JOSÉ ANTONIO FUSTÉ, Chief Judge.
Plaintiff alleges gender discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-16(a), and discrimination on the basis of a perceived disability, in violation of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 791-796.
On June 26, 2006, Plaintiff transferred from longtime employment by the U.S. Department of Justice ("DOJ") in Washington, D.C., to work as an Assistant U.S.
One of the benefits discussed during Plaintiff's hiring was a schooling benefit offered to personnel the USAO recruited from the continental United States. (See Docket No. 36-21 at 5-7, 56-62.) In order to attract such personnel to Puerto Rico, the USAO offered to pay for schooling the recruited party's children at the Antilles school located on Fort Buchanan, a U.S. military base in Puerto Rico.
In accordance with the discontinuation of the program, the Milaneses were not offered the Antilles benefit. (Docket Nos. 36-21 at 24-25, 63-64; 36-28 at 20.) Plaintiff wanted to enroll his children there, however, and asked whether it was possible to do so if he paid for it out of pocket. (See, e.g., Docket No. 36-28 at 20-22.) The USAO inquired and found that only the USAO itself could pay the bill for the schooling; it, therefore, offered to do so and to subtract that amount from Plaintiff's
Sometime before the start of the 2006 school year, Antilles program recipient AUSA Nathan Schulte ("Schulte") resigned his position at the USAO. (See Docket No. 44-2 at 1-2.) The Milaneses meanwhile had learned that the spot that had been reserved for their younger son at a private school was no longer available. (Docket Nos. 36-21 at 19-21, 33; 36-28 at 34.) The Milaneses approached Rodríguez with their situation, requesting that the USAO allow their younger son, who had a learning disability, to take one of two spots vacated by Schulte's departure. (Docket Nos. 36-21 at 19-21, 33; 36-28 at 34.) In addition, in order to keep their children together, they asked that their other son be allowed to take the remaining Schulte spot. (Docket Nos. 36-21 at 19-21, 33; 36-28 at 34.) Rodríguez agreed, with express warning that they were granted the benefit for only one year and due solely to the extenuating circumstances. (Docket Nos. 36-21 at 19-21, 33; 36-28 at 34.) Plaintiff acknowledged those conditions. (Docket No. 36-9 at 21.) At the end of that school year, in July 2007, Plaintiff requested that the benefit be extended, and Rodríguez refused, citing budgetary constraints. (Docket No. 9 at 20-23.) Approximately six months later, Plaintiff again requested the benefit, a request that Ginette Milanés expressly opposed, and again was denied. (See id.; Docket No. 36-20 at 35-36.)
During his longtime employment with the federal government, Plaintiff had consistently received exemplary performance reviews. (See, e.g., Docket No. 39-18 at 1-18.) After transferring to Puerto Rico, however, he began having problems with supervising attorneys.
The following week, on February 5, Plaintiff emailed Ruiz to request a transfer out of the narcotics unit, citing Mercado's "confrontational management style" and Plaintiff's mental health as reasons for the request. (Id. at 25; see also Docket No. 36-24 at 3-4.) Ruiz responded that, out of an abundance of caution, he was construing Plaintiff's request as a request for reasonable accommodation under the Rehabilitation Act. (Docket No. 36-22 at 26.) He solicited Plaintiff's correction if that was not the case and notified Plaintiff that in order to receive the accommodation, Plaintiff would have to submit medical evidence of his disabling condition. (Id.) Plaintiff never responded to clarify whether he was requesting a reasonable accommodation or to submit medical evidence as to a disabling condition. (Id. at 2-3.) Ruiz subsequently denied Plaintiff's transfer request, asking Plaintiff to stay in narcotics until something opened in another unit. (Id. at 3-4.) Plaintiff acknowledged that his request was poorly timed because two other attorneys had just transferred
On February 16, 2007, Mercado sent Plaintiff a written admonishment for his conduct during the February 2 meeting and for his conduct on February 6, when he left work premises during a staff meeting without notifying a supervisor, in contravention of office policy.
On June 26, 2007, the USAO transferred Plaintiff within the criminal division, from the narcotics to the immigration unit. (Docket No. 39-19 at 2.) In immigration, Ruiz was Plaintiff's direct supervisor.
By late 2007, Plaintiff and Ginette Milanés had decided to divorce and were handling the details of their separation. This sparked various episodes of conflict on their work premises, when on several occasions Plaintiff visited Ginette Milanés' office area and engaged in loud confrontations. (See Docket No. 36-17 at 30.) Plaintiff repeated such visits despite Ruiz's explicit instructions not to, and despite his warning that disobeying those instructions could result in disciplinary action. (Id.)
