Hernandez v. Potter et al, No. 3:2006cv01799 - Document 51 (D.P.R. 2009)

Court Description: OPINION AND ORDER GRANTING 30 MOTION for Summary Judgment filed by John Potter. Judgment to enter dismissing Plaintiff's claims, in their entirety, with prejudice. Signed by Chief Judge Jose A Fuste on 3/11/09.(mrj)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO ARTURO HERNÃ NDEZ, Plaintiff, Civil No. 06-1799 (JAF) v. JOHN POTTER, UNITED STATES POSTMASTER GENERAL, Defendant. OPINION AND ORDER 11 12 Plaintiff Arturo HernÃ¡ndez brings this action against Defendant 13 John Potter, United States Postmaster General, alleging violations of 14 the Rehabilitation Act of 1973 ( the Rehabilitation Act ), 29 U.S.C. 15 § 791, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, 16 and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1991a. 17 Docket No. 11. Plaintiff argues that Defendant failed to provide 18 reasonable accommodations for him and discriminated against him on 19 the basis of disability and sex. Id. Defendant moves for summary 20 judgment under Federal Rule of Civil Procedure 56(c). Docket Nos. 30, 21 31. Plaintiff opposes, Docket No. 38, and Defendant replies, Docket 22 No. 47. 23 I. 24 Factual and Procedural Synopsis Civil No. 06-1799 (JAF) 1 We derive the -2- following factual summary from Defendant s 2 statement of uncontested facts, as well as the parties motions and 3 exhibits.1 4 The Docket Nos. 31. 32, 38, 39, 40, 47. Federal Employees Compensation Act ( FECA ), 5 U.S.C. 5 §§ 8108-193, establishes a workers compensation program for federal 6 employees who suffer a disability resulting from an injury on the 7 job. Under this program, federal agencies must place employees in 8 their 9 recovered from compensable injuries. 5 U.S.C. § 8151. To comply with former the positions States equivalent have Rehabilitation 12 reassigns injured employees to rehabilitation positions. Rolland v. 13 Potter, 492 F.3d 45, 48 (1st Cir. 2007). injury ( USPS ) they 11 an Service once FECA, Program, Postal positions 10 1 United or compensation developed the program that Local Rule 56(c) requires that parties opposing summary judgment submit a statement admitting, denying or qualifying the moving party s statement of uncontested facts, with reference to each numbered paragraph. The opponent must support each denial or qualification with a citation to the record. Id. Plaintiff s statement of uncontested facts does not comply with the local rules. See Docket No. 38. Instead, he provides a list of the paragraph numbers of the disputed facts, without stating why he disputes these facts or providing citations to the record. See id. Therefore, we generally accept Defendant s statement of material facts as uncontested. See SÃ¡nchezFigueroa v. Banco Popular de P.R., 527 F.3d 209, 212 (1st Cir. 2008) (upholding district court s decision to accept defendant s statement of facts as uncontested where Plaintiff had failed to comply with local rules). However, where we are able to discern that Plaintiff has provided documentary evidence to support his allegations, we note these allegations as part of the record. Civil No. 06-1799 (JAF) -3- 1 Plaintiff is a resident of San Juan, Puerto Rico. He began 2 working as a letter carrier for the USPS in 1993. On August 17, 1994, 3 while making his deliveries, Plaintiff was robbed and assaulted. As 4 a result of the injuries he suffered in the assault, Plaintiff was 5 unable to return to full-time work until May 1998. At that point, 6 Plaintiff was placed in the Rehabilitation Program. As part of his 7 assignment 8 restrictions 9 indicated that Plaintiff was restricted from lifting even light 10 weights, reaching, pushing and pulling, and driving, other than 11 driving to and from work with proper precaution. See Docket No. 32-2, 12 Ex. A-D. to the were Rehabilitation documented by Program, an Plaintiff s evaluating medical physician, who 13 On April 17, 2000, Plaintiff was accepted into the Associate 14 Supervisor Program ( ASP ), a sixteen-week training program. On 15 August 23, 2000, the ASP graduates received their assignments. 