Alicea v. Veteran's Affairs Adm. et al
Filing
77
OPINION AND ORDER: The Court GRANTS Defendant's Motion for Summary Judgment at Docket No. 50 . Judgment of Dismissal with Prejudice shall be entered accordingly. Signed by Judge Raul M. Arias-Marxuach on 3/31/2020. (mrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
BLANCA ALICEA,
Plaintiff,
v.
CIVIL NO. 17-2298 (RAM)
ROBERT WILKIE, Secretary
Department of Veterans Affairs
Defendant.
OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, U.S. District Judge
Pending
before
the
Court
is
Defendant
David
J.
Shulkin’s,
Secretary of the Department of Veterans Affairs, Motion for Summary
Judgment, accompanied by a Statement of Uncontested Facts and
Memorandum of Law in Support of Summary Judgment. (Docket Nos. 50,
51 and 54). For the reasons discussed below, having considered the
parties’ submissions both in opposition and support of the same,
the Court hereby GRANTS Defendant’s Motion for Summary Judgment.
(Docket No. 50).
I.
PROCEDURAL BACKGROUND
On November 17, 2017, Plaintiff Blanca Alicea (“Alicea” or
“Plaintiff”) sued David J. Shulkin, M.D., the Secretary of the
United States Department of Veterans Affairs, and the United States
Department of Justice requesting that the Court prohibit the
Veteran
Affairs
Caribbean
Health
Center
(the
“VA”)
from
Civil No. 17-2298 (RAM)
2
terminating her employment at said hospital. (Docket No. 1). This
filing was defective for failure to comply with Local Rule 3. See
L. CV. R. 3.
Plaintiff filed her Verified Amended Complaint on November
20, 2017. (Docket No. 3). As in her original Complaint, Plaintiff
alleged
that
Defendant
violated
Equal
Employment
Opportunity
(“EEO”) waiver requirements under 29 U.S.C. § 626(f). Furthermore,
Alicea
argues
that
Defendant
unlawfully
interfered
with
her
federal statutory employment rights as prohibited by 29 U.S.C. §
626(f)(4) and/or 42 U.S.C. § 1983. (Id. ¶¶ 17-20) by attempting to
“unlawfully
coerce
plaintiff
into
withdrawing
an
EEO
discrimination complaint under threat of termination.” (Id. ¶ 14).
Lastly,
Alicea
prosecution
for
contends
that
interference
Defendant
with
a
may
pending
be
subject
to
administrative
investigation as well as tampering with and retaliating against
witnesses in connection with an administrative proceeding. (Id. ¶
22). Defendant filed his Answer to Amended Complaint on February
22, 2018, denying all allegations. (Docket No. 13).
Plaintiff filed her Second Amended Complaint on June 30, 2018.
(Docket No. 21). In addition to reiterating her aforementioned
claims regarding unlawful interference with statutory rights,
witness tampering and violation of waiver requirements, Plaintiff
added two additional causes of action: (1) violations of the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621, et. seq.; and
Civil No. 17-2298 (RAM)
(2)
unlawful
3
workplace
retaliation.
(Id.
¶
27-34).
Defendant
subsequently filed his Answer to Second Amended Complaint, once
again denying all of Plaintiff’s claims. (Docket No. 23).
On September 25, 2019, Defendant filed a Motion for Summary
Judgment and Statement of Uncontested Facts (“SUF”). (Docket Nos.
50 and 51). Defendant filed a Memorandum of Law in Support of
Motion for Summary Judgment on September 30, 2019. (Docket No.
54).
In
response,
on
October
29,
2019,
Plaintiff
filed
an
Opposition to Defendant’s Motion for Summary Judgment, accompanied
by an Opposing Statement of Material Facts (“Opposition”). (Docket
Nos. 57 and 57-1). Additionally, Plaintiff filed a Supplement to
her Opposition that included a statement of additional facts in
dispute. (Docket No. 62).
On November 22, 2019, Defendant filed a Reply asserting that
Plaintiff’s Opposition was not supported by record citations nor
cross references her Opposing Statement of Material Facts in
violation of Local Rule 56(c) and thus, should not be considered
by the Court. (Docket No. 63 ¶¶ 2-3).
II.
LEGAL STANDARD
A motion for summary judgment is governed by Fed. R. Civ. P.
56(a). Summary judgment is proper if the movant shows that (1)
there is no genuine dispute as to any material fact and (2) they
are 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
Civil No. 17-2298 (RAM)
4
that a reasonable jury could resolve the point in favor of the
non-moving party.” Thompson v. Coca–Cola Co., 522 F.3d 168, 175
(1st
Cir.
2008).
A
fact
is
considered
material
if
it
“may
potentially ‘affect the outcome of the suit under governing law.’”
Albite v. Polytechnic Univ. of Puerto Rico, Inc., 5 F. Supp. 3d
191, 195 (D.P.R. 2014) (quoting Sands v. Ridefilm Corp., 212 F.3d
657, 660–661 (1st Cir. 2000)).
The moving party has “the initial burden of demonstrat[ing]
the absence of a genuine issue of material fact with definite and
competent evidence.” Mercado-Reyes v. City of Angels, Inc., 320 F.
Supp. 344, at 347 (D.P.R. 2018) (quotation omitted). The burden
then shifts to the nonmovant, to present “competent evidence to
rebut the motion.” Bautista Cayman Asset Co. v. Terra II MC & P,
Inc., 2020 WL 118592, at 6* (quoting Méndez-Laboy v. Abbott Lab.,
424 F.3d 35, 37 (1st Cir. 2005)). A nonmoving party must show “that
a trialworthy issue persists.” Paul v. Murphy, 2020 WL 401129, at
*3 (1st Cir. 2020) (quotation omitted).
While a court will draw all reasonable inferences in favor of
the
non-movant,
it
will
disregard
conclusory
allegations,
unsupported speculation and improbable inferences. See Johnson v.
Duxbury,
Massachusetts,
931
F.3d
102,
105
(1st
Cir.
2019).
Moreover, the existence of “some alleged factual dispute between
the parties will not affect an otherwise properly supported motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 379 (2007)
Civil No. 17-2298 (RAM)
5
(quotation omitted). Hence, a court should review the record in
its entirety and refrain from making credibility determinations or
weighing the evidence. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 135 (2000).
In this District, summary judgment is also governed by Local
Rule 56. See L. CV. R. 56(c). Per this Rule, an opposing party
must “admit, deny or qualify the facts supporting the motion for
summary judgment by reference to each numbered paragraph of the
moving party’s statement of material facts.” Id. Furthermore,
unless the fact is admitted, the opposing party must support each
denial or qualification with a record citation. Id.
