language directed at Costco and its legal counsel, which was allegedly
included in plaintiff’s opposition to the motion for summary judgment and in plaintiff’s
sur-reply. (Docket No. 38). In its second motion to strike, Costco requests that the Court
strike plaintiff’s sur-reply (Docket No. 37) for being untimely filed and for not being filed
with prior leave of Court, in violation of Local Rule 7(c). (Docket No. 39). Plaintiff filed
a single opposition to both motions to strike. (Docket No. 40). For the following reasons,
the Court GRANTS both motions to strike.
A.

Motion to Strike “Scandalous” and “Slanderous” Language

Judge Bruce S. Mencher defined civility as:
[The] decent behavior and treatment characterized by
generally accepted social behavior and politeness practiced
toward those with whom we come into contact whether
they be judge, lawyer, witness, or court personnel.
Bruce S. Mencher, Civility: A Casualty of Modern Litigation, The Washington Lawyer,
Sept.–Oct. 1993, at 19, 20. “To opposing counsel, a lawyer owes the duty of courtesy,
candor in the pursuit of the truth, cooperation in all respects not inconsistent with the
client’s interests and scrupulous observance of all mutual understandings.” American
College of Trial Attorneys, Code of Trial Conduct, p. 1 (1994). “The lack of civility within
the legal profession constitutes a ‘societal problem, increased costs to the client, and the
need for greater judicial leadership . . . .’” Jaen v. Coca-Cola Co., 157 F.R.D. 146, 152-53
(D.P.R. 1994) (citing Mencher, supra, at 20). In pertinent part, moreover, Canon 29 of
the Puerto Rico Canons of Professional Ethics states that:
Clients, not lawyers, are the litigants. Any ill-feeling
existing between clients should not influence counsel in
their conduct and demeanor toward each other or toward
litigants in the case. All personal matters between counsel

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should be scrupulously avoided. During the course of a trial
it is improper to allude to the personal history or individual
peculiarities or idiosyncrasies of opposing counsel.
Personal colloquies between counsel which cause delay and
provoke disputes should also be avoided.
It would be highly improper for a lawyer to make false
imputations which affect the reputation and good name of
a colleague. When there are serious grounds for complaint
against colleagues, it is the duty of a lawyer to submit his
charges to the competent authorities, using for that
purpose the means provided by law.
§29 Personalities arising between opposing counsel, T. 4 Ap. IX, § 29. While
the Canons of Professional Ethics of Puerto Rico do not govern the conduct of attorneys
in federal court, “[n]onetheless, the raison d’etre of both the Model Rules and
the Puerto Rico Canons of Ethics are akin—to preserve the integrity of the legal
profession.” In re Jesus M. Rivera–Arvelo, USDC–PR, 830 F. Supp. 665, 667, n.5
(D.P.R. 1993). Because the Canons of Professional Ethics of Puerto Rico are similar in
spirit to those of the American Bar Association Model Rules of Professional Conduct,
courts in this District look at the Puerto Rico Canons and their interpretive
jurisprudence for illustrative purposes. Reed v. Seguros Triple-S, Inc., No. 96-1171
(SEC), 1997 WL 711371, at *1 (D.P.R. Oct. 24, 1997).
In the present case, two of the plaintiff’s filings in response to Costco’s motion for
summary judgment included unprofessional and highly improper language clearly
aimed at bad-mouthing Costco and, necessarily, its counsel. Plaintiff, for example,
requested that the Court “. . . deny a deceitful dispositive motion,” and referred to
Costco’s motion as “profuse with deceitful storytelling of what defense wants the Court
to believe.” Basically, plaintiff’s counsel accused Costco, and more pointedly, its
attorneys, of engaging in deceitful and nefarious tactics in its motion for summary
judgment. It goes without saying that it is highly unethical and indecorous for an
attorney to make dishonest or damaging imputations against the opposing party or
against the reputation and good name of a fellow attorney. Costco correctly understood
plaintiff’s counsel’s accusations as a direct attack on the professional integrity and
reputation of its attorneys. The unfounded word choices and ill-mannered form of

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“argumentation,” included in the plaintiff’s filings, serve no purpose but to throw
“shade” at the opposing side, while doing nothing to advance her position in a legitimate
and juridical sense. Such conduct is unbecoming of a member of the bar of this Court
and will not be tolerated.
Furthermore, plaintiff’s counsel’s poor choice of words has required the Court to
utilize its scarce judicial resources to discuss his lack of civility and imprudent
arguments. It is also troubling that, upon reviewing Costco’s motions, it became pellucid
to the Court that plaintiff’s categorization of Costco’s arguments as “deceitful” were in
fact deceiving because it became clear to the Court that Costco’s motion was grounded
on sound legal arguments. Plaintiff, of course, may legitimately disagree with Costco’s
position but rather than posturing with unethical averments directed at the reputation
of the opposing side, she should have instead focused on advancing her legal arguments
in a legitimate and well-reasoned manner.
The Court cannot stress enough that attorneys admitted to practice in this Court
“should avoid disparaging personal remarks or acrimony toward opposing counsel, and
should remain wholly uninfluenced by any ill feeling between the respective clients” and
they “should abstain from any allusion to personal peculiarities and idiosyncrasy of
opposing counsel.” American College of Trial Attorneys, Code of Trial Conduct, p. 7
(1994). Moreover, the parties and their counsel were specifically instructed in this case
“to meet their legal and ethical obligations to each other, to litigants and to the system
of justice, thereby achieving the twin goals of civility and professionalism, both of which
are hallmarks of a learned profession dedicated to public service.” See Chief Judge
Gustavo A. Gelpí’s Standing Order citing to the standards of civility initially designed
in 1996 by the late United States District Judge Salvador E. Casellas. (Docket No. 4-5).
The Court recognizes that litigating is not always a “cup of tea,” nevertheless,
civility must always be observed between the parties and their counsel, as it is a vital
pillar in the justice system and in our society. To that effect, “courts have a responsibility

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not to permit attorneys to ignore the concept of civility when its disregard may hinder
the quest for justice.” Jaen, 157 F.R.D. at 152–53 (citing Mencher, supra, at 20).
The Court will not tolerate the deliberate disregard of civility displayed by
plaintiff’s counsel in his pleadings. Therefore, in enforcing its solemn duty and
responsibility to ensure compliance with the pertinent rules of ethics and professional
conduct, the Court admonishes plaintiff’s counsel for his lack of civility and orders him
to refrain from using unprofessional and unethical language in his filings. Costco’s
motion to strike is GRANTED and the language complained of by Costco is stricken.
B.

Motion to Strike Plaintiff’s Sur Reply

Costco also moves to strike plaintiff’s sur reply (Docket No. 37) on the grounds
that it was untimely filed, and it was filed without prior leave of Court in violation of
Local Rule 7(c). Costco is correct. The sur reply was indeed belatedly filed without first
obtaining leave from the Court. More specifically, Costco filed its reply in response to
plaintiff’s opposition to the motion for summary judgment on December 21, 2018.
(Docket No. 36). Pursuant to Local Rule 7(c), Plaintiff had seven (7) days to file a sur
reply, that is, until December 28, 2018. Plaintiff however filed it on January 2, 2019,
five (5) days after the required seven-day timeframe had expired. (Docket No. 37). As
such, plaintiff’s sur reply is indeed untimely and, in addition, plaintiff also failed to
request prior leave of Court, which Local Rule 7(c) compels. To make matters worse, in
response to Costco’s motion to strike, plaintiff did not offer any justification for her noncompliance with the requirements of Local Rule 7(c). (Docket No. 40). Plaintiff only
claimed that “defendant attempt[s] to silence [her] sound arguments in favor [of]
submitting to trial examination of defendant’s unlawful actions.” Id. Nothing more.
Plaintiff did not justify her failure to comply with Local Rule 7(c) nor did she raise a
legitimate argument in order to avoid the inevitable striking of her intended sur-reply.
Based on the foregoing, in strict compliance with the Local Rule’s directives,
plaintiff’s sur reply will be stricken from the record. Costco’s motion to strike plaintiff’s
sur reply at Docket No. 37 is GRANTED. The sur reply will not be considered. 1
See e.g. Estate of Berganzo Colon v. Ambush, 2011 WL 13210047, at *2 (D.P.R. Mar. 4, 2011) (granting
defendant’s motion to strike because the plaintiffs’ “supplement” was filed without prior leave of court);
Esso Standard Oil Co. (Puerto Rico) v. Rodriguez Perez, 2005 WL 114080, at *5 (D.P.R. Jan. 20, 2005)
1

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The Court can now turn to the merits of Costco’s motion for summary judgment.
II.