16 Plaintiff was assigned to the Toa Alta Post Office, which is located 17 twenty-two 18 required a ninety-minute commute each way. Plaintiff later reported 19 that eight members of the ASP program received the assignments they 20 had requested, while nine members received assignments so far away 21 that some had to drive three hours to 22 Plaintiff 23 assignments changed to closer offices. miles claims from that Plaintiff s five of home, the and, Plaintiff claims, get to their stations. nine eventually got their Civil No. 06-1799 (JAF) 1 -4- On August 29, 2000, Plaintiff was reassigned to the Caguas Post 2 Office, which is less than nine miles from Plaintiff s home. 3 However, Plaintiff was unhappy with this assignment because it was 4 night shift, and he had trained to do customer service, which is only 5 available during the daytime. 6 On September 7, 2000, Plaintiff orally requested a reassignment 7 to the Cupey Post Office from Virginia MatÃas, an Operations Manager. 8 The Cupey office is located less than two miles from Plaintiff s 9 home. Plaintiff sought to switch with another employee who was 10 assigned to Cupey and was willing to trade positions. MatÃas 11 indicated that she could not give Plaintiff an answer immediately, 12 and that she had to check with management. Plaintiff claims that 13 during the conversation, MatÃas said that she could not believe he 14 had been accepted into the ASP program if he was a Rehabilitation 15 Program employee. MatÃas did not inform Plaintiff of the status of 16 his transfer request so, on September 11, 2000, Plaintiff reported to 17 the Carolina office instead of the Caguas office. 18 On September 15, 2000, Plaintiff wrote to George Ortiz, Manager 19 of Human Resources, seeking a transfer from the Caguas office to the 20 Cupey office. Docket No. 32-3, Ex. A-J. In the request, Plaintiff 21 stated as his reason for needing accommodation: I am presently under 22 the Department of Labor Office of Workers Compensation Program and Civil No. 06-1799 (JAF) -5- 1 associated with a person with a disability (down sindrome) [sic] 2 under my care. Id. This request was apparently denied. 3 On October 4, 2000, MatÃas sent Plaintiff an official letter of 4 warning in lieu of a seven-day suspension. Docket No. 32-3. Ex. A-H. 5 The letter stated that Plaintiff had failed to follow instructions 6 following his September 7 request for a transfer by failing to report 7 to the Caguas Station while waiting for the result of his request. 8 Id. 9 On October 7, 2000, Plaintiff was assigned to work a daytime 10 shift as customer services supervisor at the FernÃ¡ndez Juncos 11 Station. Docket No. 32-3, Ex. A-N. This office is approximately seven 12 and a half miles from Plaintiff s home. 13 At some point, Plaintiff applied for the position of Supervisor 14 of Customer Services at the Cupey station.2 On October 19, 2000, 15 Plaintiff s application was rejected. 16 On October 26, 2000, Plaintiff sent a letter to the USPS Injury 17 Compensation 18 accommodation. Docket No. 32-2, Ex. A-E. He explained that he needed 19 reassignment because of his status as a Rehabilitation Program 20 employee. Id. The letter did not provide any additional medical 21 information or documentation for the requested accommodation. Id. 2 Office in support of his request for reasonable We are unable to find Plaintiff s application in the record, as the exhibit number is missing. Civil No. 06-1799 (JAF) 1 -6- Plaintiff claims that at some point in October 2000, he spoke 2 with Evaristo GuzmÃ¡n, 3 Counselor for the USPS. Plaintiff told GuzmÃ¡n about the letter of 4 warning and his perception that management was trying to force him to 5 resign his supervisor position because of animus towards him as a 6 Rehabilitation 7 arranged a mediation to discuss these issues. The mediation was held 8 on December 19, 2000, but no agreement was reached. Program the Equal employee. Employment Plaintiff Opportunity claims that ( EEO ) GuzmÃ¡n 9 On November 16, 2000, a physician evaluated Plaintiff and 10 indicated that Plaintiff could drive to work but should avoid driving 11 for longer than thirty minutes at a time. Docket No. 39-14. 12 On December 11, 2000, Plaintiff wrote another letter to several 13 USPS managers requesting a decision in writing on his request for 14 accommodation. Docket No. 39-12, Ex. 9. This letter did not give any 15 additional medical reasons for the requested accommodation. Id. 16 On January 29, 2001, Plaintiff filed a complaint with the EEO 17 Compliance and Appeal Center requesting mediation relating to his 18 request for a medical accommodation. On March 13, 2001, GuzmÃ¡n sent 19 Plaintiff a letter denying Plaintiff s claim as untimely. Docket 20 No. 32-3, Ex. A-Q. The letter stated that it had been 118 days since 21 Plaintiff received the letter of warning, and Plaintiff was required 22 to contact the EEO office within forty-five days of the incident. 