Additionally, Local Rule 56(c) allows an opposing party to
submit additional facts “in a separate section.”
L. CV. R. 56(c).
Given that the plain language of Local Rule 56(c) specifically
requires that any additional facts be stated in a separate section,
parties are prohibited from incorporating numerous additional
facts within their opposition. See Natal Pérez v. Oriental Bank &
Trust, 291 F. Supp. 3d 215, 218-219 (D.P.R. 2018) (quoting Carreras
v. Sajo, Garcia & Partners, 596 F.3d 25, 32 (1st Cir. 2010) and
Malave–Torres v. Cusido, 919 F.Supp. 2d 198, 207 (D.P.R. 2013)).
If a party opposing summary judgment fails to comply with
the rigors that Local Rule 56(c) imposes, “a district court is
free, in the exercise of its sound discretion, to accept the moving
party's facts as stated.” Caban Hernandez v. Philip Morris USA,
Civil No. 17-2298 (RAM)
6
Inc., 486 F.3d 1, 7 (1st Cir. 2007). Thus, litigants ignore this
rule at their peril. See Natal Pérez, 291 F. Supp. 3d at 219
(citations omitted).
III. FINDINGS OF FACT
To make findings of fact, the Court analyzed Defendant’s
Statement of Uncontested Facts in support of Motion for Summary
Judgment
(“SUF”)
(Docket
No.
51)
and
Plaintiff’s
Opposing
Statement of Material Facts (Docket No. 57-1), as well as her
statement of additional facts in dispute provided in the Supplement
to her Opposition. (Docket No. 62). It is worth noting that
Plaintiff uses identical language and record citations in every
one of her fourteen (14) denials to the VA’s SUF. (Docket No. 571 ¶¶ 9-15; 17-22; 28). In other words, Plaintiff relies exclusively
on the same nine (9) pages of her deposition testimony as well as
her statements to the EEO to attempt to controvert facts.1
After
only
crediting
material
facts
that
are
properly
supported by a record citation and uncontroverted, the Court makes
the following findings of fact:
1. Plaintiff was born on January 13, 1962. (Docket No. 51 ¶ 1).
2. Plaintiff
was
fifty-five
(55)
years
old
when
she
terminated in 2017. (Id.).
References to a specific Finding of Fact shall be cited in the following
manner: (Fact ¶ _).
1
was
Civil No. 17-2298 (RAM)
7
3. On August 2, 2010, Alicea was assigned to the position of
“Health Science Specialist” in the Office of the Chief of
Staff,
Infection
Control
Program
at
the
Veterans
Administration Caribbean Healthcare System (the “VACHCS” or
“VA”). (Id. ¶ 2).
4. Alicea maintained this position throughout her employment at
the VACHCS. (Id.).
5. Plaintiff received within-grade pay increases in 2012, 2014
and 2016. (Id. ¶ 6).
6. Mirsonia M. Martínez-Morales (Martínez) held the position
“Infection Control Coordinator GS-13” and was Plaintiff’s
immediate supervisor from 2010 through 2017. (Id. ¶ 3).
7. Martinez was born in April 1965 and was fifty-two (52) years
old at the time of Plaintiff’s termination. (Id. ¶ 4).
8. Plaintiff
had
five
(5)
coworkers,
namely:
Rafael
Cabán,
fifty-nine (59) years old; Veronika Kerkado, sixty (60) years
old; Nancy Roman, forty-three (43) years old; Damaris Román,
thirty-eight (38) years old; and Zydnia Pomales, sixty-six
(66) years old. (Id. ¶ 5).
9. These coworkers also received within-grade increases during
their employment. (Id. ¶ 7).
10. Plaintiff
received
performance
employment at the VA. (Id.).
appraisals
during
her
Civil No. 17-2298 (RAM)
8
11. Plaintiff’s overall performance rating for the year 2010 was
“outstanding.” (Exhibit No. 62-14 at 1).
12. Plaintiff’s overall performance rating for the year 2011 was
“outstanding.” (Exhibit No. 62-14 at 3).
13. Plaintiff’s overall performance rating for the year 2012 was
“fully successful.” (Exhibit No. 62-14 at 5).
14. Plaintiff’s overall performance rating for the year 2013 was
“fully successful.” (Exhibit No. 62-14 at 7).
15. Plaintiff’s overall performance rating for the year 2014 was
“fully successful.” (Exhibit No. 62-14 at 9).
16. Plaintiff’s overall performance rating for the year 2015 was
“fully successful.” (Exhibit No. 62-14 at 11).
17. Plaintiff’s overall performance rating for the year 2016 was
“fully successful.” (Exhibit No. 62-14 at 13).
18. Said appraisals contained the following five performance
elements
and
standards:
customer
service,
surveillance,
prevention and control, age related, and education. (Docket
No. 51 ¶ 7).
19. Specifically, the “Surveillance”
performance element and
standard required the following:
Conducts surveillance according to laboratory data
and epidemiologic principles aimed at detecting and
recording hospital associated infections. No more
than three deviations with no adverse impact will
be accepted during the rating period.
Civil No. 17-2298 (RAM)
9
Assists in her assigned area problem resolution of
IC issues as directed by the Infection Control
Committee. No more than three deviations with no
adverse impact will be accepted during the rating
period.
Serves as resource for the Department of Health
investigations and follows-up during outbreaks or
acts of bioterrorism. No more than three deviations
with no adverse impact will be accepted during the
rating period.
(Id. ¶ 8).
20. On March 31, 2017, Martínez, Plaintiff’s supervisor, sent
Alicea a Memorandum with the subject “PIP Meeting Request.”
In this Memorandum, Martínez informed Plaintiff that she was
“not meeting the standard of Surveillance” pursuant to her
performance appraisal. Therefore, Martínez was scheduling a
meeting
for
April
5,
2017,
to
develop
a
Performance
Improvement Plan (“PIP”) to provide Alicea “with all the
necessary tools to achieve successful performance in this
critical element.” The Memorandum also notified Plaintiff
that she had the right to union representation during the
meeting. (Id. ¶ 10).
21. On April 5, 2017, Plaintiff received a Memorandum titled
“Notification
of
Unacceptable
Performance/Opportunity
to
Improve,” detailing both the deficiencies of Plaintiff’s
performance and the nature of the ninety (90) day PIP to be
implemented. (Docket Nos. 51 ¶¶ 12-13; 51-9).
Civil No. 17-2298 (RAM)
10
22. Specifically, the Memorandum describes the following five
(5) instances in which Alicea deviated from the standard for
surveillance:
1. On 1l/7/16, I explained to you regarding a case
that you took as PNUl and it should be classified
as PNU2, as patient had positive aspirated
sputum culture results. Per CDC guidelines. PNU1
category is without culture specimen results.
