Romero-Perez v. United States Department of Justice, Federal Bureau of Prisons et al, No. 3:2010cv01441 - Document 30 (D.P.R. 2011)
Court Description: OPINION AND ORDER. GRANTED 16 MOTION for Summary Judgment filed by United States Department of Justice, Federal Bureau of Prisons. Signed by Judge Salvador E Casellas on 4/28/2011.(LB)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 5 6 7 8 9 SANDRA HAYDEE ROMERO PEREZ Plaintiff Civil No. 10-1441 (SEC) v. U.S. DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF PRISONS, et al. Defendant 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 OPINION AND ORDER Pending before this Court is Defendants United States Department of Justice and Federal Bureau of Prisons ( BOP ) (collectively Defendants ) Motion for Summary Judgment (Dockets ## 16 & 17), and Plaintiff Sandra Haydee Romero-Perez s ( Plaintiff ) opposition thereto (Dockets ## 20 & 28). After reviewing the filings, and the applicable law, Defendants motion for summary judgment is GRANTED. Procedural Background On May 21, 2010, Plaintiff filed the present suit against Defendant and Lt. Daniel Rivera ( Rivera ) under Title VII, alleging sexual harassment at the workplace. In the complaint, Plaintiff, a correctional counselor at the Metropolitan Detention Center, Guaynabo, Puerto Rico ( MDC Guaynabo ), alleges that she was sexually harassed by Rivera. On December 7, 2010, Defendants moved for summary judgment, and Plaintiff timely opposed. On April 11, 2011, default was entered against Rivera for failure to answer or otherwise plead. Docket # 26. 1 Civil No. 10-1441 (SEC) 2 2 Standard of Review 3 F ED. R. C IV. P. 56 4 The Court may grant a motion for summary judgment when the pleadings, depositions, 5 answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 6 there is no genuine issue as to any material fact and that the moving party is entitled to judgment 7 as a matter of law. F ED.R.C IV.P. 56(c); See also Anderson v. Liberty Lobby, Inc., 477 U.S. 8 242, 248(1986); RamÃrez RodrÃguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1st Cir. 2005). 9 In reaching such a determination, the Court may not weigh the evidence. Casas Office Machs., 10 Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court examines 11 the record in the light most favorable to the nonmovant, and indulges all reasonable 12 inferences in that party s favor. Maldonado-Denis v. Castillo-RodrÃguez, 23 F.3d 576, 581 (1st 13 Cir. 1994). 14 Once the movant has averred that there is an absence of evidence to support the 15 nonmoving party s case, the burden shifts to the nonmovant to establish the existence of at least 16 one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 17 (1st Cir. 1990) (citations omitted). A factual issue is genuine if it may reasonably be 18 resolved in favor of either party and, therefore, requires the finder of fact to make a choice 19 between the parties differing versions of the truth at trial. DePoutout v. Raffaelly, 424 F.3d 20 112, 116 (1st Cir. 2005)(quoting Garside, 895 F.2d at 48 (1st Cir. 1990)); see also SEC v. 21 Ficken, 546 F.3d 45, 51 (1st Cir. 2008). 22 In order to defeat summary judgment, the opposing party may not rest on conclusory 23 allegations, improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 24 407 F.3d 11, 15 (1st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 25 5, 8 (1st Cir. 1990). Nor will effusive rhetoric and optimistic surmise suffice to establish 26 a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997). Once 1 Civil No. 10-1441 (SEC) 2 the party moving for summary judgment has established an absence of material facts in dispute, 3 and that he or she is entitled to judgment as a matter of law, the party opposing summary 4 judgment must present definite, competent evidence to rebut the motion. Méndez-Laboy v. 5 Abbot Lab., 424 F.3d 35, 37 (1st Cir. 2005) (quoting from Maldonado-Denis v. Castillo 6 RodrÃguez, 23 F.3d 576, 581 (1st Cir. 1994). The non-movant must produce specific facts, 7 in suitable evidentiary form sufficient to limn a trial-worthy issue. . . .Failure to do so allows 8 the summary judgment engine to operate at full throttle. Id.; see also Kelly v. United States, 9 924 F.2d 355, 358 (1st Cir. 1991) (warning that the decision to sit idly by and allow the 10 summary judgment proponent to configure the record is likely to prove fraught with 11 consequence ); Medina-Muñoz, 896 F.2d at 8 (quoting Mack v. Great Atl. & Pac. Tea Co., 871 12 F.2d 179, 181 (1st Cir. 1989)) (holding that [t]he evidence illustrating the factual controversy 13 cannot be conjectural or problematic; it must have substance in the sense that it limns differing 14 versions of the truth which a factfinder must resolve. ). 3 15 Applicable Law and Analysis 16 The relevant uncontested facts are as follows. Plaintiff is an employee at the BOP since 17 November 23, 1993. SUF ¶ 7. She currently serves as a Correctional Counselor at the MDC 18 Guaynabo. Id. When she started her employment at the BOP, Plaintiff was provided with the 19 Standards of Employee Conduct; the Acknowledgment of Receipt was signed by Plaintiff on 20 April 18, 2007. Id. at 8. The BOP has adopted, disseminated, enforced, and taught a 21 comprehensive Sexual Harassment prevention policy. Id. at 34. Moreover, the Agency s 22 Discrimination and Retaliation Complaints Processing policy in effect at the time strictly forbids 23 retaliation. Id. Additionally, both Plaintiff and Rivera attended yearly Correctional Training 24 Annual-BOP trainings which emphasize the process to report sexual harassment. Id. at 35. Also, 25 the Agency s Standards of Employee Conduct, P.S. 3420.09, of which Plaintiff was aware, 26 mandates reporting sexual harassment. Id. at 36. 1 Civil No. 10-1441 (SEC) 4 2 On May 19, 2009, Plaintiff filed a Formal Grievance with the BOP. Id. at 1.1 According 3 to Plaintiff, on said date, at approximately 7:30 a.m., she entered Housing Unit 3-C and 4 observed Rivera sitting in the officer s station which she utilizes as a work station. Id. at 9. 5 Plaintiff alleges that when she entered the office to store her purse, Rivera was sitting with his 6 legs spread open. Id. Plaintiff further avers that Rivera had his left hand on his upper thigh, his 7 right hand was rubbing his crotch area, and he asked her What s wrong, you don t like this? 8 Id. She contends that she responded by stating this is going to end, you are not going to do this 9 anymore. Id. Plaintiff explained that such statement meant that she was going to report his 10 conduct to her supervisor, Unit Manager Angel L. Morales, Jr. and to the Union President, Jorge 11 L. Rivera. Id. Although Plaintiff alleges that witnesses were present, she indicated she does not 12 know whether they witnessed her interactions with Rivera. Id. 13 Plaintiff further alleged that on May 16, 2009, she passed Rivera in the 3-C Housing Unit 14 and Rivera s arm brushed her shoulder. Id. at 10. She indicated that she did not believe Rivera s 15 brushing of her shoulder was an assault on her person, but asserts that his actions were an 16 attempt to sexually harass her. Id. Plaintiff admits she did not report this alleged incident to any 17 management official, her supervisor, or other staff member. Id. 18 Based on Plaintiff s allegations, the Agency responded by convening and conducting a 19 Threat Assessment, and referring the matter to the Office of Internal Affairs in Washington, 20 D.C. for investigation. Id. at 11. In a sworn statement provided to the Internal Affairs 21 investigator, Rivera indicated that on May 19, 2009, he was seated in the Officer s Station in 22 Unit 3-C reviewing and signing log books when Plaintiff entered to store her purse. Id. at 12. 