On December 3, 2007, the USAO became involved in a domestic incident between the Milaneses. Rodríguez testifies that Ginette Milanés called her that evening seeking assistance. (Docket No. 36-21 at 38.) Plaintiff and Ginette Milanés had been living apart, but that evening, Plaintiff returned to their joint residence, where Ginette Milanés was staying with their children. (See Docket Nos. 36-20 at 13; 39-19 at 3.) An argument erupted, and Ginette Milanés attempted to contact the Puerto Rico police to help mediate the dispute. (Docket No. 36-21 at 38.) Unable to obtain assistance from the police because she only spoke English, she called Rodríguez to ask whether Rodríguez could contact someone on her behalf. (Id. at 38-39.) In response, Rodríguez called a Federal Bureau of Investigation ("FBI") agent whom she thought might have contacts with the Puerto Rico police. (Id. at 39.) She also enlisted the help of Ruiz, asking him to contact Plaintiff and persuade him
In response, Ruiz called Plaintiff, who eventually left the residence. (Docket No. 36-20 at 34.) Meanwhile, the FBI contact was unable to secure assistance from the Puerto Rico police without a formal order, so the FBI sent its own agent to the Milanés residence to ensure the safety of its occupants. (Docket No. 39-9; see also Docket No. 39-19 at 3.) Plaintiff viewed this intervention as "an attempt to pressure [him] from pursuing [his] legal rights as a parent," and, the following day, he filed a complaint against Rodríguez with, inter alia, the director of the Executive Office for U.S. Attorneys ("EOUSA"). (Docket No. 39-10.) Plaintiff also independently contacted the FBI General Counsel's Office, via letter on the USAO's formal letterhead, requesting information about the FBI's role in the intervention. (Docket No. 36-17 at 25-26.) Based on information he received, Plaintiff visited the office of FBI Special Agent in Charge Luis Fraticelli ("Fraticelli") to express his displeasure with the FBI's involvement at his residence. (Docket Nos. 36-17 at 4; 36-21 at 41-42.) Fraticelli had Plaintiff escorted from his office and called Rodríguez to complain about Plaintiff's behavior. (Docket Nos. 36-17 at 4; 36-21 at 41-42.)
In light of this incident, Ruiz referred Plaintiff to the EOUSA Employee Assistance Program, suggesting he seek help with his marital problems. (See Docket No. 36-22 at 17.) Nevertheless, the problems continued. On April 2, 2008, Plaintiff learned that Ruiz was preparing a formal reprimand for Plaintiff's continued failure to heed Ruiz's instructions not to visit Ginette Milanés' work area. (Docket Nos. 36-18; 36-24 at 49.) Plaintiff asked Ruiz to reconsider issuing the reprimand, taking into account that although Plaintiff had again visited Ginette Milanés' work area, he had done so at her request. (Docket No. 36-24 at 49.) Ginette Milanés testified that she had never requested Plaintiff's visit, and further testified that Plaintiff, facing Ruiz's reprimand, had intimated that she falsely tell Ruiz that she had so requested. (See Docket No. 36-17 at 27-29.) Ruiz, unable to corroborate Plaintiff's explanation, issued the reprimand on April 3. (Docket No. 36-24 at 50.) Plaintiff, in Ruiz's office at the time, responded angrily at the issuance of the reprimand, threatening the USAO with bad publicity and judicial action.
In the face of these and other incidents,
On May 2, 2008, EOUSA Assistant Director Paul Suddes issued Plaintiff a letter proposing Plaintiff's removal from the USAO. (Docket No. 36-17.) In preparing a response to the proposal, Plaintiff requested various documents in the USAO's possession. (See Docket Nos. 36-7 at 4; 36-10 at 19-23; 36-12; 36-13.) His request for the documents was denied.
We must grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A factual dispute is "genuine" if it could be resolved in favor of either party and "material" if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004).
The movant carries the burden of establishing that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant may satisfy this burden by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations,... or other materials." Fed. R.Civ.P. 56(c)(1)(A). Furthermore, to establish the absence of a genuine dispute of material fact, the movant need not produce evidence but may instead point to a lack of evidence supporting the nonmovant's case. See Fed.R.Civ.P. 56(c)(1)(B); see also Celotex, 477 U.S. at 325, 106 S.Ct. 2548. "Once the moving party has made a preliminary showing that no genuine [dispute] of material fact exists, the nonmovant must produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy [dispute]." Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.2006) (internal quotation marks omitted); see also Fed.R.Civ.P. 56(c)(1).
Plaintiff alleges that Defendants violated Title VII and the Rehabilitation Act with the actions described above in Part I. Specifically, Plaintiff alleges (1) both disparate treatment and disparate impact theories of gender discrimination, in violation of Title VII; (2) disparate treatment on the basis of a perceived mental disability, in violation of the Rehabilitation Act; and (3) retaliation for protected activity, in violation of both Title VII and the Rehabilitation Act. (Docket No. 1.) He further maintains that each intentional discrimination and retaliation claim can be proven by discrete incidents, by Defendants' creation of a hostile work environment, and by his alleged constructive discharge. (Id.) Defendants argue that they are entitled to summary judgment on each of these claims, due in part to Plaintiff's inability to show either disparate impact or discriminatory or retaliatory animus.