Also, signs and symptoms described by you in the
surveillance log for this case were not inside
the infection window period as required by CDC
guidelines.
2. On 11/7/16, you took a case as hospital acquired
skin infection with a susceptible organism
(Penile prosthesis infection). I explained to
you that patient had a surgery, and as per CDC
guidelines should be taken as surgical site
infection (SSI) and not skin infection. Also,
survei11ance of skin infections was not supposed
to be taken, unless it was an infection with a
Multi drug resistant organism, which was not the
case. This case shouldn't be taken as a Hospital
acquired infection, it was a community acquired
infection; Infectious diseases note (9/30/16)
documents
that
patient
had
previous
interventions
and
infections
of
penile
prosthesis at non-VA hospital. H&P CPRS note
8/23/16, also documents previous prosthesis
surgeries done at non-VA hospital.
3. On 11/4/17 I sent you a message because your
pending UTI list had cultures form October still
without been analyzed. On 11/9/17, cultures were
still pending, therefore, I re-sent you the
message with pending cu1tures list again, to
what you replied that cultures were already
checked. You did not take patient with a
catheter associated urinary tract infection per
CDC guidelines. You classified this patient as
not relevant community acquired UTI in TheraDoc.
4. On 3/2/17 you did not take a patient as a
catheter associated urinary tract infection
Civil No. 17-2298 (RAM)
11
(CAUTI). CDC guidelines were not followed and
record was not appropriately reviewed as there
were many physician notes documenting that
patient had a CAUTl. You documented in CPRS that
no CAUTl was identified.
5. On 3/9/17, during the Pneumonia surveillance,
you marked erroneously a patient with pneumonia
instead of marking the correct patient. After
you did the correction, correct patient was not
marked with appropriate CDC guidelines signs and
symptoms for pneumonia. Also, you marked
erroneously another 2 patients with pneumonia in
the table. These mistakes are related to
recording hospital associated infections as
specified in Surveillance standard.
(Docket Nos. 51 ¶ 13; 51-9 at 2-3).
23. Plaintiff’s
indicates
performance
that
she
appraisal
“[n]eeds
dated
improvement
April
to
6,
be
2017
Fully
Successful or better.” (Id. ¶ 14).
24. On April 14, 2017, Plaintiff initiated contact with an Equal
Employment Opportunity (“EEO”) counselor raising harassment
and discrimination claims. (Docket Nos. 51 ¶ 25; 51-16 at
2).
25. On July 21, 2017, Martínez sent a memorandum to the Chief of
Staff, informing them that “[a]fter the 90 days’ [sic] period
of the PIP, Mrs. Alicea did not achieve a satisfactory level
of performance in the standard of: Surveillance.” (Docket
Nos. 51 ¶ 15; 51-11 at 2).
Civil No. 17-2298 (RAM)
26. That
same
day,
Plaintiff,
12
through
her
Union,
requested
voluntary reassignment to a position within the Nursing
Service.
(Id. ¶ 16).
27. On July 23, 2017, the EEO Counselor issued a report that
provided a brief description of Alicea’s age discrimination
and hostile work environment claims; the resolution sought;
management’s response; a summary of resolution efforts; and
a final interview. (Docket Nos. 51 ¶ 26; 51-17).
28. Plaintiff filed her formal EEO complaint of discrimination
using VA form 4939 on July 26, 2017. (Docket No. 51-16 at
2).
29. The EEO accepted the following claims presented by Alicea
for investigation and further processing:
1. From February 28, 2017 and ongoing, Mirsonia
Martinez (MM), Infection Control Coordinator,
excluded Complainant from serving temporary
leadership duties.
2. From February 28, 2017 and ongoing, the
complainant has never been awarded a Quality
Step Increase.
3. On April 5, 2017, MM placed the Complainant on
a Performance Improvement Plan (PIP).
4. On April 6, 2017, MM issued Complainant a midterm evaluation with the following progress
review:
“needs
improvement
to
be
Fully
Successful or better.
(Docket Nos. 51 ¶ 25; 51-16 at 3).
Civil No. 17-2298 (RAM)
13
30. On August 17, 2017, the acting Chief of Staff, Dr. William
Acevedo, issued a Notice of Proposed Removal – Unacceptable
Performance
to
Plaintiff.
Plaintiff
and
AFGE
Local
2408
received the notice on August 21, 2017. (Docket No. 51 ¶ 17;
51-13).
31. The Notice provided the following reasons for why it was
being
proposed
that
Plaintiff
be
removed
from
federal
service:
For the period of April 5, 2017 through June 29,
2017, you failed to meet the performance standards
of the critical element of your position entitled
Surveillance.
Specifically,
during
the
above
period
your
performance, as measured against the performance
standards for the critical element of your
position, has been as follows:
Standard: Conducts surveillance according to
laboratory data and epidemiologic principles aimed
at detecting and recording hospital associated
infections.
Actual Performance: Unacceptable.
1. On 06/29/17, it was identified that you failed
to conduct surveillance per CDC guidelines as
you took a Lt Total Knee arthroplasty surgery
as a Surgical Site Infection (SSI). You
documented this case as a hospital associated
infection (HAI) in Infection Control (IC)
surgical site HAI log. This case was operated
in 3/21/2011 and you documented that was
operated in 3/21/2017. Also, wrong surgeon name
was entered in log, and anesthetist name was
entered instead of first assistant name (this
was also identified in another case on
04/20/17).
Civil No. 17-2298 (RAM)
2. On 6/29/17, it was identified that you altered
IC data in Open Heart Surveillance June log. You
changed the initials of the employee that did
this surveillance in 2 patients (as this
employee was assigned to do it), and placed
yours, adjudicating her job to you.
3. On 6/29/17, it was identified that you
erroneously classified a patient with 2 urine
cultures with same results and collected same
dates in Theradoc; one as Hospital acquired (HA)
and the other as Community acquired (CA). Also
on 5/3/17, was identified that you classified a
sputum/culture
as
not
relevant
Hospital
acquired, and should be not relevant Community
acquired.
Also,
urine/culture
from
MICU
classified as not relevant (CA), and should be
not relevant.
4. On 06/16/17 (due date to complete surveillance
was 06/14/17), you mentioned that 2 cases of
Ventilator associated condition (VAC) were not
entered in Theradoc for the statistics and that
one of them was not even analyzed. She referred
that one case was in the back of the page and
she did not notice it. Surveillance timeliness
was also failed on 5/17/17.