23 24 25 26 1 Local Rule 56(b) provides that a motion for summary judgment be supported by a statement of facts, set forth in numbered paragraphs, and supported by record citations as required by Local Rule 56(e). Defendants did not provide a record citation for the second to fifth sentence of their statement of fact. Accordingly, said information is disregarded for purposes of the present motion. 1 Civil No. 10-1441 (SEC) 2 Rivera indicated that, when Plaintiff placed her purse in the desk, she stated these inmate 3 bitches, seem like they hear through their pussies. Id. According to Rivera, he told Plaintiff 4 that she should be professional and he could not believe the words coming out of her mouth, and 5 Plaintiff responded by stating: Deal with that. Id. Rivera indicated that he did not interact 6 with Plaintiff for the remainder of his shift that day. Id. at 13. Another employee who was at that 7 location was not close enough to hear the conversation between Rivera and Plaintiff. Id.2 He 8 denied ever making any sexually explicit comments or gestures towards Plaintiff, including 9 placing his hands on her or rubbing his crotch, and stated that he has always acted in a 10 5 professional manner. Id. 11 Pursuant to Rivera s statement, on May 16, 2009, he was assigned to the morning shift 12 as Activities Lieutenant from 6:00 a.m. to 2:30 p.m. Id. at 15. He stated that that, at 13 approximately 8:45 a.m., he was exiting Housing Unit 3-C when he noticed Plaintiff entered the 14 Unit with her purse. Id. Rivera indicated that he went to the Lieutenant s Office to check the 15 Unit Roster, which revealed Plaintiff was scheduled to work from 7:00 a.m. to 3:30 p.m. Id. He 16 then sent an e-mail to Unit Manager Angel Morales, Plaintiff s supervisor, informing him about 17 the time when Plaintiff arrived at work. Id. 18 According to Rivera, on May 20, 2009, prior to conducting the Threat Assessment, he 19 asked Morales whether he had informed Plaintiff about his e-mail reporting the time of her 20 arrival on May 16, 2009. Id. at 15. Morales told Rivera that he had told Plaintiff about Rivera s 21 e-mail. Id. As a result, Rivera believed Plaintiff was retaliating against him for reporting her 22 tardiness. Id. He offered to take a polygraph examination. Id. 23 24 25 26 2 Although Defendants proffer that Rivera indicated that Unit Officer Edgardo Velázquez was in the office, but did not hear the Plaintiff s comments due to his distance of some 40 feet, such information is not supported by the accompanying statement. As such, it must be disregarded when ruling on the present motion. 1 Civil No. 10-1441 (SEC) 6 2 Based on Rivera s affidavit, the OIA Investigator conducted a follow-up interview with 3 Plaintiff on August 28, 2009. Id. at 16. In her follow-up interview, Plaintiff alleges that, on May 4 16, 2009, she first encountered Rivera while entering the sallyport of the housing unit. Id. 5 Plaintiff indicated that, on that same date, she exited the unit and did not return until 10:00 a.m., 6 when she encountered Rivera sitting at the desk with his legs wide open rubbing his crotch area. 7 Id. In contrast, in her first Affidavit, Plaintiff s only allegation regarding Rivera s conduct on 8 May 16 was the allegation that he brushed her shoulder with his arm. Id. In fact, Plaintiff 9 alleged Rivera sat with his legs open and rubbed his crotch on May 19, 2009, but not on May 10 16, 2009. Id. 11 Additionally, in her follow-up interview, Plaintiff for the very first time indicated that 12 in February 2009, she was in the elevator when Rivera pressed his chest and crotch area against 13 her abdomen area. Id. at 17. Plaintiff indicated that she asked Rivera to keep his distance. Id. 14 According to Plaintiff, there were three staff members on the elevator, but the only staff 15 member she could identify was Disciplinary Hearing Officer, Juan Segarra-Bassat. Id. Plaintiff 16 asserted that when she exited the elevator on this date, she reported Rivera s conduct to her 17 supervisor Morales, and that Morales telephoned Rivera and instructed him to leave