Summary Judgment Standard

Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see
Fed. R. Civ. P. 56(a). “An issue is genuine if ‘it may reasonably be resolved in favor of
either party’ at trial, . . . and material if it ‘possess[es] the capacity to sway the outcome
of the litigation under the applicable law.’” Iverson v. City of Boston, 452 F.3d 94, 98 (1st
Cir. 2006) (alteration in original) (citation and internal quotation marks omitted).
The moving party, in this Costco, bears the initial burden to demonstrate the lack
of evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 325. To defeat
summary judgment, the non-moving party must “set forth specific facts showing that
there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
When considering a motion for summary judgment, the court must view the
evidence in the light most favorable to the nonmoving party and give that party the
benefit of all reasonable inferences. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). Moreover, at the summary judgment stage, the court does not make
credibility determinations or weigh the evidence. Id. If the court finds that some genuine
factual issue remains, the resolution of which could affect the outcome of the case, then
the court must deny summary judgment. Id. at 248.
III.

Factual Findings

Taking all disputed facts in the light most sympathetic to plaintiff, as the party
opposing summary judgment, the Court makes the following factual findings, which are
either undisputed or conclusively supported by the evidentiary record. 2
Plaintiff Oquendo currently works at Costco as a Staff Level Manager. She began
working for Costco on September 1, 2003, as a Marketing Clerk. Throughout her
(granting motion to strike defendants’ replies because they were belatedly filed and filed without first
obtaining leave from the court. The replies were not considered.)
2 Pursuant to Local Rule 56, the Court will only deem as genuinely opposed those statements of material
facts which the objecting party properly denied or qualified in strict compliance with Local Rule 56(c).
The Court also credits only facts properly supported by accurate record citations. See Local Rule 56(e).

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employment with Costco, Oquendo received copies of its Employee Agreements. Costco
has policies prohibiting discrimination and retaliation and Oquendo was aware of such
policies.
On August 29, 2005, Oquendo was promoted to Marketing Manager. A few
months later, on December 8, 2008, she was again promoted to Front End Manager, a
staff level position. Then, on October 4, 2010, Oquendo was assigned the position of
Administrative Manager. On April 1, 2014, Oquendo was transferred to the position of
Receiving Manager at the Caguas Warehouse.
As a Receiving Manager, Oquendo had a full-time management and leadership
position. The essential duties of a Receiving Manager include: scheduling, developing,
counseling and directing shipping and receiving personnel; making recommendations
as to hiring, promotions, and termination of employees to the Warehouse Manager;
drafting and participating in the presentation of employee reviews; and reviewing
employee time cards. (Docket No. 26-13). The above duties constitute forty percent (40%)
of the positions’ essential duties. In addition, a Receiving Manager’s essential duties
include: overseeing security measures for warehouse access (ten percent (10%));
observing

employees’

paperwork

and

performance

to

ensure

that

proper

receiving/shipping procedures are followed (ten percent (10%)); overseeing department
maintenance and repair of fixtures and equipment and supply requisition (five percent
(5%)); providing and ensuring prompt and courteous member service (ten percent
(10%)); assisting in receiving duties and other areas of the department, as needed
(twenty five percent (25%)); implementing and upholding safety procedures, and
monitoring foot traffic to ensure route safety. Id. Moreover, the essential duties of a
Receiving Manager require the following physical demands: bending, squatting,
kneeling, reaching above the shoulders and below the shoulders, and lifting and
carrying up to fifty (50) pounds. Id.
On February 8, 2016, Oquendo requested and was granted a medical leave under
the Family Medical Leave Act (“FMLA”) due to a serious health condition. The FMLA
The Court has disregarded all arguments, conclusory allegations, speculation, and improbable inferences
disguised as facts. See Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir. 2006);
Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

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leave began retroactively on February 1, 2016 and concluded on February 17, 2016.
On March 17, 2016, Oquendo submitted to Costco a (first) medical certificate from
Pavia Hospital, which indicated that: she was twelve (12) weeks pregnant; was admitted
to the Hospital on March 14; remained under treatment until March 17, the date when
she was discharged; and, could return to work on March 21. Through the submission of
such medical certificate, Patrick Bergeron (“Bergeron”), the General Manager of the
Caguas Warehouse, first learned of Oquendo’s pregnancy.
On March 21, 2016, Oquendo submitted to Costco a (second) medical certificate
from the Maternal Fetal Medicine and Gynecology Center, dated March 21, 2016, which
stated that she was fourteen (14) weeks pregnant and had been admitted to Pavia
Hospital on March 21, 2016. The medical certificate recommended that Oquendo be
placed on rest until March 28, 2016. On April 7, 2016, Oquendo submitted to Costco a
(third) medical certificate from the Maternal Fetal Medicine and Gynecology Center,
dated April 7, 2016, which indicated that Oquendo had been under their professional
care from March 29, 2016 until April 8, 2016, during which time she was totally
incapacitated.
Pursuant to the abovementioned medical certificates, Costco extended Oquendo’s
FMLA leave—which was originally scheduled to expire on February 17, 2016—
to April 8, 2016. By then, Oquendo had been released by her physician to go back to
work and, as a result, she called Costco to inform that she was cleared to return to work.
By April 11, 2016, Bergeron knew that Oquendo was released by her physician.
According to Bergeron, he asked Oquendo if she was willing to take a one-week vacation
leave at that time because the schedule for that week had already been prepared. Such
vacation leave was paid to Oquendo in full. Furthermore, such vacation days were later
restored to her, and, as such, her vacation leave balance remained unaltered.
According to Costco, this was a standard practice of the business to allow it to
adjust its payroll and its schedule in the event of employees returning from leave. As
part of their business practice, Costco prepares the employee’s schedules 2 or 3 weeks
in advance, and it is Costco’s practice that if an employee is released from a leave of
absence (“LOA”) and he or she calls to return to work before the next schedule is

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prepared, Costco asks the employee to take vacation time while Costco adjusts the
payroll.
Oquendo returned to work on April 18, 2016 and was assigned to rotating shifts.
That week she was specifically assigned the night shift because other managers were
on vacation, the Warehouse was undergoing overnight renovations, and Human
Resources trainings were being conducted, beginning at 5:00AM. For purposes of
Oquendo’s claims, the Staff Schedules for the relevant period—the week ending on
May 17, 2015, to the week ending in June 26, 2016—show that prior to her pregnancy,
the shifts assigned to Oquendo by Costco varied throughout the year. Specifically,
Oquendo was assigned to work different schedules, which frequently included night
shifts.
About a month later, on May 24, 2016, Oquendo met with Bergeron and expressed
her concern regarding her work schedule. More specifically, Oquendo told Bergeron that
the hours he was scheduling for her were too difficult for her to manage because of her
pregnancy. During that meeting, Oquendo requested to work day shifts through the
remainder of her pregnancy and Costco gave her a Work Restriction Form that she had
to return to Costco after it had been completed by her doctor. As a result of the meeting,
Bergeron temporarily assigned Oquendo to work the 8:00AM to 5:00PM shift until she
returned the completed Work Restriction Form. According to Bergeron, Oquendo had
been performing her job up to that point and had not complained about having any
problem lifting things or having any other issue. Other Costco employees had been
scheduled daytime schedules like the one requested by Oquendo.
On June 1, 2016, Oquendo visited her doctor, who in turn completed the Work
Restriction Form that same day. On June 4, 2016, she gave Costco the Work Restriction
Form filled out by her doctor. Bergeron met briefly with Oquendo on that same day. Also
present at the meeting were Sheilla Birriel (“Birriel”), Payroll Clerk, and Patricia
Sullivan (“Sullivan”), Assistant Warehouse Manager. During the meeting, Bergeron
informed Oquendo that he would send the Work Restriction Form to the Human
Resources Department at Costco and get back to her once he had a response from

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Human Resources regarding the matter. While Costco evaluated the Work Restriction
Form, Oquendo continued working the 8:00AM to 5:00PM shift.
The Work Restriction Form revealed that Oquendo’s doctor imposed several
restrictions on her physical capacity, specifically, it stated that she was: (1) limited to
lifting or carrying objects that were less than ten (10) pounds; (2) restricted in reaching
above her shoulders; (3) restricted in bending/stooping, twisting of the trunk, full
squatting, partial squatting; and, (4) restricted in kneeling or climbing stairs. In
addition, Oquendo’s doctor recommended that she be assigned eight-hour shifts from
8:00AM to 5:00PM and to avoid night shifts.
The Work Restriction Form did not request any kind of leave for Oquendo.
Bergeron testified during his deposition that the Work Restriction Form did not indicate
that Oquendo could not return to work and did not specifically ask for a leave of absence.
After evaluating the restrictions imposed to Oquendo by her doctor, Costco
concluded that she was unable to perform the essential duties of her position as a
Receiving Manager. According to Bergeron, the Leave Department told him that the
medical restrictions imposed on Oquendo did not allow her to work at any position at
the warehouse at that time. Costco’s Leave Department makes the decision to send an
employee on leave. Costco’s Leave Department at Corporate made the decision to place
Oquendo on leave in June 2016.
As a result, on June 10, 2016, Bergeron and Sullivan met with Oquendo to discuss
with her the work restrictions imposed upon her by her doctor in the Work Restriction
Form. Bergeron and Sullivan explained to Oquendo that, given the severity of the
restrictions imposed, there was no position available in the Warehouse that she could
perform. After considering Oquendo’s medical restrictions, Costco offered to place her
on a LOA. According to Costco, it offered a LOA as an accommodation to Oquendo. She
was granted time-off as a Pregnancy Disability Leave, beginning on June 11, 2016,
which would conclude on September 18, 2016 (hereinafter referred to as the “June 2016
LOA”). This was a paid leave. During the above meeting, Birriel gave Oquendo the
necessary documents to request Salary Continuation Benefits from UNUM Insurance