5. On 6/09/17, it was identified that you
incompletely filled IC Knee and Hip arthroplasty
surveillance log for April and one patient was
not entered to do surveillance. On 6/29/17, it
was identified that you failed to enter 3
patients in May log, and surveillance was not
performed. Also, the 30 days' [sic] post-surgery
surveillance was done in one case prior to the
end of the 30 days' [sic] period. This was also
identified on 4/20/17 and 4/26/17, were in 4
patients you did the surveillance and documented
it in CPRS notes prior to the end of the 30 days
post-surgery period.
6. On
6/9/17,
it
was
identified
that
you
erroneously recorded a Catheter Associated
Urinary tract infection (CAUTI) in IC Hospital
associated
infection
log
and
in
your
surveillance
notebook.
You
documented
as
14
Civil No. 17-2298 (RAM)
15
criteria for CAUTI bradycardia (that is criteria
for less than 1 year old patient) and fever of
100.2 F which is not criteria.
7. On 6/9/17, you documented on CPRS note that
diagnosis upon admission was a Suprapubic
abscess 2ary to MRSA, and patient did not come
to hospital with the abscess, it was a hospital
acquired MRSA abscess.
8. On 4/20/17, it was identified that you failed
to conduct surveillance per CDC guidelines as
you took a S/P Resection arthroplasty as a
Surgical Site Infection (SSI) and this case
shouldn't be taken as it was an already infected
class IV surgery.
9. You did surveillance on Hepatitis B results, and
reported Hepatitis B core results to P.R.
Department of Health, and cases were not
indicated to be reported. Only cases in acute
phase, should be reported as per Department of
Health law. Letter sent to Department of Health
with corrections.
10. On 5/3/17, Clinical Case Registry pending
Hepatitis C Virus list of cases was provided to
her for surveillance, there were to many pending
cases. This list should be reviewed on a weekly
basis to confirm or delete cases accordingly.
List had 3 cases that should be confirm [sic]
since April. List was never received back for
my review, Mrs. Alicea said that she did not has
[sic] the list and don't [sic] know where she
placed it.
(Docket Nos. 51 ¶ 17; 51-13 at 2-4).
32. Alicea’s “Overall Rating,” i.e. annual rating of record,
pursuant to her Performance Appraisal dated October 30, 2017
was “UNACCEPTABLE – The achievement level(s) for one (or more)
critical
element(s)
is(are)
designated
(Docket Nos. 51 ¶ 18; 51-2 at 6).
as
Unacceptable.”
Civil No. 17-2298 (RAM)
16
33. The Additional Comments/Information section of Plaintiff’s
October 30, 2017 Performance Appraisal stated the following:
After Mrs. Alicea was placed under Performance
Improvement Plan (PIP), Mrs. Alicea failed to
achieve fully successful level of performance level
in this standard due to the following:
on 06/29/17 it was identified that Mrs. Alicea
failed to conduct surveillance per CDC guidelines
as she documented a Left knee arthroplasty surgery
as a surgical site infection (SSI). Mrs. Alicea
documented this case as a hospital associated
infection (HAI) in infection control (IC) surgical
site HAI log. This case was operated on 03/21/2011,
and Mrs. Alicea documented that was operated
03/21/2017. Also, wrong surgeon name was entered in
log and anesthetist name was entered instead of
first assistant surgeon name (this was also
identified in another case on 04/20/17).
On 06/29/17, it was identified that Mrs. Alicea
erroneously classified a patient with two urine
cultures with same results and collected same dates
in TheraDoc software; one as hospital acquired (HA)
and the other as community acquired (CA). Also on
05/03/17,
was
identified
that
Mrs.
Alicea
classified a sputum culture as not relevant HA, and
should be not relevant CA. Also urine culture from
MICU classified as not relevant CA, and should be
not relevant.
On 06/16/17 (due date to complete surveillance was
06/14/17) Mrs. Alicea mentioned that two (2) cases
of ventilator associated condition (VAC) were not
entered in TheraDoc for the statistics and that one
of them was not even analyzed. Mrs. Alicea referred
that one case was in the back of the page and she
did not notice it. Surveillance timeliness was
also,failed on 05/17/17.
On 06/09/17,it was identified that Mrs. Alicea
erroneously recorded a catheter associated urinary
tract infection (CAUTI) in IC hospital associated
infection log and in her surveillance notebook.
Mrs. Alicea documented as criteria for CAUTI
Civil No. 17-2298 (RAM)
17
bradycardia (that is criteria for less than 1 year
old patient) and fever of 100·. 2 F which is not a
criteria.
On 06/09/17, Mrs. Alicea documented on CPRS note
that diagnosis upon admission was suprapubic
abscess secondary to MRSA, and patient did not come
to hospital with the abscess, it was a HA MRSA
abscess.
On 04/20/17, it was identified that Mrs. Alicea
failed to conduct surveillance per CDC guidelines
as she documented a 8/P resectiun arthroplasty as
a surgical site infection (SSI), and this case
should not be taken as it was an already infected
Class IV surgery.
(Docket Nos. 51 ¶ 19; 51-2 at 6-7).
34. On
November
2,
2017,
the
Acting
Director,
Dr.
Antonio
Sánchez, issued a “Decision Letter - Removal” notifying
Plaintiff that a decision had been made to sustain the charge
of unacceptable performance.” (Docket No. 51 ¶ 20).
35. The Decision Letter also provided Alicea with the opportunity
to accept a “Last Chance Agreement” (“LCA”). Pursuant to the
LCA, Plaintiff would be transferred to a Staff Nurse position
in exchange for, amongst other
things, agreeing to the
following language:
I, Blanca Alicea, agree to voluntarily withdraw any
and all pending informal and formal EEO complaints,
any appeals to the Merit Systems Protection Board,
any complaints before the Office of Special
Counsel,
any
grievances,
whether
formal
or
informal, any court actions, and all other claims
arising under any federal, state, or local law,
regulation, or ordinance, against the Agency, its
past and present administrators or employees, in
their personal or official capacities, in any stage
Civil No. 17-2298 (RAM)
18
of processing in their entirety, including, but not
limited to, EEO Case No. 200I-0672-2017103130.
(Docket Nos. 51 ¶¶ 21-22; 51-14 at 5).
36. Plaintiff was advised that if she declined the LCA, the
decision to remove her from Federal Service would be enforced
immediately. (Docket No. 51 ¶ 21).
37. On
November
17,
2017,
Alicea
was
personally
handed
an
“Enforcement Decision – Removal” letter signed by the Acting
Director of VA, Dr. Antonio Sánchez. (Id. ¶ 24).
38. The letter notified Plaintiff that because she did not accept
the LCA, she was being removed from Federal Employment based
on the charge of unacceptable performance effective November
21, 2017. (Docket Nos. 51 ¶ 24; 51-15 at 2).
39. On November 17, 2017, the EEO issued an Investigative report.
(Docket No. 51 ¶ 27).