Plaintiff 18 alone or he would face serious repercussions. Id. She indicated that she had no additional 19 conduct to report as it related to Rivera. Id. She also denied the use of profanity in the presence 20 of Rivera, and making statements to the effect that these inmates bitches, seem like they hear 21 through their pussies. Id. Plaintiff declined to take a polygraph examination. Id. 22 In his follow-up affidavit, Rivera indicated that he did not recall ever having any contact 23 with Plaintiff in an elevator in February 2009, and that he never had any physical contact with 24 Plaintiff, nor had he ever pressed, touched, or rubbed his chest or crotch area against her. Id. 25 at 18. He did recall, however, an incident in May 2008, when Plaintiff told him Tú no sirves, 26 in the presence of an inmate, as he entered an elevator. Id. Rivera indicated that he did not 1 Civil No. 10-1441 (SEC) 2 respond to Plaintiff since an inmate was present. Id. He indicates that he spoke with Morales, 3 Plaintiff s supervisor, about her comments and indicated he felt disrespected by Plaintiff. Id. 4 Moreover, Rivera admitted he saw Plaintiff on May 16, 2009, but denied that he brushed against 5 her, or having any contact with her. Id. Lastly, Rivera indicated that after he departed from the 6 3-C Housing Unit at 8:45 a.m. on May 16, 2009, he did not return to the unit on that day, as 7 stated by Plaintiff, nor did he see her for the remainder of that day. Id. 7 8 The Warden at MDC Guaynabo at the time, Anthony Haynes, received the memorandum 9 from Associate Warden Jeffrey Foster, regarding the alleged harassment, he convened a Threat 10 Assessment, and took steps to ensure that Plaintiff and Rivera were placed on separate shifts. 11 Id. at 20.3 Warden Haynes indicated that on May 19, 2009, the Union President approached him 12 with a formal grievance related to alleged incidents of harassment. Id. at 19 & 21. According 13 to Haynes, he informed Rivera that he was going to convene a Threat Assessment, issue a Cease 14 and Desist order, and refer the matter to the Office of Internal Affairs. Id. Warden Haynes 15 further attested that, at that time, the Union President wanted him to sign the complaint; 16 however, Haynes informed the Union President that he had not received information from the 17 Threat Assessment Team and it would be prudent to wait until the Threat Assessment Report 18 was submitted prior to attempting resolution. Id. Haynes indicated there were no attempts by 19 the Union President to informally resolve the matter. Id. 20 On May 19 and 20, 2009, respectively, Plaintiff and Rivera were issued referrals to the 21 Agency s Employee Assistance Program. Id. at 22. On May 20, 2009, a Threat Assessment 22 23 24 25 26 3 Warden Haynes first learned of Plaintiff s allegations of sexual harassment against Rivera on May 19, 2009, when he was approached by Foster, who indicated that he received a report from Plaintiff stating that she was being harassed by Rivera. Id. Warden Haynes indicated that he instructed Foster to acquire a memorandum from Plaintiff. Id. 1 Civil No. 10-1441 (SEC) 2 Team was convened. Id.4 On May 27, 2009, a Cease and Desist letter was issued, informing 3 Rivera that, based on Plaintiff s allegations of harassment, he had to make every effort to avoid 4 being in her presence whenever possible. Id. at 23. He was further instructed to avoid engaging 5 in any conversation with Plaintiff unless it was related to their duties, and if he was engaging 6 in any inappropriate behavior, he should cease and desist from the same. Id. 8 7 On May 28, 2009, Plaintiff submitted a memorandum to the Warden requesting a change 8 in her shift, in order to comply with the Agency s Cease and Desist Orders. Id. at 24. The 9 Warden instructed Associate Warden Foster to determine a schedule that would be best for 10 Plaintiff in order to facilitate her request, who noted Plaintiff would be working 2:30 to 10:30 11 p.m., with the same days off (Sunday and Monday), until the case at the Office of Internal 12 Affairs was completed. Id. 13 In a Memorandum dated June 20, 2009, the Union representing Plaintiff invoked 14 arbitration. Id. at 2. On July 8, 2009, the Federal Mediation and Conciliation Service contacted 15 the parties and submitted a list of arbitrators to the parties. 