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in connection with the June 2016 LOA. 3 In turn, Oquendo requested such benefits,
resuming the benefits she had already received when she was on FMLA leave from
February 8, 2016 to April 8, 2016. Oquendo was paid accordingly.
Oquendo did not speak directly with Costco Human Resources in any of her
meetings with Bergeron.
The June 2016 LOA was originally scheduled to conclude on September 18, 2016.
Nevertheless, after Oquendo gave birth, she requested and was granted additional time
under the LOA for medical reasons.
While Oquendo was out on the June 2016 LOA, her position—Receiving
Manager—was temporarily assigned to a Junior Manager, Mr. Carlos Tolentino
(“Tolentino”), until she returned. Tolentino is a male employee in his mid-thirties.
Tolentino performed the duties of a Receiving Manager.
Ultimately, Oquendo’s June 2016 LOA, which was extended at her request,
concluded in January 2017, at which time she returned to work at Costco. She returned
to the same Receiving Manager position which she previously held and continued to
receive the same benefits that she had before. Upon her return to work, Oquendo
received a salary increase.
On June 17, 2016, Oquendo filed a discrimination charge against Costco before
the Equal Employment Opportunity Commission (“EEOC”) based on alleged sex and
disability discrimination and retaliation.
Oquendo was, and presently is, a salaried Costco employee.

Pursuant to Costco’s Personal Medical Leave policy, if a salaried employee is going to be out of work for
more than one (1) week due to a medical condition, Costco provides said employee with Salary
Continuation Benefits. As such, Costco directly pays the first week of the employee’s salary in full. In the
event that the employee is required to be out of work for longer than one week, the employee must contact
UNUM Insurance to initiate “Salary Continuation Benefits.” UNUM Insurance is an insurance paid by
Costco to provide salary continuation benefits to its employees. UNUM Insurance continues to pay salary
benefits up to a maximum of twenty-six (26) weeks to Costco employees on extended leaves. During the
first twelve (12) weeks of the twenty-six (26) day timeframe, Costco employees are paid one hundred
percent (100%) of their salary. For the remaining thirteen (13) weeks, they are paid sixty percent (60%)
of their salary.
If an employee returns from a LOA and subsequently requests and is granted another LOA within
90 calendar days or less, the original LOA date will apply for purposes of determining the employee’s
available leave time and benefits.
3

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IV.

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Discussion

In her complaint, Oquendo’s chief argument is that Costco unlawfully
discriminated and retaliated against her because of her gender, pregnancy, age and
disability, by placing her on an “involuntary” LOA while she was pregnant, i.e., the June
2016 LOA. Oquendo claims that she wanted to, and could, continue working while
pregnant, if only Costco had relieved her from the physical demands of her position.
Oquendo also complains of differential treatment because she was pregnant, alleging
that other employees were granted reasonable accommodations and continued to work,
an option withheld from her because she was placed on a LOA.
Costco moves for summary judgment on all the claims asserted by Oquendo
alleging that: (1) she cannot establish a prima facie claim of gender and pregnancy
discrimination under Title VII; (2) she cannot establish a prima facie case of disability
discrimination under ADA; (3) she failed to exhaust administrative remedies and cannot
establish a prima facie case of age discrimination under ADEA; and (4) she cannot
establish a prima facie case of retaliation under Title VII. Costco also moves for
summary judgment on all supplemental claims under Puerto Rico law. The Court
addresses each argument seriatim.
A.

Pregnancy discrimination under Title VII

Title VII makes it an unlawful employment practice for an employer to “discharge
any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act of
1978 (“PDA”) extended Title VII’s protection against discrimination to specifically
include discrimination “because of or on the basis of pregnancy, childbirth or related
medical conditions.” 42 U.S.C. § 2000e(k). Martinez-Burgos v. Guayama Corp., 656 F.3d
7, 12 (1st Cir. 2011). The PDA thus clarified that Title VII’s prohibition against sex
discrimination applies to discrimination based on pregnancy. The PDA’s second clause
says that employers must treat “women affected by pregnancy . . . the same for all
employment-related purposes . . . as other persons not so affected but similar in their
ability or inability to work.” Id. Young v. UPS Inc., 575 U.S. 206 (2015).

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Oquendo filed this action claiming that Costco discriminated against her because
of her pregnancy by placing her on an “involuntary” LOA in June 2016 rather than
accommodating her pregnancy-related restrictions.
Where, as here, there is no direct evidence of discrimination, the Court applies
the McDonnell Douglas burden shifting framework to determine whether Oquendo can
prove intentional discrimination under Title VII. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). The initial burden falls upon the plaintiff to establish
a prima facie case of pregnancy discrimination. Oquendo must therefore show that: (1)
she was pregnant or indicated an intention to become pregnant; (2) she was qualified
for her position and/or performed her job satisfactorily; (3) the employer took an adverse
employment action against her; and (4) the employer continued to have her duties
performed by a comparably qualified person. See Smith v. F.W. Morse & Co., 76 F.3d
413, 421 (1st Cir. 1996); Medina v. Adecco, 561 F.Supp.2d 162, 168-69 (D.P.R. 2008).
The First Circuit has described meeting the initial prima facie case as “not especially
burdensome” and “not onerous.” Greenberg v. Union Camp Corp., 48 F.3d 22, 26 (1st Cir.
1995); Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003).
Plaintiff’s satisfaction of her prima facie burden creates a rebuttable presumption
that discrimination prompted the challenged adverse employment action. Cumpiano v.
Banco Santander P.R., 902 F.2d 148, 153 (1st Cir. 1990). Defendant may rebut this
presumption by articulating a nondiscriminatory reason for the adverse employment
action, which eliminates the presumption and shifts the burden back to Plaintiff. Smith,
76 F.3d at 421. Plaintiff must then point to sufficient evidence to demonstrate that the
employer’s proffered reason is a mere pretext and that the true reason is discriminatory.
Id.
Under the McDonnell Douglas framework, Oquendo must first establish the
prima facie elements for her pregnancy discrimination. Turning to the specific facts of
this case, Costco concedes that Oquendo satisfies the first element of her prima facie
case because she was pregnant. Costco however claims that Oquendo cannot satisfy the
second, third or fourth elements and, therefore, her pregnancy discrimination claim

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fails. On her part, Oquendo omits any discussion of the prima facie elements, which she
is required to prove at the first step of the McDonnel Douglas framework.
As to the second element of plaintiff’s prima facie case, whether she was qualified
for her position and whether she could perform her job satisfactorily, Costco claims that
Oquendo was temporarily not qualified to perform her job as a Warehouse Manager
because the work restrictions imposed by her physician when she was pregnant
prevented her from performing essential duties of her position. The uncontested record
proves that Costco is correct.
It is undisputed that Costco specifically described the essential and non-essential
duties of a Receiving Manager in a document titled “Job Analysis.” (Docket No. 26-13).
It is also uncontested that the essential duties of a Receiving Manager included,
amongst others, assisting in receiving duties and other areas of the department, as
needed, and implementing and upholding safety procedures and monitoring foot traffic
to ensure route safety. Id. Moreover, the undisputed record shows that the essential
duties of a Receiving Manager required the following physical demands: bending,
squatting, kneeling, reaching above the shoulders and below the shoulders, and lifting
and carrying up to fifty (50) pounds. Id. It is not surprising therefore that during
Oquendo’s deposition, when she was asked how much physical work she performed as a
Receiving Manager, she answered: “all the work is physical.” (Docket No. 26-2 at 12).
She also stated during her deposition that as part of her duties she lifted boxes that
weighed ten or more pounds. Id.
The undisputed record also shows that in the Work Restriction Form, dated
June 1, 2016, Oquendo’s physician imposed several medical restrictions on her physical
ability to work because of her pregnancy. Such restrictions were unequivocal and
specifically stated that Oquendo was restricted: (1) to lifting/carrying no more than ten
(10) pounds; (2) in reaching above her shoulders; (3) in bending/stooping, twisting of the
trunk, full squatting, partial squatting; and, (4) in kneeling or climbing stairs. On this
record, such medical restrictions are undisputed. As discussed above, bending,
squatting, kneeling, reaching above the shoulders and below the shoulders, and lifting
and carrying up to fifty (50) pounds were—on this record and at this stage—essential