40. On February 12, 2018, the EEO issued a Final Agency Decision
concluding
that
Alicea
“failed
to
prove
that
she
was
discriminated against as claimed.” (Docket No. 51 ¶ 28).
41. Furthermore, the Final Agency Decision informed Plaintiff
that
she
has
the
right
to
file
a
civil
action
in
an
appropriate United States District Court “within 90 days of
receipt of this final decision if no appeal to the EEOC has
been filed.” (Id. ¶ 29).
Civil No. 17-2298 (RAM)
19
IV.
A.
ANALYSIS
The Age Discrimination in Employment Act
Alicea sued Defendant for alleged violations to the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623. (Docket
No. 21 ¶ 27-31). The ADEA makes it unlawful for an employer to
discharge,
take
adverse
employment
action
or
otherwise
discriminate against any individual because of their age. See 29
U.S.C.A. § 623(a). Thus, for a claim to arise under this statute,
“the plaintiff’s age must have actually played a role in the
employer’s
decision
making
process
and
had
a
determinative
influence on the outcome.” Arce v. Aramark Corporation, 239 F.Supp.
2d 153, 159 (D.P.R. 2003) (emphasis added) (citing Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)).
The Supreme Court has held that for a plaintiff to prevail in
a lawsuit under the ADEA, they “must prove that age was the ‘butfor’ cause of the employer’s adverse decision.” Gross v. FBL
Financial Services, Inc., 557 U.S. 167, 176 (2009) (emphasis
added).
Hence,
they
must
prove
through
preponderance
of
the
evidence that age “must have been the determinative factor as
opposed to merely a motivating factor in the employer’s decision.”
Rivera-Cruz v. Hewitt Assocs. Caribe, Inc., 2018 WL 1704473, at *6
(D.P.R. 2018) (citation omitted). Thus, “mixed-motive” cases where
“an employee alleges that [they] suffered an adverse employment
action
because
of
both
permissible
and
impermissible
Civil No. 17-2298 (RAM)
20
considerations” are insufficient for a successful ADEA claim.
Gross, 557 U.S. at 171.
In the absence of direct evidence of discrimination, as is
often the case, Courts asses circumstantial evidence through the
three-step, burden-shifting framework established in the seminal
case McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).
See Flaherty v. Entergy Nuclear Operations, Inc., 946 F.3d 41, 53
(1st Cir. 2019). First, the plaintiff must establish a prima facie
case
of
age
discrimination
showing,
by
preponderance
of
the
evidence, that they: (1) were at least forty (40) years old at the
time of the alleged adverse employment action; (2)
were qualified
for the position they held; (3) suffered an adverse employment
action; and (4) the employer later filled the position, thereby
demonstrating
the
continuing
need
for
those
services.
See
Rodriguez-Cruz v. Stewart Title Puerto Rico, Inc., 209 F. Supp. 3d
427, 438–39 (D.P.R. 2016); Arroyo-Audifred v. Verizon Wireless,
Inc., 527 F.3d 215, 219 (1st Cir. 2008) (citing Mesnick v. Gen.
Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)).
Once
the
plaintiff
establishes
a
prima
facie
case
of
discrimination, a presumption of discrimination arises. The burden
then shifts to the employer to rebut said presumption and “come
forward
with
a
legitimate,
nondiscriminatory
reason
for
its
action.” Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d
654, 662 (1st Cir. 2010). To do so, “[t]he defendant must clearly
Civil No. 17-2298 (RAM)
set
forth,
through
the
21
introduction
of
admissible
evidence,
reasons for its actions which, if believed by the trier of fact,
would support a finding that unlawful discrimination was not the
cause of the employment action.” Feliciano de la Cruz v. El
Conquistador Resort and Country Club, 218 F. 3d 1, 5-6 (1st Cir.
2000) (quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507
(1993)). If the defendant produces a legitimate basis for the
adverse action, then the presumption of discrimination disappears
and the final shift of the burden of production occurs.
In this final step, a plaintiff bears the burden of showing
that the rationale provided by the employer was solely “a pretext
for impermissible age discrimination.” Martinez v. Nordisk, 397 F.
Supp. 3d 207, 219 (D.P.R. 2019) (quotation omitted). To do so, the
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.” Id. (quoting Meléndez v. Autogermana, Inc., 622
F.3d 46, 52 (1st Cir. 2010)). These specific facts can include
inconsistencies, contradictions, weaknesses or incoherencies in
the employer’s reason sufficient to show that the employer failed
to act in a non-discriminatory way. See Reyes Caballero v. Oriental
Bank, 2019 WL 6330812, at *11 (D.P.R. 2019) (quotation omitted).
It is worth noting that said “pretext analysis is more demanding
than the prima facie standard.” Id.
Civil No. 17-2298 (RAM)
Moreover,
the
22
mere
fact
that
the
McDonnell
Douglas
presumption may shift the burden of production to the defendant,
does not mean that a plaintiff loses their burden of proof. Rather,
the plaintiff maintains this burden throughout the life of the
case. See Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 2526 (1st Cir. 1997) (holding that although the burden of production
shifts, the burden of persuasion remains with the plaintiff at all
times).
In this case, Defendant concedes that three of the four
elements of a prima facie ADEA case are met. Namely: (1) Plaintiff
is over the age of forty (40); (2) Plaintiff was terminated and
thus suffered an adverse employment action; and (3) there exists
a need for her services. (Docket No. 54 at 8). However, Defendant
posits that Alicea was not qualified in light of the various
instances in which Plaintiff failed to meet the standards of her
position. Id. at 7-8. The First Circuit has found that courts
should
not
rely
on
deficient
performance
evaluations
when
assessing if a prima facie case is met when said performance
evaluations are simultaneously invoked as the employer’s nondiscriminatory
reason
for
termination.
See
Melendez
v.
Autogermana, Inc., 622 F.3d 46, 51 (1st Cir. 2010). Doing so would
“bypass the burden-shifting analysis and deprive the plaintiff of
the opportunity to show that the nondiscriminatory reason was in
actuality a pretext designed to mask discrimination.” Id. (quoting
Civil No. 17-2298 (RAM)
23
Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 574 (6th
Cir. 2003)).
Moreover, a relatively low threshold is required to establish
a prima facie case under the ADEA. See Sanchez v. Puerto Rico Oil
Co., 37 F.3d 712, 720 (1st Cir. 1994); Melendez, 622 F.3d at 51
(“[A]n
employee's
burden
at
the
prima
facie
stage
is
not
particularly onerous.”). It is uncontested that Alicea occupied
the Health Science Specialist position since August 2, 2010. (Fact
¶ 3). Moreover, Plaintiff has shown that she received successful
performance evaluations until 2017. (Facts ¶¶ 11-17). Therefore,
Alicea sufficiently evinced that she was initially qualified for
her position. Given that Defendant does not contest that the
remaining three prongs are met, Plaintiff successfully established
a prima facie ADEA case.