16 parties and witnesses convened for the arbitration proceedings. Id. at 4. Pursuant to the 17 Arbitrator s preliminary statements, the arbitration was designed to address a number of issues, 18 including the preliminary issue of arbitrability, issues regarding discovery, testimony on the 19 merits of the case and, if necessary, damages. Id. The first issue the arbitrator heard was related 20 to the issue of arbitrability, and both parties examined and cross examined witnesses regarding Id. at 3. On April 8, 2010, the 21 22 23 24 25 26 4 The Threat Assessment Team consisted of Associate Warden Foster, Javier Matos, Attorney, Mr. Carlos Merced, Union Representative, Morales, Unit Manager, Edgardo Serrano, Captain, and Deanna R. Roerick, Employee Services Manager. Id. Defendants proffer that the Threat Assessment Team concluded there appeared to be no evidence to substantiate workplace violence of a sexual nature, that the matter should be referred to the Office of Internal Affairs for further investigation, and that Cease and Desist letters should be issued. They fail to provide specific record citations in the 15-page document submitted in support thereof. As such, said proposed fact is not properly supported by the record. 1 Civil No. 10-1441 (SEC) 2 this matter. Id. At the close of this portion of the testimony Mendoza Toro, who represented 3 Plaintiff in the matter, asked for a recess in order to confer with her client. Id. Upon returning 4 to the hearing room, Mendoza Toro indicated that her client (Plaintiff) wished to withdraw her 5 grievance. Id. at 5.5 The Arbitrator confirmed Mendoza Toro s request and inquired as to any 6 objections regarding withdrawal of the grievance; there were no such objections and the matter 7 was adjourned. Id. at 6.6 8 Applicable Law and Analysis 9 9 Exhaustion of administrative remedies 10 The First Circuit has recognized that exhaustion of administrative remedies is absolutely 11 required if explicitly mandated by Congress. Portela-Gonzalez v. Sec y of the Navy, 109 F.3d 12 74, 77 (1st Cir. 1997) (citing McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (superseded on 13 other grounds)). When Congress has remained silent on this issue, however, courts have more 14 latitude in dealing with exhaustion questions. Id. Title VII requires an employee to file an 15 administrative charge as a prerequisite to commencing a civil action for employment 16 discrimination. See 42 U.S.C. § 2000e-5(f). The exhaustion of administrative remedies, 17 however, is not a jurisdictional prerequisite to filing a Title VII claim in federal court. Vera v. 18 McHugh, 622 F.3d 17, 30 (1st Cir. 2010)(citing Federique-Alexandre v. Dep't of Nat'l & Envtl. 19 20 5 21 22 23 24 25 26 When opposing Defendants motion, Plaintiff failed to note that a party s denial or qualification of a proposed fact must be strictly limited to the issue therein raised. Plaintiff, instead, submitted additional facts unrelated to Defendants proposed averment of fact. Local Rule 56(c), requires that, if a nonmoving party includes any additional facts when opposing a motion for summary judgment, such facts must be in a separate section, set forth in separate numbered paragraphs, and supported by a specific record citation. The First Circuit has repeatedly held that when the parties ignore the Local Rules, they do so at their peril. See Ruiz-Rivera v. Riley, 209 F. 3d 24, 28 (1st Cir. 2000). Therefore, any additional facts provided by Plaintiff when denying or qualifying Defendant s SUF must be disregarded by this Court. 