23 Id. The letter also stated that mediation would be inappropriate Civil No. 06-1799 (JAF) 1 because 2 officials in December 2000 with no result. Id. 3 Plaintiff had -7already had a mediation with management On March 23, 2001, Plaintiff filed a formal complaint with the 4 Equal 5 discrimination and failure to accommodate. Docket No. 32-3, Ex. A-R. 6 On May 19, 2006, Plaintiff received a final decision from the EEOC 7 denying his discrimination claims. 8 9 Employment Opportunity Commission ( EEOC ), alleging On August 17, 2006, Plaintiff filed the present complaint in federal district court, Docket No. 1, and on April 17, 2007, 10 Plaintiff filed an amended complaint, Docket No. 11. On August 11, 11 2008, Defendant moved for summary judgment. Docket Nos. 30, 31. 12 Plaintiff opposed on September 23, 2008, Docket No. 38, and Defendant 13 replied on October 1, 2008, Docket No. 47. 14 II. 15 Summary Judgment Standard under Rule 56(c) 16 We grant a motion for summary judgment if the pleadings, the 17 discovery and disclosure materials on file, and any affidavits show 18 that there is no genuine issue as to any material fact and the movant 19 is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 20 A factual dispute is genuine if it could be resolved in favor of 21 either party, and material if it potentially affects the outcome of 22 the case. Calero-Cerezo v. U.S. Dep t of Justice, 355 F.3d 6, 19 (1st 23 Cir. 2004). The moving party carries the burden of establishing that Civil No. 06-1799 (JAF) -8- 1 there is no genuine issue as to any material fact; however, the 2 burden may be discharged by showing that there is an absence of 3 evidence to support the nonmoving party s case. Celotex Corp. v. 4 Catrett, 5 components: (1) an initial burden of production, which shifts to the 6 nonmoving party if satisfied by the moving party; and (2) an ultimate 7 burden of persuasion, which always remains on the moving party. Id. 8 at 331. 477 U.S. 317, 325, 331 (1986). The burden has two 9 In evaluating a motion for summary judgment, we must view the 10 record in the light most favorable to the non-moving party. Adickes 11 v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, the non- 12 moving party may not rely merely on allegations or denials in its 13 own pleading; rather, its response must . . . set out specific facts 14 showing a genuine issue for trial. 15 III. 16 Analysis Fed. R. Civ. P. 56(e)(2). 17 Plaintiff alleges that Defendant violated the Rehabilitation Act 18 by failing to accommodate his disability and by discriminating 19 against him on the basis of both disability and sex. Docket No. 20 Defendants argue that we must grant summary judgment in their favor 21 because 22 (2) Plaintiff cannot establish a prima facie case of failure to 23 accommodate; (3) Plaintiff cannot establish a prima facie case of (1) Plaintiff s filing with the EEOC was 11. untimely; Civil No. 06-1799 (JAF) -9- 1 disability discrimination or sex discrimination; and (4) Plaintiff 2 cannot establish a prima facie case of retaliation. Docket No. 31. 3 We address these arguments in turn. 4 A. Timeliness of EEOC Filing 5 Defendant asserts that Plaintiff failed to timely file his 6 complaint with the EEOC because he did not contact an EEOC counselor 7 within forty-five days of the allegedly discriminatory conduct. 8 Docket No. 31. 9 counselor within the forty-five day period. Docket No. 38. Plaintiff asserts that he orally contacted the USPS 10 Exhaustion of administrative remedies is not required under the 11 Rehabilitation Act. Prescott v. Higgins, 538 F.3d 32, 44 (1st Cir. 12 2008) (citing Brennan v. King, 139 F.3d 258, 268 n.12 (1st Cir. 13 1998)). Therefore, we deny Defendant s motion for summary judgment 14 with respect to Plaintiff s Rehabilitation Act claims. 15 Title VII requires federal employees to exhaust administrative 16 remedies provided by their federal agency employer before bringing a 17 claim in district court. 42 U.S.C. § 2000e-16(c); Morales-Vallellanes 18 v. Potter, 339 F.3d 9, 18 (1st Cir. 2003); Bonilla v. Muebles J.J. 19 Ã lvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999). Employees must, 20 inter alia, contact an EEOC counselor within forty-five days of the 21 discriminatory conduct; however, this period may be extended if the 22 individual shows that he was not notified of or otherwise aware of Civil No. 06-1799 (JAF) -10- 1 the deadline. 