The burden of production now shifts to the employer. The Court
finds that
Defendant’s proffered
reasoning regarding Alicea’s
well-documented performance problems supports the existence of a
legitimate, nondiscriminatory reason for placing Plaintiff on a
PIP and ultimately terminating her employment. Pursuant to the
performance criteria by which Plaintiff was evaluated, “[n]o more
than three deviations with no adverse impact will be accepted
during
the
rating
period.”
(Fact
¶
19).
Collectively,
the
“Notification of Unacceptable Performance/Opportunity to Improve”
and “Notice of Proposed Removal – Unacceptable Performance” detail
Civil No. 17-2298 (RAM)
24
a total of fifteen (15) discrete instances in which Plaintiff
deviated from the acceptable surveillance performance standards.
(Facts ¶¶ 21-22; 30-31). Said evidence suffices “to enable a
rational
factfinder
to
conclude
that
there
existed
a
nondiscriminatory reason” for both placing Alicea on a PIP and
subsequently terminating her employment. See Ruiz v. Posadas de
San Juan Assocs., 124 F.3d 243, 248 (1st Cir. 1997).
Thus, the inference of discrimination that arose from the
prima facie case vanishes and the burden returns to Alicea to show
by
preponderance
of
evidence
that
Defendant’s
stated
nondiscriminatory reasons are merely pretext or a sham. See Albite,
5 F. Supp. 3d at 197 (citations omitted). The only evidence
presented by Plaintiff to establish pretext are (1) her performance
evaluations from 2010-2016; (2) her testimony attesting that she
has no history of recurring mistakes; and (3) her testimony stating
that another employee, Gladys Cordero, had also been discriminated
against for her age by her supervisor. (Docket Nos. 57 and 62 at
5-6).
Plaintiff
does
not
specifically
deny
nor
dispute
the
performance problems enumerated by both her supervisor and the
Acting Director of the VA. Id. Instead, Plaintiff provides a
blanket denial and simply maintains that, prior to 2017, her
performance had always been successful. When evaluating whether an
employer’s stated reason for firing a plaintiff was pretextual,
Civil No. 17-2298 (RAM)
25
the question is not whether the plaintiff was actually performing
below expectations, but whether the employer believed that they
were.
See
Feliciano
de
la
Cruz,
218
F.3d
at
7.
Alicea
is
essentially asking the Court to disregard the evidence provided by
Defendant regarding her inadequate performance evaluations at the
time of her dismissal and instead, rely on her own assessment of
her
performance.
Prior
satisfactory,
or
even
outstanding,
performance does not negate future deficiencies, nor does it mar
the
legitimacy
of
subsequent
negative
evaluations.
Moreover,
Alicea’s personal appraisal of her work, without any additional
evidence, is insufficient for a reasonable fact-finder to conclude
that her supervisor and the Acting Director did not actually
believe that Alicea was performing below expectations at the time
of her dismissal. See Melendez, 622 F.3d at 53.
Alicea’s
deposition
testimony
regarding
alleged
discrimination against Gladys Cordero is also insufficient to
establish
pretext.
Although
Plaintiff
alleges
throughout
her
deposition that her supervisor, Mirsonia Martinez, discriminated
against Gladys Cordero because of her age, Alicea also repeatedly
asserts that Martinez discriminated against another employee, Leda
Melendez, who was under the age of forty (40).2 Taking the totality
2
The pertinent part of the Deposition transcript reads as follows:
Q. Okay. Anything else Ms. Alicea?
Civil No. 17-2298 (RAM)
26
of the testimony as true, Plaintiff has not shown by preponderance
of the evidence that a hostile work environment because of age
discrimination existed nor that age was the motivating factor for
her negative performance evaluation and PIP.
Given that no direct evidence of age-based discrimination has
been furnished and taking into consideration that Plaintiff has
failed in providing that the articulated reason for her dismissal
is merely pretextual in nature, Defendant’s Motion for Summary
Judgment is granted as to Plaintiff’s ADEA discrimination claim.
(Count I of the Second Amended Complaint at Docket No. 21).
B.
Retaliation
The ADEA also prohibits retaliation, providing that:
It
shall
be
unlawful
for
an
employer
to
discriminate against any of his employees or
applicants for employment … because such individual
… has opposed any practice made unlawful by this
section, or because such individual … has made a
charge, testified, assisted, or participated in any
manner
in
an
investigation,
proceeding,
or
litigation under this chapter.
29 U.S.C.A. § 623(d). As in discrimination cases, in the absence
of direct evidence, courts “follow the McDonnell Douglas framework
A. Yes. Ms. Mirsonia Martinez had a discrimination pattern, not only with
my coworker Gladys Cordero but she also had one with Ms. Leda Melendez,
she gave her a poor evaluation. Ms. Mirsonia Martinez had a pattern of
abuse and discrimination. And she discriminated against Ms. Gladys Cordero
because of her age, because she was more than 62, over 40 years old. With
Ms. Leda Melendez, she was less than 40 years old, like people say, that
after her work she had been given a lesser evaluation than the work that
she had performed, that is why she left.
Docket No. 62-1 P. 23-24, L. 15-1.
Civil No. 17-2298 (RAM)
in
analyzing
judgment,
whether
‘albeit
with
the retaliation claim's
27
a
retaliation
slight
claim
survives
modifications
distinct
to
summary
account
focus.’” Robinson
v.
Town
for
of
Marshfield, 950 F.3d 21, 30 (1st Cir. 2020) (quoting Soto-Feliciano
v. Villa Cofresi Hotels, Inc., 779 F.3d 19, 30 (1st Cir. 2015)).
Pursuant to said modified framework, plaintiff must make a
prima
facie
conduct;
(2)
showing
they
that
were
(1)
they
subsequently
engaged
in
subjected
ADEA-protected
to
an
adverse
employment action; and (3) a causal connection existed between the
protected conduct and the adverse action. See Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 827 (1st Cir. 1991). It is worth noting that
being unable to establish a prima facie case of ADEA discrimination
does not foreclose plaintiff’s ability to establish a prima facie
case of retaliation. Id. “It is enough that the plaintiff had a
reasonable, good-faith belief that a violation occurred; that
[they] acted on it; that the employer knew of the plaintiff's
conduct; and that the employer lashed out in consequence of it.”
Id.
Once the plaintiff makes a prima facie showing of retaliation,
as in discrimination cases, the burden of production then shifts
to the employer to “offer a legitimate, non-retaliatory reason for
the adverse employment action.” Soto-Feliciano v. Villa Cofresi
Hotels, Inc., 779 F.3d 19, 30 (1st Cir. 2015) (citing Muñoz v.