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duties of a Receiving Manager. Oquendo could not lift or carry more than ten (10)
pounds and her position required her to lift and carry up to fifty (50) pounds.
Furthermore, Oquendo could not reach above her shoulders, bend, twist her trunk,
squat or kneel—all of which were physical requirements of her position.
Given this evidence, therefore, no reasonable factfinder could conclude that
Oquendo could perform the essential physical duties of her position during the relevant
period. Furthering such conclusion is the fact that Oquendo did not point to any evidence
of record to show otherwise. Based on the foregoing, because Oquendo could not perform
the requirements of her position during her pregnancy—as a result of her medical
restrictions—the Court cannot find that she was qualified for her position—even if it
was only temporary. Accordingly, Oquendo cannot meet the second prima facie element
for a Title VII pregnancy discrimination claim.
While the Court needs not run through the remaining prima facie elements,
Oquendo fares no better proving that she suffered an adverse employment action—the
third element of her prima facie case. An adverse employment action “typically involves
discrete changes in the terms of employment, such as ‘hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing
significant change in benefits.’” Cham v. Station Operators, Inc., 685 F.3d 87, 94 (1st Cir.
2012) citing Morales Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010). “A materially
adverse change in terms and conditions of employment must be more disruptive than a
mere inconvenience or an alteration of job responsibilities. Whether an employment
action is materially ‘adverse’—and therefore actionable under Title VII—[is] gauged by
an objective standard.” Id.
In the present case, after evaluating the medical restrictions imposed on Oquendo
during her pregnancy, Costco determined that given the severity of the restrictions,
there was no position available in the warehouse that she could perform, including her
own position. 4 Costco therefore offered to place her on the June 2016 LOA, as an
accommodation. Oquendo was granted time-off as a Pregnancy Disability Leave,
beginning on June 11, 2016. While the June 2016 LOA was scheduled to conclude on
4

Oquendo did not point to any evidence to challenge this assertion.

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September 18, 2016, Oquendo voluntarily requested to extend the leave and Costco
granted such request. This was a paid leave. Oquendo nevertheless claims that the June
2016 LOA constitutes an adverse employment action. Her argument is unavailing.
In the Court’s view, granting Oquendo the June 2016 LOA as a temporary
accommodation given the undisputed record of this case far from constitutes an adverse
employment action. Here, Oquendo was not terminated by Costco. In fact, she continues
to be employed by Costco today. She was not demoted nor reassigned to a lesser position,
nor have her responsibilities suffered any adverse change. Furthermore, neither
Oquendo’s salary nor benefits have been adversely affected. In effect, the June 2016
LOA was a fully paid leave and once she returned to work upon the expiration of the
leave she received an increase in her salary. For an employment action to be materially
“adverse” it must be “more disruptive than a mere inconvenience” and, on this record,
no reasonable factfinder could find that the June 2016 LOA involved a discrete or
materially “adverse” change in the terms and conditions of Oquendo’s employment. See
Morales-Vallellanas, 605 F.3d 27. Accordingly, the June 2016 LOA is not an actionable
adverse employment action under Title VII and, therefore, Oquendo failed to meet the
third prong of the prima facie case. 5
5 Plaintiff’s other two alleged—and lesser—“adverse” employment actions fare no better. First, Oquendo
claims that she was “forced” to take vacation time for a week after she asked to return from a medical
leave in April 2016. Costco presented a legitimate and uncontested reason for this action, which seems to
be part of Costco’s business practice for all employees. Plaintiff admitted that Costco prepares the
schedule two to three weeks in advance. Plaintiff also admitted that Costco has a practice of asking its
employees to take vacation time while it adjusts payroll if the employee is released from leave before the
next schedule is prepared. That was the case here. When Oquendo announced to Costco that she was
released to return to work following her April leave, Costco had already prepared the work schedule and
needed to adjust payroll in order for her to start. As it typically does with other employees, Costco asked
Oquendo if she was willing to take a one-week vacation leave to adjust payroll. Oquendo does not dispute
that. Such action, under different circumstances, perhaps could adversely affect the terms and conditions
of employment, however, that was not the case here. The record here shows that Oquendo was not
adversely affected by this action in her employment. In pertinent part, neither her salary nor benefits
were adversely affected by this action because the vacation time she used was paid to her in full and the
time was later restored to her, thereby maintaining her prior leave balance unaffected.
Second, Oquendo claims that she was subjected to an adverse employment action in April 2016
because when she returned from leave Bergeron scheduled her rotating shifts, mostly night shifts,
including 1:00AM shifts. On this record, however, it is uncontested that prior to Oquendo’s pregnancy,
her shifts varied throughout the year and she was assigned to different schedules, which frequently
included night shifts, like the one she complained of here. In addition, Costco set forth an uncontested
legitimate business reason for appointing her a night shift in April 2016, to wit, that other managers were
on vacation at that time, the Warehouse was undergoing overnight renovations, and Human Resources
trainings were being conducted, beginning at 5:00AM. Under this scenario, scheduling Oquendo for a

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Based on the foregoing, Oquendo’s Title VII discrimination claim cannot prevail
because she failed to meet the second and third elements of her prima facie case. And,
though the Court need not run through the rest of the burden-shifting framework, on
its face, and absent any evidence to the contrary, Costco’s business decisions relating to
Oquendo’s employment cannot be found to have been discriminatory. Moreover, any
business decision made by Costco regarding Oquendo’s employment, and the June 2016
LOA, has been legitimately explained by Costco, and no proof has been provided by
Oquendo that Costco took an action against her that goes against Title VII. Finally,
though the Court certainly does not have to reach the pretext stage, there is not an
inkling of evidence on this record to show that Costco’s actions against Oquendo involve
discriminatory work practices or that the reasons behind them were mere pretext to
discriminate against her because of her pregnancy—or any other protected category.
In sum, Oquendo fails to meet her prima facie burden with respect to her
pregnancy discrimination claim under Title VII. Costco is therefore entitled to summary
judgment on such claim. Accordingly, Oquendo’s Title VII discrimination claim is
DISMISSED with prejudice.
a.

Puerto Rico Law 3: pregnancy discrimination claim

Oquendo also brings a claim for pregnancy discrimination under Puerto Rico
Law 3. Costco moves to dismiss this claim because Oquendo cannot show that Costco
dismissed her, suspended her, reduced her salary, or discriminated against her in any
manner because of her pregnancy. Oquendo did not offer a response to Costco’s dismissal
request. The Court agrees with Costco that dismissal is warranted.
Law 3 protects employees from pregnancy-related employment discrimination.
See P.R. Ann. tit. 29 § 469. The statute makes employers liable if they “dismiss[ ],
suspend[ ], reduce[ ] the salary or discriminate[ ] in any manner against a pregnant
woman worker . . . .” Id. The statute specifically provides that employers “cannot,
rotating shift, which included night shifts, both of which had been previously held by Oquendo, cannot be
found to have adversely affected her employment—she was not demoted nor were her responsibilities or
terms of employment altered in an adverse way.
Based on the record of this case, neither of these two actions involved a discrete or materially
“adverse” change in the terms and conditions of Oquendo’s employment. As such, they do not rise to the
level of actionable adverse employment actions under Title VII.

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without just cause, discharge a pregnant woman.” Id. Once a woman files suit indicating
that she was subject to any of the discriminatory acts prohibited by Law 3, a rebuttable
presumption arises and the burden shifts to the employer to prove that its actions were
justified. Colon-Muriel v. Asoc. de Suscripcion Conjunta del Seguro de Responsabilidad
Obligatorio, 499 F. Supp. 2d 98, 112 (D.P.R. 2007); Rivera Aguila v. K–Mart de P.R., 123
D.P.R. 599, 610 (1989). “Courts analyze discrimination claims under Law [ ] 3 . . . like a
Title VII discrimination cause of action.” Pagán–Alejandro v. P.R. ACDelco Serv. Ctr.,
Inc., 468 F. Supp. 2d 316, 328 (D.P.R. 2006) (internal citation omitted).
Because courts analyze discrimination claims under Law 3 like a Title VII
discrimination claim, the Court borrows from its Title VII analysis to quickly dispose of
Oquendo’s analogous Law 3 claim. As discussed above, the alleged discriminatory
conduct that Oquendo complains about did not adversely affect her employment. On this
record, Oquendo failed to show that Costco dismissed her, suspended her, reduced her
salary or benefits or discriminated against her because of her pregnancy. As discussed
above: Oquendo was never terminated—indeed she presently works at Costco; Costco
never suspended her or changed her responsibilities—she returned to her prior position
with the same duties; Costco never reduced her salary or benefits—indeed she received
a salary increase upon her return to work. Furthermore, there is no evidence on this
record to show that Costco discriminated against Oquendo in any manner because she
was pregnant.
Plainly, there is no evidence on this record of the type of adverse employment
action needed for Oquendo to have a cognizable claim under Law 3. Oquendo’s Law 3
claim therefore cannot survive. And, as further discussed above, Costco adequately
explained its business reasons with respect to the actions that Oquendo complains of.
Moreover, Oquendo did not show discriminatory intent based on her pregnancy. Based
on the foregoing, Costco is entitled to summary judgment on Oquendo’s Puerto Rico
Law 3 claim and, therefore, such claim is DISMISSED with prejudice.