29 C.F.R. § 1614.105(a); VelÃ¡zquez-Rivera v. Danzig, 2 234 F.3d 790, 794 (1st Cir. 2000). 3 Here, Plaintiff asserts that he was discriminated against when 4 (1) his September 15, 2000, request for a reasonable accommodation 5 was denied, and (2) he was issued a letter of warning on October 4, 6 2000. He asserts he brought these concerns to Evaristo GuzmÃ¡n, a USPS 7 dispute resolution manager, in October 2000. Docket No. 38; see 8 Docket No. 40-2, Ex. 6. 9 the right person to contact; rather, he contends that Plaintiff s 10 deposition testimony is self-serving and should not be credited. 11 Docket No. 47. However, Defendant has not offered any evidence to 12 contradict Plaintiff s allegations, such as an affidavit from GuzmÃ¡n 13 stating that Plaintiff never contacted him. See id. Accordingly, we 14 find that an issue of material fact remains with respect to whether 15 Plaintiff exhausted his Title VII claims. 16 B. Defendant does not argue that GuzmÃ¡n was not Failure to Accommodate 17 Plaintiff claims that Defendants failed to provide him with a 18 reasonable accommodation for his disability, in violation of the 19 Rehabilitation Act.3 3 Docket No. 11. Defendant argues that Plaintiff Plaintiff does not specify whether he intends to bring claims under Section 501 or Section 504 of the Rehabilitation Act. See Docket No. 11. Because Plaintiff is a federal employee, we analyze his claims under Section 501, which applies to federal departments and agencies. See Bradley v. England, 502 F. Supp. 2d 259, 266-67 (D.R.I. 2007) (noting a circuit split over whether federal employees may seek relief under both Sections, and determining that they may Civil No. 06-1799 (JAF) -11- 1 cannot establish his failure to accommodate claim because, inter 2 alia, Plaintiff s request for accommodation was not clear or specific 3 enough 4 Rehabilitation Act. Docket No. 31. 5 to Like trigger the Defendant s Americans with duty to accommodate Disabilities Act under the ( ADA ), the 6 Rehabilitation Act both prohibits disparate treatment of disabled 7 individuals and imposes an affirmative duty on employers to offer 8 reasonable accommodations to disabled employees. 29 U.S.C. § 791; 9 Enica v. Principi, 544 F.3d 328, 337-38 (1st Cir. 2008) (citing 10 Calero-Cerezo v. U.S. Dep t of Justice, 355 F.3d 6, 19-20 (1st Cir. 11 2004)). To establish a claim for failure to accommodate under the 12 Rehabilitation Act, a plaintiff must show that (1) he suffers from a 13 disability within the meaning of the statute, (2) he could perform 14 the essential functions of his job with reasonable accommodations, 15 and (3) despite its knowledge of his disability, his employer did not 16 offer a him reasonable accommodation. Enica, 544 F.3d at 338. 17 An individual is disabled under the Rehabilitation Act if he has 18 a physical or mental impairment that substantially limits one or 19 more major life activities, has a record of such impairment, or is 20 regarded 21 (referencing 42 U.S.C. § 12102). To show that an employer has failed 22 to provide a reasonable accommodation, a plaintiff must show that the as having such impairment. only bring claims under Section 501). 29 U.S.C. § 705(20)(B) Civil No. 06-1799 (JAF) -12- 1 proposed accommodation is reasonable, that is, that it would have 2 enabled him to perform the job and would have been feasible for the 3 employer. 4 his request was sufficiently direct and specific and explained how 5 the accommodation was linked to the disability. Id.; see Estades- 6 Negroni v. Assocs. Corp. of N. Am., 377 F.3d 58, 64 (1st Cir. 2004) 7 (requiring ADA request to be express and linked to a disability). 8 9 Enica, 544 F.3d at 328. The plaintiff also must show that We direct our attention to the third prong, whether Defendant knew of Plaintiff s disability yet failed to accommodate him. 10 Plaintiff claims that Defendant failed to accommodate him by refusing 11 to transfer him from the Caguas Post Office to the Cupey Station, 12 which was substantially closer to his home. Plaintiff s September 15, 13 2000, request for a reassignment to the Cupey station states as a 14 reason for his request: I am presently under the Department of Labor 15 Office of Workers Compensation Program and associated with a person 16 with a disability (down sindrome) [sic] under my care. Docket 17 No. 32-3, Ex. A-J. He does not explain what his disability