Civil No. 17-2298 (RAM)
28
Sociedad Española de Auxilio Mutuo y Beneficiencia de Puerto
Rico, 671 F.3d 49, 55 (1st Cir. 2012)).
If evidence of such a reason is provided, “the plaintiff must
assume the further burden of showing that the proffered reason is
a pretext calculated to mask retaliation.” Harrington v. Aggregate
Indus. Ne. Region, Inc., 668 F.3d 25, 31 (1st Cir. 2012) (citation
omitted). A plaintiff does not need to prove retaliation by
preponderance of the evidence to defeat summary judgment. Instead,
they bear “the lighter burden of showing that a genuine issue of
material fact exists about whether retaliation was the true motive
for the adverse employment action in question.” Soto-Feliciano,
779 F.3d at 31. (emphasis added). Courts confronted by summary
judgment motions must consider the evidence as a whole to determine
“whether the aggregate evidence of pretext and retaliatory animus
suffices to make out a jury question.” Mesnick, 950 F.2d at 827.
Alicea predicates her retaliation claim exclusively on the
temporal proximity between her initial contact with the EEOC and
her negative performance evaluation and Performance Improvement
Plan (PIP). (Docket Nos. 57 and 62 at 2-4). Moreover, Plaintiff
claims that the retaliatory PIP created a hostile work environment.
The First Circuit has held in other ADEA retaliation cases that
“[a] very close temporal proximity between an employer's knowledge
of a protected activity and an adverse action can suffice to
support an inference of a causal connection in some circumstances.”
Civil No. 17-2298 (RAM)
29
Robinson, 950 F.3d at 30 (citing Calero-Cerezo v. U.S. Dep't of
Justice, 355 F.3d 6, 25 (1st Cir. 2004); Mesnick, 950 F.2d at 828).
The relevant adverse employment actions, specifically placing
Alicea
on
evaluation,
a
PIP
and
occurred
giving
on
her
April
5,
an
unsuccessful
2017
and
performance
April
6,
2017,
respectively. (Facts ¶¶ 21-23).3 There are some discrepancies with
regards to the date in which Plaintiff engaged in ADEA protected
conduct. In her Opposing Statement of Material Facts, Plaintiff
admitted the fact that she made initial contact with an EEO
counselor on April 14, 2017. (Docket No. 57-1 ¶ 25). This date is
supported by a letter from the Department of Veterans Affairs,
Office
of
Resolution
Management
specifying
that
Plaintiff
initiated contact with an EEO counselor on April 14, 2017 (Docket
No. 51-16). However, in the Supplement to her Opposition Alicea
claims that she initiated contact with the EEO on April 3, 2017,
citing her deposition testimony and notes with said date. (Docket
Nos. 62 ¶¶ 25-26; 62-2).
In either case, with the record before the Court, a reasonable
juror could not find that there was a causal connection between
Alicea's initial contact with the EEOC and any adverse actions
that followed based on timing alone. The record shows that on March
The Court notes that Plaintiff used the same blanket denial with regards to
these facts although she subsequently affirmed that they occurred on the
provided dates in the Supplement to her Opposition. (Docket Nos. 57-1 ¶¶ 1214; 62 at 2-6).
3
Civil No. 17-2298 (RAM)
30
31, 2017, i.e. before both dates, Martínez sent Alicea a Memorandum
titled “PIP Meeting Request” informing Plaintiff that she was not
meeting the applicable performance standards and thus, they were
going to have a meeting on April 5, 2017 to develop a PIP. (Facts
¶ 20). Although Plaintiff clearly takes issue with the claims
regarding her performance, she did not deny that the memorandum
existed, that she received it on March 31st, nor that the copy
submitted by Defendant as an exhibit was accurate. (Docket No. 571 ¶ 10-11). Pursuant to the evidence before the Court, Plaintiff
was: (1) informed of her performance deficiencies and imminent PIP
in the March 31, 2017 memorandum; (2) placed on a PIP on April 5,
2017 pursuant to said memorandum; and (3) given a performance
appraisal on April 6, 2017. (Facts ¶¶ 20-23). Thus, even if Alicea
initiated contact with the EEO on April 3, 2017, Plaintiff cannot
sustain that a causal connection existed between her protected
conduct and the adverse action because she had been notified of
her negative performance evaluation and PIP before she engaged in
ADEA protected conduct. Moreover, Plaintiff has not alleged nor
evidenced that the VA was cognizant of any ADEA protected activity
prior to April 14, 2017, let alone before the March 31, 2017
memorandum. The failure to show causation is fatal to Alicea’s
retaliation claim. See Sabinson v. Trustees of Dartmouth Coll.,
542 F.3d 1, 5 (1st Cir. 2008). In Sabinson, Dartmouth College
formally decided to “marginalize” Professor Sabinson to certain
Civil No. 17-2298 (RAM)
31
courses after receiving various complaints of her performance on
June 3, 2005. Id. at 2-5. Professor Sabinson filed an EEO complaint
on August 8, 2005 and ultimately received her “unattractive” course
assignments on August 16, 2005. Id. at 5. The First Circuit held
that while contacting the EEOC or filing a complaint “cannot be
the basis for adverse employment action but it also cannot immunize
an employee from action already planned and not dependant [sic] on
the complaint.” Id.
It is uncontroverted that the VA was aware of Plaintiff’s age
discrimination claim pending before both the EEOC and this Court
at
the
time
of
her
dismissal.
However,
said
knowledge
is
insufficient to take a retaliation case to the jury. See Mesnick,
950 F.2d at 828. “Were the rule otherwise, then a disgruntled
employee,
no
matter
how
poor
[their]
performance
[…],
could
effectively inhibit a well-deserved discharge by merely filing, or
threatening
also Clark
to
Cty.
(2001) (per
file,
Sch.
curiam)
a
discrimination
complaint.”
Dist. v. Breeden,
(“Employers
need
532
not
U.S.
suspend
Id.
See
268,
272
previously
planned [actions] upon discovering that a [discrimination] suit
has
been
filed,
contemplated,
and
though
their
not
proceeding
yet
along
definitively
lines
previously
determined,
is
no
evidence whatever of causality”).
Lastly, in the Supplement to her Opposition, Plaintiff claims
that her supervisor “expressed concern” that Alicea was reporting
Civil No. 17-2298 (RAM)
32
diseases at the VA and thus had “had an ulterior motive or reason
to find a way to quickly remove” her from employment. (Docket No.
62 ¶ 5). This reasoning undermines Plaintiff’s claims that she was
retaliated against and given a PIP for contacting the EEOC. See
Sabinson, 542 F.3d at 5 (concluding that “the existence of personal
or professional hostility toward [an employee] based on other
reasons tends to work against her claim of discrimination.”).