6 See footnote 2. 1 Civil No. 10-1441 (SEC) 2 Res., 478 F.3d 433, 440 (1st Cir. 2007). As such, it is subject to equitable defenses. Fernandez 3 v. Chertoff, 471 F.3d 45, 58 (2d Cir. 2006). Specifically, exhaustion is not required where the 4 administrative remedy is inadequate because the agency lacks the authority to provide the type 5 of relief requested, such as when the agency lacks institutional competence to resolve the 6 particular type of issue presented, i.e., the constitutionality of a statute. Portela-Gonzalez, 109 7 F.3d at 77 (citing McCarthy, 503 U.S. at 146-48); see also Chertoff, 471 F.3d at 58. A court 8 may also consider relaxing the rule when unreasonable or indefinite delay threatens to unduly 9 prejudice the subsequent bringing of a judicial action; when the situation is such that a 10 particular plaintiff may suffer irreparable harm if unable to secure immediate judicial 11 consideration of his claim; or if the potential decisionmaker is biased or can be shown to 12 have predetermined the issue, rendering agency proceedings futile. Portela-Gonzalez, 109 F.3d 13 at 77 (citing McCarthy, 503 U.S. at 147-48). 10 14 Despite the foregoing, in a Title VII case, a plaintiff s unexcused failure to exhaust 15 administrative remedies effectively bars the courthouse door. Colon v. Mills, 646 F. Supp. 2d 16 224, 234 (D.P.R. 2009) (citing Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005)). That is, 17 the plaintiff must adequately show why exhaustion should be waived. The First Circuit has 18 noted that [a] pessimistic prediction or a hunch that further administrative proceedings will 19 prove unproductive is not enough to sidetrack the exhaustion rule. Portela-Gonzalez, 109 F.3d 20 at 78. In order to properly claim futility, a plaintiff must show that all reasonable possibilities 21 of adequate administrative relief have been effectively foreclosed, in other words, that it is 22 certain that their claim will be denied on appeal, not merely that they doubt an appeal will result 23 in a different decision. Id. at 78-79 (citing Smith v. Blue Cross & Blue Shield United, 959 F.2d 24 655, 659 (7th Cir. 1992)). 25 The record clearly shows that Plaintiff raised her claims of discrimination under the 26 negotiated grievance procedure, and on June 20, 2009, the Union invoked arbitration on her 1 Civil No. 10-1441 (SEC) 2 behalf. See SUF ¶ 3. Federal law and EEOC regulations set forth special rules for discrimination 3 claims brought by federal employees covered by collective bargaining agreements. Frasure v. 4 Principi, 367 F. Supp. 2d 245, 252-253 (D. Conn. 2005) (citing Wright v. Snow, No. 02-7615, 5 slip op. at 4 (S.D.N.Y. Aug. 25, 2004)). Under the Federal Labor Management Relations Act, 6 a federal employee may raise claims of discrimination under a negotiated grievance procedure 7 or in a Title VII complaint, but not both. Id. (citing 5 U.S.C. § 7121(d)); see also Vinieratos v. 8 Dep t of Air Force, 939 F.2d 762, 768 (9th Cir. 1991); Sierra-Perez v. USA, 779 F. Supp. 637, 9 643 (D.P.R. 1991). Once the employee chooses either route, she must then exhaust that 10 administrative remedy before pursuing her claim in court. Principi, 367 F. Supp. 2d at 253. 11 This choice between the statutory scheme or the negotiated grievance process is an irrevocable 12 one. Id.; see also Vinieratos, 939 F.2d at 768. In this case, Plaintiff elected to pursue a union 13 grievance procedure when she timely filed a grievance in writing in accordance with the 14 negotiated grievance procedure. See 5 U.S.C. § 7121(d). As a matter of fact, on April 8, 2010, 15 the parties convened for arbitration proceedings, and a hearing was held regarding the issue of 16 arbitrability, during which the parties examined and cross examined witnesses. See SUF ¶ 4. On 17 that date, nevertheless, Plaintiff informed the arbitrator that she wished to withdraw her 18 grievance. Id. Thus she abandoned the grievance procedure at its early stages. 