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b.

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Disparate treatment claim

In addition to the above claims, Oquendo also asserted a disparate treatment
claim under Title VII based on pregnancy discrimination. Oquendo grounds her
disparate treatment claim on her allegation that similarly situated pregnant and nonpregnant employees were treated more favorably by Costco than her. More specifically,
she avers that Costco granted other—unknown—managers special schedules as
reasonable accommodations, instead of offering them LOAs—which is what they offered
to her. Oquendo’s disparate treatment claim is unavailing for various reasons.
In the present case, as in all cases in which an individual plaintiff seeks to show
disparate treatment through indirect evidence, the plaintiff has “the initial burden” of
“establishing a prima facie case” of discrimination. See McDonnell Douglas, 411 U.S. at
802; Young, 575 U.S. at 210–11. If she carries her burden, the employer must have an
opportunity “to articulate some legitimate, non-discriminatory reason[s] for” the alleged
difference in treatment. Ibid. If the employer articulates such reasons, the plaintiff then
has “an opportunity to prove by a preponderance of the evidence that the reasons . . .
were a pretext for discrimination.” Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981).
By now, the Court has sufficiently explained that Oquendo failed to meet her
initial burden of establishing a prima facie case of pregnancy discrimination, therefore,
she cannot establish a claim for disparate treatment under Title VII. Though Oquendo
did not meet her initial burden, her claim moreover fails for the following reasons.
Oquendo attempts to show that Costco discriminated against her by placing her
on the June 2016 LOA because “other employees” (presumably those similarly situated
to her) were provided modified work schedules—an opportunity withheld from her. A
“claim of disparate treatment based on comparative evidence must rest on proof that
the proposed analogue is similarly situated in material respects.” See Perkins v. Brigham
& Women’s Hosp., 78 F.3d 747, 751 (1st Cir. 1996). (Emphasis added). In the present
case, Oquendo failed to provide specific evidence who these mystery employees were,
what their alleged accommodation was, under what circumstances where they allegedly
granted accommodations, and how such employees were similarly situated to her.

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Furthermore, Oquendo conceded that she does not know if those alleged Costco
employees—who are unnamed, but who she claims were provided schedule changes—
had the same medical restrictions that she had. In fact, Oquendo accepted that she does
not know “anyone” who had the same medical restrictions that she had. That is all fatal
to her disparate treatment claim.
On this evidentiary record, there is not an inkling of evidence of any employee
analogous to Oquendo, nor is there evidence as to how the purportedly analogous
employee was similarly situated to Oquendo in material respects. That being the case,
the Court cannot find that Oquendo was a victim of disparate treatment. Plaintiff’s
disparate treatment claim falls well short of staving off summary judgment and shall
therefore be DISMISSED with prejudice.
B.

The ADA claim

Oquendo also brings a claim of disability discrimination under the ADA claiming
that she was temporarily disabled because of her pregnancy and thatCostco
discriminated against her by failing to reasonably accommodate her disability. The ADA
forbids a covered employer (like Costco) from discriminating against a “qualified
individual,” see 42 U.S.C. § 12112(a), pertinently defined as a person “who, with or
without reasonable accommodation, can perform the essential functions” of her job, see
id. § 12111(8). Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016).
Failing to reasonably accommodate a disabled person is a form of disability
discrimination. Id. See e.g., Faiola v. APCO Graphics, Inc., 629 F.3d 43, 47 (1st Cir.
2010).
To survive summary judgment on a failure to accommodate claim, a plaintiff must
point to sufficient evidence showing that: (1) she is disabled within the ADA’s definition;
(2) she could perform the job’s essential functions either with or without a reasonable
accommodation; and (3) the employer knew of her disability yet failed to reasonably
accommodate it. Lang, 813 F.3d at 454. See e.g., Rocafort v. IBM Corp., 334 F.3d 115,
119 (1st Cir. 2003). Costco maintains that Oquendo cannot make out a prima facie case
of disability discrimination under the ADA and therefore such claim should be

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summarily dismissed. 6 On her part, Oquendo did not offer any discussion to show that
she met her prima facie burden. She nevertheless broadly claimed that she had a
temporary pregnancy-related disability and that Costco placed her in an “involuntary”
LOA rather than providing her with a reasonable accommodation.
Turning to the first prima facie element, the Court will assume, without deciding,
that Oquendo had a disability within the meaning of the ADA. For purposes of this
discussion, therefore, Oquendo met the first prong.
As for the second element—the essential functions’ issue—Oquendo had to show
that she could perform the essential duties of her position, either with or without a
reasonable accommodation. Costco argues that Oquendo’s medical restrictions limited
her in such a way that she could not perform some of the essential duties of her position,
with or without an accommodation. In response, Oquendo argues that because her
physician “released” her to go back to work in June 2016, she “could” work. But Oquendo
appears to omit a key fact: while her doctor indeed gave her approval to work, he
imposed several restrictions on her physical capabilities. And, as discussed in this
Opinion, on this evidentiary record and at this stage, bending, squatting, kneeling,
reaching above the shoulders and below the shoulders, and lifting and carrying up to
fifty (50) pounds are all essential duties of Oquendo’s position but, because of her medical
restrictions, she could not perform them. 7
Oquendo nevertheless claims that she would have been able to do her job, had
Costco granted her a reasonable accommodation. She bears the burden of showing that
she could perform the essential functions of her position, if only Costco had given her
some reasonable accommodation for her pregnancy-related restrictions. See Lang, 813
F.3d at 454; See Jones v. Walgreen Co., 679 F.3d 9, 17 (1st Cir. 2012). Oquendo, in turn,
claims that Costco could have reasonably accommodated her by either: (1) redistributing
non-essential duties or altering how the physical essential duties were performed;
Costco grounds its prima facie discussion on the four elements set forth in Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999). The Court however relies on the prima face prong
announced more recently in Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016).
7 The Court notes that the First Circuit has stressed that the ADA does not require employers to retain
disabled employees who cannot perform the essential functions of their jobs without reasonable
accommodation. Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 649 (1st Cir. 2000).
6

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(2) providing her a modified work schedule; or (3) temporarily reassigning her to a
“light” duty position. Costco challenges all three of the proposed accommodations as
unfeasible in this case and argues that an employer is neither required to provide an
employee with an accommodation of her choice nor to create a new position for that
employee. See Enica v. Principi, 544 F.3d 328, 342 (1st Cir. 2008). The Court agrees. As
will be discussed, neither of the three accommodations proposed by Oquendo constitute
“reasonable accommodations” within the meaning of the ADA.
At the outset, an employer is not obligated to provide an employee the
accommodation she requests or prefers, the employer need only provide some reasonable
accommodation. Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996); Schmidt
v. Methodist Hospital, 89 F.3d 342, 344-45 (7th Cir. 1996). To prove “reasonable
accommodation,” a plaintiff needs to show not only that the proposed accommodation
would enable her to perform the essential functions of her job, but also that, at least on
the face of things, it is feasible for the employer under the circumstances. Reed v. LePage
Bakeries, Inc., 244 F.3d 254, 260 (1st Cir. 2001). This is where Oquendo’s argument falls
short.
Turning to Oquendo’s first proposition, she claims that Costco could have
reassigned the Receiving Manager’s physical duties—which she could not perform—to
other employees, thereby enabling her to work but solely performing the administrative
(non-physical) tasks of the position. Oquendo’s first proposed accommodation—excusing
her from the physical demands of her essential duties—is a non-starter for a simple
reason. See Lang, 813 F.3d at 455-56. Just like the plaintiff in the Lang case, what
Oquendo really wanted was for Costco to excuse her from having to perform essential
functions of her position and basically create a new position for her where all her
“physical” essential duties were eliminated. “But under the ADA, an employer is not
required to accommodate an employee by exempting her from having to discharge an
essential job function.” Id. See e.g. Richardson v. Friendly Ice Cream Corp., 594 F.3d 69,
81 (1st Cir. 2010); see also Mulloy v. Acushnet Co., 460 F.3d 141, 153 (1st Cir. 2006)
(explaining that a proposed accommodation that “redefin[ed]” an employee’s job
description is “per se unreasonable”).