Given that Alicea has failed to establish the existence of a
causal connection between the previously planned PIP and her EEO
complaint, Defendant’s Motion for Summary Judgment is granted as
to Plaintiff’s retaliation claim (Count II of the Second Amended
Complaint at Docket No. 21).
C.
Unlawful-interference with Statutory Rights and Violation
of EEO Waiver Requirements
Pursuant to the LCA offered on November 2, 2017, Alicea would
have been transferred to a Staff Nurse position in exchange for
voluntarily withdrawing her pending EEO complaints. (Fact ¶ 35).
Plaintiff claims that because her EEO complaints alleged ADEA
violations,
the
LCA
needed
to
comply
with
the
ADEA
requirements listed at 29 U.S.C.A. § 626(f) to be valid.
waiver
(Docket
No. 62 ¶¶ 13-19). However, because the LCA did not comply with
said statutory requirements, Plaintiff argues that it was an
unlawful interference of her right to participate in an EEO
investigation. Id.
Civil No. 17-2298 (RAM)
In
her
Second
33
Amended
Complaint,
Plaintiff
raises
her
“unlawful-interference with statutory rights” claim pursuant to 29
U.S.C. §626(f)(4) and/or 42 U.S.C. § 1983. (Docket No. 21 at 11).
Said section of the ADEA dictates that “[n]o waiver agreement may
affect the Commission's rights and responsibilities to enforce
this chapter. No waiver may be used to justify interfering with
the protected right of an employee to file a charge or participate
in an investigation or proceeding conducted by the Commission.” 29
U.S.C.A. § 626(f)(4). The Third Circuit has determined that the
purpose of § 626(f)(4) is to notify parties that “whatever its
provisions, a privately executed waiver agreement cannot alter or
obstruct
the
EEOC's
ability
to
exercise
its
rights
and
responsibilities, and that an employer may not invoke a waiver in
an
attempt
to
impede
an
employee's
participation
in
EEOC
procedures.” Wastak v. Lehigh Valley Health Network, 342 F.3d 281,
289–90 (3d Cir. 2003). In other words, this section merely states
the limits of ADEA waivers, regardless of their validity. It does
not give rise to an independent cause of action as Plaintiff
alleges.
Defendant correctly asserts that 42 U.S.C. § 1983 is equally
inapplicable. (Docket No. 54 at 19-20). “Because section 1983
provides a remedy for violations of federal law by persons acting
pursuant to state law, federal agencies and officers are facially
exempt from section 1983 liability inasmuch as in the normal course
Civil No. 17-2298 (RAM)
34
of events they act pursuant to federal law.” Hindes v. F.D.I.C.,
137 F.3d 148, 158 (3d Cir. 1998) (citing District of Columbia v.
Carter, 409 U.S. 418, 425, (1973)).
Plaintiff
also
avers
a
separate
cause
of
action
for
“violation of EEO waiver requirements” in general, pursuant to 29
U.S.C. § 626(f). (Docket No. 21 at 11). The Tenth Circuit has held
that the waiver provisions of the ADEA are not “swords that provide
plaintiffs with an independent cause of action for affirmative
relief, other than declaratory or injunctive relief to negate the
validity of the waiver.” Whitehead v. Oklahoma Gas & Elec. Co.,
187 F.3d 1184, 1191 (10th Cir. 1999) (emphasis added). Likewise,
when faced with analogous claims, District Courts have routinely
held that the waiver provisions of the ADEA do not create an
additional, independent cause of action under these statutes. See
EEOC v. Sara Lee Corp., 923 F.Supp. 994, 999 (W.D. Mich. 1995) (“a
failure to meet the [ADEA waiver] requirements does not constitute
a separate cause of action and is not a violation of the ADEA”);
Marks v. New York Univ., 61 F. Supp. 2d 81, 90 n. 7 (S.D.N.Y. 1999)
(concluding that § 626(f) does nothing more “than prescribe the
requirements for an effective waiver of ADEA claims.”); Management
Employees of AT & T v. AT & T, 1999 WL 334751 (D.N.J. 1999)
(“[p]laintiffs have cited no support—and this Court has found none—
for the contention that [requiring employees to sign a deficient
release to participate in an early retirement program], if proven,
Civil No. 17-2298 (RAM)
35
creates an independent cause of action.”); E.E.O.C. v. UBS Brinson,
Inc., 2003 WL 133235, at *3-5 (S.D.N.Y. Jan. 15, 2003).
Given that Alicea has not provided any authority to support
the existence of her “unlawful-interference with statutory rights”
and “violation of EEO waiver requirements” claims under 29 U.S.C.
§ 626 and/or 42 U.S.C. § 1983, Defendant’s Motion for Summary
Judgment is granted as to said causes of action (Counts III and V
of the Second Amended Complaint at Docket No. 21).
D.
Witness Tampering
Lastly, Plaintiff claims that Defendant may be subject to
prosecution for “interference with an administrative investigation
under the omnibus clause of 18 U.S.C. § 1505” and/or “tampering
with and retaliating against a witness in connection with an
administrative proceeding” under 18 U.S.C. § 1513. (Docket No. 21
¶ 39).
18 U.S.C. § 1505 establishes a term of imprisonment for any
person
who
“corruptly,
or
by
threats
or
force,
or
by
any
threatening letter or communication influences, obstructs, or
impedes or endeavors to influence, obstruct, or impede the due and
proper administration of the law under which any pending proceeding
is being had before any department or agency of the United States.”
This is a criminal statute that does not create a civil cause of
action. Furthermore, merely offering a LCA, regardless of any
deficiencies it may have, cannot be constituted as an attempt to
Civil No. 17-2298 (RAM)
36
corruptly influence or obstruct an EEO proceeding. More so when
Plaintiff did not sign the LCA and it was never enforced. (Fact ¶
38).
Likewise, 18 U.S.C. § 1513 specifies the criminal sanctions
that apply to “whoever kills or attempts to kill another person
with intent to retaliate against any person for” attending or
assisting with official proceedings. This is also not a civil cause
of action and is plainly inapplicable to the case at hand.
Because Plaintiff’s witness tampering claim lacks an arguable
basis either in law or in fact, Defendant’s Motion for Summary
Judgment is granted as to this cause action (Count IV of the Second
Amended Complaint at Docket No. 21).
V.
For
the
foregoing
CONCLUSION
reasons,
the
Court
GRANTS
Defendant’s
Motion for Summary Judgment at Docket No. 50. Consequently, all of
Plaintiff’s claims are DISMISSED WITH PREJUDICE. Judgment shall be
entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 31st day of March 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
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