11 19 In her memorandum in opposition to Defendants motion, Plaintiff argues that she 20 voluntarily withdrew her grievance procedure because the BOP was obstructing and delaying 21 the process, the process was burdensome and prejudicial, and the litany of appeals would have 22 taken years to exhaust. Docket # 20, p. 9. She does not, however, provide a statement of 23 additional facts to support the arguments therein set forth, such as Rivera s alleged history of 24 harassing conduct, the BOP s alleged obstruction of the grievance proceedings or the alleged 25 effects such actions had on her health and work conditions. 26 1 Civil No. 10-1441 (SEC) 12 2 As previously explained, a plaintiff must demonstrate why exhaustion should be waived, 3 and [a] pessimistic prediction or a hunch that further administrative proceedings will prove 4 unproductive is not enough to sidetrack the exhaustion rule. Portela-Gonzalez, 109 F.3d at 78. 5 More so when the allegations are not properly supported by evidence. This is further 6 compounded by the fact that the record shows that the administrative process was underway and 7 Plaintiff abandoned the same during the first step of the arbitration proceedings. In McKart v. 8 United States, 395 U.S. 185, 193 (1969), the Supreme Court explained that one of the primary 9 purposes of the exhaustion doctrine is the avoidance of premature interruption of the 10 administrative process. Consequently, allowing a party to seek judicial recourse without first 11 exhausting her administrative remedies weakens agency autonomy and contravenes judicial 12 efficiency. See Portela-Gonzalez, 109 F.3d at 80. Accordingly, this Court finds that there is no 13 indication that full exhaustion would have caused undue prejudice, irreparable harm, or unusual 14 hardship of any sort to Plaintiff. Therefore, we find that Plaintiff failed to exhaust administrative 15 remedies, and is precluded from filing the present suit. 16 Claims against Rivera 17 This Court notes that the First Circuit recently affirmed that there is no individual 18 employee liability under Title VII. Fatini v. Salem State College, 557 F.3d 22, 30 (1st Cir. Feb. 19 23, 2009); see also Acosta v. Harbor Holdings & Operations, Inc., 674 F. Supp. 2d 351, 373 20 (D.P.R. 2009). Therefore, Title VII addresses the conduct of employers only and does not 21 impose liability on co-workers ¦. Fantini, 557 F.3d at 31 (citing Powell v. Yellow Book 22 U.S.A., Inc., 445 F. 3d 1074, 1079 (8th Cir. 2006). Accordingly, Plaintiff s claims against 23 Rivera are DISMISSED with prejudice. 24 25 26 1 Civil No. 10-1441 (SEC) 13 2 Conclusion 3 For the reasons stated above, Defendants motion for summary judgment is GRANTED. 4 Plaintiff s claims against Defendants are DISMISSED without prejudice.7 Her claims against 5 Rivera are DISMISSED with prejudice. 6 IT IS SO ORDERED. 7 San Juan, Puerto Rico, this 28 th day of April, 2011. 8 S/Salvador E. Casellas Salvador E. Casellas U.S. Senior District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7 In the majority of cases dismissal for failure to exhaust will be without prejudice and not an adjudication on the merits. Velazquez v. Davila, No. 08-1131, slip op. at 23 (D.P.R. Feb. 20, 2009) (citing Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275 (1st Cir. 1999); Deniz v. Municipality of Guaynabo, 285 F.3d 142 (1st Cir. 2002). The Supreme Court s decision in Costello v. United States, 365 U.S. 265, 285-88 (1961), confirmed that dismissal for failure to satisfy a precondition to suit should not bar a subsequent suit in which the defect has been cured. See Pisnoy v. Ahmed, 499 F.3d 47, 61 (1st Cir. 2007) (citing Lebron-Rios v. U.S. Marshal Serv., 341 F.3d 7, 13 (1st Cir. 2003) (dismissal of suit for failure to exhaust administrative remedies would not preclude later suit if plaintiffs exhausted remedies).
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