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Many times has the First Circuit rejected propositions like the one Oquendo
makes in this case: that employers must accommodate employees by exempting them
from performing essential duties of their position. This Court will not suggest that
Costco was required to accommodate Oquendo in the manner that she proposes because
the requested accommodation would have altered her essential job functions, which
courts have found to be “per se unreasonable.” Id. Furthermore, on its face, Oquendo’s
first proposed accommodation would not have enabled her to perform the essential
duties of her position—some of which undisputedly she could not perform—nor was it
feasible. Based on the foregoing, the Court cannot find that the first proposed
accommodation constituted a “reasonable accommodation.” Reed, 244 F.3d at 260. 8
As for Oquendo’s second suggested accommodation—that Costco should have
authorized a modified work schedule for her—Oquendo claims that Costco could have
granted her a modified work schedule during her pregnancy, and more specifically,
appointed her to an 8:00AM to 5:00PM shift. Oquendo bases her argument on Bergeron’s
statement during his deposition that Costco has offered modified work schedules as
reasonable accommodations to certain employees in particular situations. Oquendo also
points to Bergeron’s declaration that he could authorize a modified work schedule for
an employee on a temporary basis under specific circumstances. Under the
circumstances of this case, however, assigning Oquendo a modified work schedule of
8:00AM to 5:00PM—which is what she wanted—is also a non-starter because it would
not have resolved the medical restrictions imposed by her doctor.
There is simply no evidence in the record that Oquendo could perform the
essential duties of her position had she been granted a modified work schedule. In
Oquendo’s case, a modified work schedule could not have been provided by Costco
because her medical restrictions, which severely limited her physical abilities, barred
her from being able to perform the essential duties of her position—irrespective of the
work schedule imposed. Her medical restrictions were a significant factor that played
into any schedule offered to her. It was therefore not feasible for Costco to assign a
While it is true that in some cases, as Costco itself recognizes, an employer could modify an employee’s
non-essential tasks to accommodate an employee, in this case, Oquendo was unable to perform some of
her essential duties, which the employer is not required to discharge.
8

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modified work schedule as a reasonable accommodation to Oquendo because she could
not perform the essential duties of her position on any schedule, whether it was the
8:00AM to 5:00PM shift she coveted or any other. Accordingly, the Court cannot find
that the second proposed accommodation constituted a “reasonable accommodation.”
Reed, 244 F.3d at 260.
Turning to Oquendo’s last proposed accommodation, she claims that Costco could
have provided her a temporary reassignment to another position as a reasonable
accommodation. A “[r]easonable accommodation may include reassignment to a vacant
position” but the employee “bears the burden of proof in showing that such a vacant
position exists.” Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st Cir. 2001) (internal
quotations and citations omitted)). (Emphasis added). See Lang, 813 F.3d at 456. An
employer may be obligated to reassign a disabled employee, but only to vacant positions;
an employer is not required to “bump” other employees to create a vacancy to be able to
reassign the disabled employee. Id. Nor is an employer obligated to create a “new”
position for the disabled employee. Furthermore, the ADA may only require
an employer to reassign a disabled employee to a position for which the employee is
otherwise qualified. White v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir. 1995).
In this case, the Court can easily dispose of Oquendo’s third proposed
accommodation because she failed to meet her evidentiary burden. She neither argued
nor presented any evidence of the existence of a vacant position to which Costco could
have reassigned her during the relevant period. Plainly, there is not an iota of evidence
on this record showing that a vacant position existed at the warehouse for which
Oquendo was qualified. Given this total lack of evidence, Oquendo’s final proposed
accommodation is not a “reasonable accommodation.” Reed, 244 F.3d at 260.
In summary, neither of the three accommodations that Oquendo proposed where
“reasonable” or feasible, as required by the ADA. Despite Oquendo’s burden to come
forward with evidence to show that she could perform the essential duties of her position
had she been granted a reasonable accommodation, she failed to meet such threshold. 9

This case, like many cases on essential functions and reasonable accommodation before the First Circuit,
“turn[s] on the surprising failure of one party or the other to proffer any significant evidence in favor of

9

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See Ward v. Massachusetts Health Research Inst., Inc., 209 F.3d 29, 35 (2000). The Court
can therefore easily conclude that Oquendo’s ADA claim fails because she did not meet
the second element of her prima facie case. See e.g. Lang 813 F.3d at 458 (concluding
that plaintiff’s disability discrimination claim failed because the summary judgment
record did not show that she could perform the essential function of her job—manually
lifting up to 60 pounds—with or without a reasonable accommodation. Plaintiff’s
discrimination claim was dismissed at the prima facie stage.)
Based on the preceding discussion, Oquendo’s disability discrimination claim and
failure to accommodate claim under the ADA cannot survive summary judgment and
shall be DISMISSED with prejudice.
a.

Puerto Rico Law 44: disability discrimination claim

In her complaint, Oquendo also asserts a disability discrimination claim under
Puerto Rico Law 44. Costco argues that Oquendo’s claim under Law 44 should be
dismissed on the same grounds as her ADA claim. Oquendo did not offer any response
to this argument.
Puerto Rico Law 44 was initially enacted to prohibit discrimination against
disabled individuals by any public or private institution that received funds from the
Commonwealth of Puerto Rico. P.R. Laws Ann., tit. 1, § 504. Following the promulgation
of the ADA, Puerto Rico’s Legislature approved Law 105 of December 20, 1991 with the
express purpose of extending Law 44’s protection to persons employed by private
institutions in Puerto Rico and to conform Law 44 to the ADA. Arce v. ARAMARK Corp.,
239 F. Supp. 2d 153, 168–69 (D.P.R. 2003). Law 44 was modeled after the ADA. Id.
It was intended to harmonize Puerto Rico law with the federal statutory provisions of
the ADA. The elements of proof for a claim under Law 44 are essentially the same as for
a claim under the ADA. Zayas v. Commonwealth of P.R., 378 F. Supp. 2d 13, 23–24
(D.P.R. 2005); Roman–Martinez v. Delta Maint. Serv., Inc., 229 F. Supp. 2d 79, 85
(D.P.R. 2002).

their position.” Reed v. LePage Bakeries, 244 F.3d 254, 260 (1st Cir. 2001). Tobin v. Liberty Mut. Ins. Co.,
433 F.3d 100, 107 (1st Cir. 2005).

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Having found that Oquendo failed to establish a valid claim under the ADA
because she failed to meet the requisite elements of a prima facie claim, and having
dismissed such claim as a result, Oquendo’s claim under Law 44—which has essentially
the same elements of proof as an ADA claim—should suffer the same fate. See Gonzalez
v. El Dia, Inc., 304 F.3d 63, 74 n. 8 (1st Cir. 2002) (affirming dismissal of coterminous
claim under Law 44 upon dismissal of ADA claim); Acevedo Lopez v. Police Dep’t of
P.R., 247 F.3d 26, 29 (1st Cir. 2001) (“the Commonwealth prohibits employment
discrimination on the basis of disability in a similar fashion as the ADA”); Zayas,
378 F. Supp. 2d at 24 (having found that plaintiff’s ADA claim should be dismissed, the
Law 44 claim should be dismissed as well); Arce, 239 F. Supp. 2d at 169 (finding that
plaintiff’s Law 44 should likewise be dismissed inasmuch as his ADA claim was
dismissed).
Accordingly, as the Court dismissed Oquendo’s ADA claim, her coterminous
Puerto Rico Law 44 claim shall be DISMISSED with prejudice as well.
C.

The ADEA claim

Under the ADEA, an employer may not “discharge . . . or otherwise discriminate
against any individual with respect to her compensation, terms, conditions, or privileges
of employment, because of her age.” 29 U.S.C. § 623(a)(1). A plaintiff asserting a claim
under the ADEA has the burden of establishing “that age was the ‘but-for’ cause of the
employer’s adverse action.” See Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128,
138 (1st Cir. 2012) (quoting Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177
(2009)). Differently stated, the plaintiff’s age must have been the determinative factor
as opposed to merely a determinative factor in the employer’s decision. Gross, 557 U.S.
at 168. Where, as here, there is no direct evidence of discrimination, courts evaluate
ADEA claims under the burden-shifting framework drawn from McDonnell Douglas,
supra. Under this framework, plaintiff must make out a prima facie case of
discrimination, which requires the plaintiff to show that: 1) she was at least 40 years
old at the time of the challenged action; 2) she was qualified for the position she had
held; 3) the employer took adverse employment action against her, and 4) the employer
subsequently filled the position, demonstrating a continuing need for the plaintiff’s