is, other 18 than that he is covered under the USPS Rehabilitation Program. None 19 of 20 information about the nature of Plaintiff s disability, nor did 21 Plaintiff ever communicate his doctor s finding that he could not 22 drive longer than thirty minutes at a time. See Docket No. 32-2, 23 Ex. A-E Docket No. 39-12, Ex. 9. Plaintiff s request does not provide the later documents submitted by Plaintiff provide more Civil No. 06-1799 (JAF) -13- 1 enough information to give Defendant notice of Plaintiff s disability 2 and his need for accommodation. See Rolland v. Potter, 492 F.3d 45, 3 48-49 4 Rehabilitation Program alone does not establish that a person is 5 disabled for purposes of the Rehabilitation Act). We find Plaintiff s 6 request insufficient to trigger Defendant s duty to accommodate under 7 the Rehabilitation Act. See Estades-Negroni, 377 F.3d at 64. 8 C. (1st Cir. 2007) (holding that eligibility for the USPS Discrimination 9 Plaintiff argues that he was discriminated against both because 10 of his sex and because he is disabled. Docket No. 11. Defendant 11 argues that Plaintiff has failed to establish a prima facie case of 12 either kind of discrimination. Docket No. 31. 13 In evaluating an employment discrimination case alleging 14 disparate treatment, we follow the three-step process outlined in 15 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Clifford v. 16 Barnhart, 449 F.3d 276, 280 (1st Cir. 2006). First, the plaintiff 17 must establish a prima facie case of discrimination; next, the 18 defendant 19 nondiscriminatory reason for the employment decision; and finally, 20 the plaintiff has the burden of demonstrating that the defendant s 21 asserted reason is mere pretext for discrimination. Id. To establish 22 a prima facie case of discrimination, a plaintiff must show that he 23 belonged has to a the burden protected of class, presenting that he a legitimate, performed his job Civil No. 06-1799 (JAF) -14- 1 satisfactorily, and that he suffered an adverse employment action 2 under circumstances giving rise to an inference of discriminatory 3 intent. RÃos JimÃ©nez v. Principi, 520 F.3d 31, 40-41 (1st Cir. 2008); 4 see SÃ¡nchez v. P.R. Oil Co., 37 F.3d 712, 719 (1st Cir. 1994). 5 In the instant case, Plaintiff has failed to raise an inference 6 that he was discriminated against, either on the basis of disability 7 or sex. First, nine members of Plaintiff s ASP program received 8 assignments so far away that some had to drive three hours to get to 9 their stations, and only five of the nine eventually got their 10 assignments changed to closer offices. The haphazard assignment 11 process indicates poor management, perhaps, but Plaintiff has not 12 demonstrated any link between his job assignment and his disability. 13 Plaintiff urges us to find that Defendant harbored discriminatory 14 animus against Plaintiff because MatÃas said that she could not 15 believe Plaintiff had been accepted into the ASP program if he was a 16 Rehabilitation Program employee. However, this statement is at worst 17 a stray remark, which is insufficient to create an inference of 18 discriminatory intent. See Laurin v. Providence Hosp., 150 F.3d 52, 19 58 (1st Cir. 1998) (holding that stray remarks, including statements 20 by decisionmakers unrelated to the decision process itself, are 21 normally insufficient to establish discriminatory animus). 22 23 Next, Plaintiff claims that he was the victim of sex discrimination, but provides no evidence to support this claim. In Civil No. 06-1799 (JAF) 1 fact, 2 preferential treatment in their assignments, which undercuts his 3 argument that he suffered discrimination on the basis of his sex. 4 Because Plaintiff has failed to establish a prima facie case of 5 discrimination on the basis of disability or sex, we need not go on 6 the second and third steps in the McDonnell Douglas analysis. 7 8 he asserts that -15both male and female coworkers received Accordingly, we grant Defendant s motion for summary judgment with respect to Plaintiff s discrimination claims. 9 IV. 10 Conclusion 11 For the reasons stated herein, we GRANT Defendant s motion for 12 summary judgment, Docket No. 30, and DISMISS Plaintiff s claims, in 13 their entirety, WITH PREJUDICE. 14 IT IS SO ORDERED. 15 San Juan, Puerto Rico, this 11th day of March, 2009. 16 17 18 s/JosÃ© Antonio FustÃ© JOSE ANTONIO FUSTE Chief U.S. District Judge

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