To prove a claim of disparate impact, a plaintiff must (1) identify the challenged employment practice or policy and pinpoint the employer's use of it; (2) demonstrate a disparate impact on a group characteristic that falls within the protective ambit of Title VII; and (3) demonstrate a causal relationship between the identified practice and the disparate impact. EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 601 (1st Cir.1995), cert. denied, 516 U.S. 814, 116 S.Ct. 65, 133 L.Ed.2d 27 (1995). Generally, plaintiffs submit statistical proof to demonstrate a disparate impact on a group characteristic. See id. at 606; see also Bramble v. Am. Postal Workers Union, 135 F.3d 21, 26 (1st Cir.1998) ("Statistics ... are commonly a basic component of a disparate impact claim.").
Although Plaintiff characterizes the USAO's application of the Antilles benefit as intentional gender discrimination, describing it as a benefit Rodríguez bestowed on members of a special "Girls Club" — her female friends — to the exclusion of all who did not fit that category,
To support this claim, Plaintiff relies on evidence that only female employees ultimately
When considering a motion for summary judgment on a Title VII claim, we may "dispense with strict attention to the [Title VII] burden-shifting framework, focusing instead on whether the evidence as a whole is sufficient to make out a jury question as to pretext and discriminatory animus." Gómez-González v. Rural Opportunities, Inc., 626 F.3d 654, 662 (1st Cir.2010) (quoting Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996)). "Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence...." Id. (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997)). Even if a plaintiff demonstrates pretext, however, the Title VII claim will not survive summary judgment unless the plaintiff also creates a genuine dispute of material fact as to whether "the real reason for the employer's actions was discriminatory animus based on a protected category." Mariani-Colón v. Dep't of Homeland Sec., 511 F.3d 216, 223 (1st Cir.2007).
As proof of discriminatory animus is likewise required under the ADA, see Torres-Negrón v. Merck & Co., Inc., 488 F.3d 34, 43 (1st Cir.2007), and proof of retaliatory animus is required under the retaliation provisions of both Title VII and the ADA, see Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir.2010) (Title VII); Vera v. McHugh, 622 F.3d 17, 32-33 (1st Cir.2010) (ADA), we approach this section's entire analysis under Gómez-González, searching the record for a jury question as to pretext or some prohibited animus.
The facts of this case show that Plaintiff suffered various adverse employment actions.
In the absence of direct evidence of gender-based discriminatory animus, Plaintiff relies on circumstantial evidence,
To support this claim, Plaintiff relies heavily on the differential application of the Antilles benefit as between him and Western. (See Docket No. 39 at 4-7.) There is, however, insufficient similarity in the positions occupied by Plaintiff and Western when their eligibility for the benefit was considered. As noted above, Western was transferred from the continental United States in 1998, and the Antilles benefit was presented to her as a term of her employment. She was then granted the benefit in March 2006, the cutoff date for enrollment prior to discontinuation of the benefit. By contrast, as outlined above, both Plaintiff and Ginette Milanés — a female — were denied the benefit at the outset of their employment with the USAO, which began after March 2006. The Western comparison, therefore, lacks probative value as circumstantial evidence of gender-based decisionmaking, especially in light of the USAO's consistent denial of the Antilles benefit after March 2006 to previously-eligible employees of both genders.
We find similarly lacking in probative value Plaintiff's demonstration of the USAO's differential treatment of him and Ginette Milanés. He points out, for example, that (1) Ginette Milanés was not reprimanded for leaving her office during working hours, when he was;
In view of the foregoing, and in the absence of other evidence of discriminatory animus based on gender, we find that Plaintiff's gender discrimination claim cannot survive summary judgment.
Plaintiff's claim that disability discrimination motivated Defendants' actions has even less evidentiary support. (See Docket Nos. 39 at 9; 39-1 at 5-6.) The only record evidence regarding perceived disability is the exchange between Ruiz and Plaintiff in which Plaintiff requested a transfer from the narcotics unit due in part to his mental problems. See supra Part I.B. As explained above, Ruiz was unable to grant the transfer as a reasonable accommodation under the Rehabilitation Act because Plaintiff never submitted evidence of a disability
To prove a claim of retaliation under Title VII a plaintiff must establish: (1) plaintiff's protected participation or opposition; (2) a materially-adverse employment action that harmed the plaintiff inside or outside the workplace and that was harmful enough to "dissuade a reasonable worker from making or supporting a charge of discrimination"; and (3) the adverse action taken was causally linked to the plaintiff's protected activity. Mariani-Colón, 511 F.3d at 223; see also Vera, 622 F.3d at 32-33 (requiring same elements to prove retaliation under ADA).
As with his discrimination claims, Plaintiff falls short in demonstrating a causal link between his protected activity and Defendants' adverse actions. He points to several instances of protected activity, including his request for a reasonable accommodation under the Rehabilitation Act when he asked to be transferred out of the narcotics unit, a December 2007 email to Domínguez suggesting that he was denied the Antilles benefit because of his gender, and his EEOC complaint.
Based on our detailed review of the extensive documentary evidence filed with Defendants' motion and Plaintiff's reply, we view this as a clear case of employee misconduct that overwhelmingly justified the employer's adverse actions. We find no viable claim of disparate impact, and we find that, on this record, no reasonable juror could find plausible Plaintiff's attempt to construe Defendants' actions as motivated by discriminatory or retaliatory animus.
For the foregoing reasons, we hereby