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services. Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 447 (1st Cir. 2009);
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
As for Oquendo’s alleged ADEA claim, the Court need not say more because the
claim can easily be disposed of on administrative exhaustion grounds. Before bringing
an age discrimination claim to federal court under ADEA, Oquendo had to exhaust her
administrative remedies. Martinez-Rivera v. Commonwealth of Puerto Rico, 812 F.3d
69, 78 (1st Cir. 2016). See Jorge v. Rumsfeld, 404 F.3d 556, 561 (1st Cir. 2005)
(citing 29 U.S.C. § 626(d)); see also generally Kale v. Combined Ins. Co., 861 F.2d 746,
751–52 (1st Cir. 1988) (noting that the administrative charge-filing requirement is
mandatory, though not jurisdictional). Oquendo filed an administrative charge with the
EEOC but did not mention age discrimination in her charge; she alleged only pregnancy
and disability discrimination and retaliation. Oquendo rightly concedes as much.
Given Oquendo’s fatal failure to exhaust administrative remedies on her age
discrimination action, her ADEA claim does not belong in federal court—which compels
the Court to dismiss such claim. See Martinez-Rivera, 812 F.3d at 78. Reaching the
merits of Oquendo’s ADEA claim also leads to the same conclusion. In terms of legal
substance, Oquendo fares no better because she cannot meet her prima facie burden. As
extensively discussed throughout this Opinion, Oquendo has not produced sufficient
evidence to allow a reasonable fact-finder to conclude that she was qualified for the
position that she held—the second prong of the prima facie case—or that Costco took an
adverse employment action against her—the third prong of the test.
Accordingly, Costco is entitled to summary judgment on Oquendo’s ADEA claim,
which will be DISMISSED with prejudice.
a. Puerto Rico Law 100: age and sex discrimination claim
In her complaint, Oquendo also asserts an age and sex discrimination claim under
Puerto Rico Law 100. Costco argues that Oquendo’s claims under Law 100 are timebarred by the one-year statute of limitations and should therefore be dismissed.
Oquendo failed to address this argument in her opposition.
Law 100 is Puerto Rico’s general employment discrimination statute. P.R. Laws
Ann. tit. 29, § 146. In pertinent part, the statute bans employment discrimination on

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the basis of age and sex. See P.R. Laws Ann. tit. 29, § 146. The Supreme Court of Puerto
Rico has held that the one-year statute of limitations found in Article 1868 of the Puerto
Rico Civil Code applies to Law 100 claims. Vargas v. Fuller Brush Co. of Puerto Rico,
336 F. Supp. 2d 134, 143 (D.P.R. 2004), report and recommendation adopted (Sept. 8,
2004) referencing Olmo v. Young & Rubicam of P.R., Inc., 110 P.R. Dec. 740
(P.R. 1981); Matos Ortiz v. Commonwealth of Puerto Rico, 103 F. Supp. 2d 59, 63–64
(D.P.R. 2000). A cause of action under Law 100 accrues on the date that the employee
becomes aware of the adverse personnel action either through notification by the
employer, see American Airlines v. Cardoza–Rodriguez, 133 F.3d 111, 124–125 (1st Cir.
1998), or the effectuation of the decision. See Landrau–Romero v. BPPR, 212 F.3d 607,
615 (1st Cir. 2000) (“Law 100 . . . has a statute of limitations of one year”) (citing Iglesias
v. Mut. Life Ins. Co. of N.Y., 156 F.3d 237, 240 (1st Cir. 1998)).
Additionally, the filing of a discrimination charge with the EEOC or locally with
the Anti-Discrimination Unit of the Puerto Rico Department of Labor constitutes an
extrajudicial claim, which could toll the statute of limitations. See León–Nogueras v.
U.P.R., 964 F. Supp. 585, 587–88 (D.P.R. 1997). Once the plaintiff has filed such a claim
and has notified the employer-defendant of its filing, the one-year statute of limitations
under Law 100 is tolled throughout the duration of the administrative proceedings and
until the employer-defendant is notified of the agency’s decision. See Vargas, 336
F. Supp. 2d at 143; Padilla Cintrón v. Rosselló, 247 F. Supp. 2d 48, 55–56 (D.P.R. 2003).
In this case, the chief adverse employment action alleged by Oquendo is that she
was placed on a LOA, beginning on June 11, 2016. She also claimed that she suffered
two adverse employment actions in April 2016. Viewing the claims in the light most
favorable to plaintiff, the Court takes the latter date—June 2016—to determine when
her Law 100 claim accrued. Because a Law 100 claim accrues on the date that the
employee becomes aware of the adverse personnel action or the effectuation of the
decision, using the latter date, Oquendo’s claim accrued on June 11, 2016—the date in
which her LOA began. It is undisputed that Oquendo neither filed a charge of
discrimination with the EEOC nor a charge with its Puerto Rico counterpart; therefore,
the one-year statute of limitations was not tolled in this case. Oquendo had until June

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2017 to file a claim under Puerto Rico’s Law 100. She nevertheless filed it on October 8,
2017, several months after the statutory period had expired. As such, Oquendo’s claim
under Law 100 is time barred and its dismissal is warranted.
Notwithstanding the above, Costco offered an alternative argument in favor of
dismissing Oquendo’s Law 100 claim—that she failed to meet her prima facie burden.
In cases like this one, where there is no direct evidence of discrimination, a plaintiff may
rely on circumstantial evidence to prove a Law 100 claim through the “just cause”
framework set in Article 3 of the statute. Hoffman-Garcia v. Metrohealth, Inc., No. CV
14-1162 (PAD), 2018 WL 671200, at *5 (D.P.R. Jan. 31, 2018), aff’d, 918 F.3d 227
(1st Cir. 2019). The framework consists of three stages: (1) a prima facie case; (2) burden
shifting;

and

(3)

ultimate

demonstration

of

discrimination. See, Caraballo-

Cecilio v. Marina PDR Tallyman LLC, 2016 WL 6068117, *2 (D.P.R. Oct. 13, 2016)
(describing framework). A plaintiff establishes a prima facie case by demonstrating
that: (1) she suffered an adverse employment action; (2) the adverse action lacked just
cause; and (3) there exists some basic fact substantiating the type of discrimination
alleged. See Rodríguez v. Executive Airlines, Inc., et al., 180 Fed. Supp. 3d 129, 132-133
(D.P.R. 2016) (setting forth elements of prima facie case under Law 100). In Puerto
Rico, the term “just cause” is construed by reference to Puerto Rico Law 80. Id.
Reaching the merits of Oquendo’s Law 100 sex and age discrimination claim,
Oquendo fares no better because she cannot meet her prima facie burden. As broadly
explained by the Court in this Opinion, Oquendo cannot meet the first prong of the Law
100 prima facie test because she has not produced sufficient evidence to show that
Costco took an adverse employment action against her.
For the foregoing reasons, Costco’s request for summary judgment on this action
should be GRANTED and the claim is DISMISSED with prejudice.

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Retaliation claim under Title VII

Oquendo further asserts a claim of retaliation under Title VII. Title VII makes it
unlawful for an employer to retaliate against an employee because the employee has
taken an action to enforce her rights under Title VII. 42 U.S.C. § 2000e. Pursuant to
Title VII:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . .
for an employment agency . . . because he has opposed any
practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e–3(a). When, like here, there is no direct evidence of retaliation, the
McDonnell Douglas burden-shifting framework is triggered. To make a prima
facie showing of retaliation, the plaintiff must show that: (1) she engaged in protected
conduct under Title VII, (2) she suffered an adverse employment action, and
(3) the adverse action was casually connected to the protected activity. Ponte v. Steelcase
Inc., 741 F.3d 310, 321 (1st Cir. 2014); Collazo v. Bristol–Myers Squibb Mfg.,
Inc., 617 F.3d 39, 46 (1st Cir. 2010).
“An employee has engaged in activity protected by Title VII if she has either (1)
‘opposed any practice made an unlawful employment practice’ by Title VII or (2) ‘made
a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing’ under Title VII.” Fantini v. Salem State Coll., 557 F.3d 22, 32
(1st Cir. 2009) (citing Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996)
(quoting 42 U.S.C. § 2000e–3(a))). “The term ‘protected activity’ refers to action taken to
protest or oppose statutorily prohibited discrimination.” Fantini, 557 F.3d at 32 citing
Cruz v. Coach Stores Inc., 202 F.3d 560, 566 (2nd Cir. 2000) (citing 42 U.S.C. § 2000e–3
and Wimmer, 176 F.3d at 134–135); see also Sumner v. U.S. Postal Service, 899 F.2d
203, 209 (2d Cir. 1990).
The First Circuit has further explained that “[i]n addition to protecting the filing
of formal charges of discrimination, § 704(a)’s opposition clause protects as well informal
protests of discriminatory employment practices including making complaints to

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management, writing critical letters to customers, protesting against discrimination by
industry or by society in general, and expressing support of co-workers who have filed
formal charges.” Fantini, 557 F.3d at 32. And, this Court has of course adopted such
rationale and stated in Fontanillas–Lopez v. Morel Bauza Cartagena & Dapena
LLC, 995 F. Supp. 21, 51 (D.P.R. 2014) that:
[P]rotected conduct under Title VII’s anti-retaliation provision is
not limited to filing an administrative charge of discrimination. It
expressly prohibits retaliation for ‘oppos[ing] any practice made
an unlawful practice by Title VII.’ Petrarca v. Southern Union
Co., No. 04–310S, 2007 WL 547690 at *12 (D.R.I. 2007) (citing 42
U.S.C. § 2000e–3(a)). See also Pérez–Cordero v. Wal–Mart Puerto
Rico, Inc., 656 F.3d 19, 31 (1st Cir. 2011). [. . .] ‘The law protects
employees in the filing of formal charges of discrimination as well
as in the making of informal protests of discrimination, ‘including
making complaints to management, writing critical letters to
customers, protesting against discrimination by industry or
society in general, and expressing support of co-workers who have
filed formal charges.’ [Matima v. Celli, 228 F.3d 68, 78–79 (2d Cir.
2000)].
Santos-Santos v. Puerto Rico Police Dep’t, 63 F. Supp. 3d 181, 189 (D.P.R. 2014), aff’d
sub nom, Santos-Santos v. Torres-Centeno, 842 F.3d 163 (1st Cir. 2016).
Here, Costco argues that Oquendo cannot establish any of the requirements of a
prima facie Title VII retaliation claim. While that may be true, the Court can quickly
dispose of Oquendo’s retaliation claim because she did not meet the first or second prima
facie elements. As for the second element, it has been established throughout this
Opinion that Oquendo failed to show that she suffered an adverse employment action.
As to the first element—Oquendo also failed to show that she engaged in
protected activity within the meaning of Title VII.
On this record, taking all inferences in favor of the plaintiff, the only action that
can possibly be construed as an allegation of protected activity was the fact that in May
2016 Oquendo met with her supervisor Bergeron and she complained that the hours he
was scheduling for her were too difficult to manage due to her pregnancy. She also
requested to work day shifts through the remainder of her pregnancy. To give context
to Oquendo’s “complaint,” when she returned from medical leave in April 2016,

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Bergeron assigned her a rotating shift, which mostly included night shifts, including a
1:00AM shift.
Viewing the record in the light most favorable to plaintiff, even if such action
could be construed as an informal complaint to Costco management, it was certainly not
a complaint of discrimination. Oquendo’s complaint to her supervisor about her work
schedule “neither pointed out discrimination against particular individuals [or herself]
nor discriminatory practices by” Costco. See Fantini, 557 F.3d at 32 (citing Manoharan,
M.D., v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 594
(2d Cir. 1988)). And, there is no evidence on the record that Costco’s decision to schedule
Oquendo a rotating shift in April 2016, which included night shifts, involved a
discriminatory work practice. 10 Plainly, there is not an inkling of evidence in this case
to show that Oquendo opposed an employment practice made unlawful by Title VII—
even informally. In addition, there is no allegation nor evidence on this record that
Oquendo made a charge of discrimination, testified, assisted, or participated in any
manner in an investigation, proceeding or hearing under Title VII.
Under these facts and on this record, therefore, no reasonable fact finder could
conclude that Oquendo engaged in protected activity under Title VII. Plaintiff therefore
cannot meet the first prima facie element of a Title VII retaliation claim and thus her
claim cannot survive dismissal. See Fantini, 557 F.3d at 32 (affirming the district court’s
dismissal of Appellant’s Title VII retaliation claim because the alleged “misconduct”
that she “complained about” was not an unlawful employment practice under Title VII);
see also Wimmer v. Suffolk Cty. Police Dep’t, 176 F.3d 125, 134-35 (2d Cir. 1999) (“In the
absence of such evidence, [Appellant’s] claim of retaliation is not cognizable under Title
VII because [her] opposition was not directed at an unlawful employment practice of
[her] employer”).

It is worth noting that Oquendo did not dispute Costco’s business reason for assigning her the
complained-of rotating shift: that other managers were on vacation, the warehouse was undergoing
overnight renovations, and Human Resources trainings were being conducted, beginning at 5:00AM.
(SUMF 47). It is also noteworthy that in the year prior to the present complaint, Oquendo’s shifts varied
throughout the year and she was required to work different schedules, which frequently included night
shifts. (SUMF 46).
10

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Accordingly, summary judgment should be granted in favor of Costco on this basis
and Oquendo’s Title VII retaliation claim shall be DISMISSED with prejudice.
a.

Puerto Rico Law 115: retaliation claim

In her complaint, Oquendo also asserts a retaliation claim under Puerto Rico Law
115. Costco argues that Oquendo’s Law 115 claim should be dismissed because she failed
to make out her prima facie showing. Oquendo failed to respond to this argument in her
opposition to summary judgment.
In general, Puerto Rico Law 115 makes it unlawful for the employer to discharge,
threaten, or discriminate against an employee regarding terms, conditions,
compensation, location, benefits or privileges of employment should the employee offer
or attempt to offer any testimony, expression or information before a legislative,
administrative or judicial forum in Puerto Rico. See P.R. Laws Ann. tit. 29 § 194(a). The
statute imposes an obligation on the employees to establish, through direct or
circumstantial evidence, a prima facie case proving that: “they engaged in activity
protected under Law 115 and then suffered discrimination at work.” Uphoff Figueroa v.
Alejandro, 597 F.3d 423, 433 (1st Cir. 2010). Law 115 is largely identical in scope
to Title VII retaliation claims. Velez v. Janssen Ortho, LLC, 467 F.3d 802, 809 (1st Cir.
2006).
Because the burden of proof for Oquendo’s Law 115 retaliation claim mirrors that
of a Title VII retaliation claim, the former must suffer the same fate as the latter.
Identical to her Title VII retaliation claim, Oquendo did not present any evidence, as
was her burden, to show that she participated in an activity protected by §194(a).
Because the Court found that under these facts and on this record, no reasonable fact
finder could reach the conclusion that Oquendo engaged in protected activity under Title
VII, her Law 115 claim must similarly be dismissed. See id. (upholding district court’s
dismissal of Law 115 claim where jury rejected plaintiff’s claim of retaliation under
federal law); Moreta v. First Transit of PR, Inc., 39 F. Supp. 3d 169, 182 (D.P.R. 2014)
(dismissing plaintiff’s Law 115 claim because his Title VII retaliation claim was
dismissed because he failed to raise a genuine issue of material fact).

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Accordingly, summary judgment is granted in favor of Costco on this claim and
Oquendo’s Puerto Rico Law 115 retaliation claim is DISMISSED with prejudice.
E.

Remaining Supplemental Law Claim

To conclude, Plaintiff also alleges entitlement to recovery of damages under
Articles 1802 and 1803 of Puerto Rico’s Civil Code. Article 1802 is Puerto Rico’s general
tort statute. The statute provides that a person who “causes damages to another through
fault or negligence” shall be liable in damages. P.R. Laws Ann. tit. 31, § 5141. Article
1803 applies the principle of respondeat superior to Article 1802 claims. P.R. Laws Ann.
tit. 31 § 5142; Pagán Cólon v. Walgreens of San Patricio, Inc., 697 F.3d 1, 16 (1st Cir.
2012).
The Puerto Rico Supreme Court, and courts in this District, have held that to the
extent that a specific labor or employment law covers the conduct for which a plaintiff
seeks damages, he is barred from using the same conduct to also bring a claim under
Article 1802. Santana-Colon v. Houghton Mifflin Harcout Pub. Co., 81 F. Supp. 3d 129,
140 (D.P.R. 2014). See also Pagán Colón v. Walgreens of San Patricio, Inc., 2014 T.S.P.R.
20, at *4–*5, 2014 WL 782822; Nieves Pérez v. Doctors’ Center, 2011 WL 1843057, at *7
(D.P.R. May 16, 2011); Rosario v. McConnell Valdes, 2008 WL 509204, *2 (D.P.R.
Feb. 21, 2008). An additional claim under Article 1802 may only be brought by the
employee-plaintiff if it is based on tortious or negligent conduct distinct from that
covered by the specific labor law(s) invoked.” See Rosario, 2008 WL 509204, **1-2;
Medina v. Adecco, 561 F. Supp. 2d 162, 175–76 (D.P.R. 2008).
In this case, based on the allegations and evidentiary material of record, it is clear
that Oquendo grounds her Articles 1802 and 1803 claims on the same conduct that
supports her employment discrimination and retaliation claims under federal and
Puerto Rico laws. She alleges no independent tortious conduct by Costco that would
make her tort claims plausible. To the extent that Oquendo cannot recover damages
under the Puerto Rico general tort statute for the same conduct that is covered by the
specific federal and Puerto Rico employment statutes that she invokes in this suit, the
Court must DISMISS with prejudice her Articles 1802 and 1803 claims.

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V. Conclusion
For the reasons set forth above, the Court GRANTS Costco’s motions to strike at
Docket Nos. 38 and 39 and GRANTS Costco’s motion for summary judgment at Docket
No. 26 in its entirety. Accordingly, the Court DISMISSES with prejudice all claims
against Costco.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 7th day of April 2020.
s/Marshal D. Morgan
MARSHAL D. MORGAN
United States Magistrate Judge