Canales v. Potter, Civil No. 06-1701 (DRD).

Citation614 F.Supp.2d 213
Decision Date13 April 2009
Docket NumberCivil No. 06-1701 (DRD).
PartiesJosefina CANALES, Plaintiff, v. John E. POTTER, Postmaster General, Defendant.
CourtUnited States District Courts. 1st Circuit. District of Puerto Rico

Bamily Lopez-Ortiz, Lopez Toro, Law and Notary Offices, San Juan, PR, for Plaintiff.

Fidel A. Sevillano-Del-Rio, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Defendant.

AMENDED OPINION AND ORDER NUNC PRO TUNC

DANIEL R. DOMINGUEZ, District Judge.

Pending before the Court is Defendant's Motion for Summary Judgment and Memorandum of Law (Docket Nos. 23 & 34), and Plaintiff's Response to in Opposition to Defendant's Motion for Summary Judgment (Docket Nos. 48). On October 31, 2008, said motions were referred to Magistrate Judge Camille Velez-Rive (Docket No. 36). Consequently, on January 28, 2009, Magistrate Judge Velez-Rive, entered a Report and Recommendation (Docket No. 51). The Magistrate Judge recommended that Defendants' Motion for Summary Judgment be DENIED.

I. STANDARD OF REVIEW

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); FED. R.Civ.P. 72(b); Rule 72(a), Local Rules, District of Puerto Rico. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). An adversely affected party may contest the Magistrate's report and recommendation by filing its objections within ten (10) days after being served a copy thereof. See Local Rule 72(d); FED.R.CIV.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1) (1993), in pertinent part, provides that:

Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

(Emphasis ours).

"Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate's recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, "failure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objections are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir., 1992); see also Sands v. Ridefilm Corp., 212 F.3d 657, 663 (1st Cir.2000); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that "[o]bjection to a magistrate's report preserves only those objections that are specified"); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir., 1987) (holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised"); see also United States v. Valencia, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).

If no objections are filed against the Magistrate Judge's Report and Recommendation, the Court, in order to accept the unopposed R & R, needs only satisfy itself by ascertaining that there is no "plain error" on the face of the record. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir., 1996)(en banc)(extending the deferential "plain error" standard of review to the unobjected legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir., 1982)(en banc)(appeal from district court's acceptance of unobjected findings of magistrate judge reviewed for "plain error"); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R., 2001)("Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous")(adopting the Advisory Committee note regarding FED.R.CIV.P. 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa., 1990)("when no objections are filed, the district court need only review the record for plain error").

In the instant case objections were timely filed, hence our standard of review is de novo as to those portions objected. 28 U.S.C. 636(b)(1).

II. ANALYSIS

In the instant case, Defendant has timely filed objects to the Magistrate Judges's Report and Recommendation. After carefully reviewing de novo the instant case's record and pending motions although the Court agrees and adopts the Magistrate Judge's analysis of the facts of case, as well as the Magistrate's discussion of Plaintiff's retaliation claim, see e.g. Docket No. 51, pgs. 18-25, and Defendant's proposed reasons for the alleged adverse employment action, see Id., at pgs. 25-28, the Court does not reach the same ultimate conclusions. Consequently, the Court shall adopt in part the Magistrate's Report and Recommendation (Docket No. 51), as supplemented herein.

The Court finds that Defendant's motion for summary judgment is to be granted. The Court explains.

After reviewing the pending motions as well as the report and recommendation, it is pellucid to the Court that the only issue of material fact that Plaintiff alleges is in controversy and therefore precludes the Court from granting summary judgment is the fact that Plaintiff was not permitted to return to work until March 2006, after requesting to be reinstated several times on August 81, August 22 and September 7, 2005. See Docket No. 48, pg. 5.

Plaintiff contends that Defendant's nonacquiesce of her request to be reinstated in her position, but conditioned not to be under the supervision of Carlos Perez or in the same office as him, was in retaliation for Plaintiff having filed an EEOC complaint on June 8, 2005. See Id., pgs. 5-6; see also Docket No. 26, ¶ 16; Docket No. 48-2, ¶ 1. Defendants understand that under the conditional return, Plaintiff could not be considered medically cleared to return to work. See Docket No. 26, ¶ 17; see also Docket No. 48-2, ¶ 1. Furthermore, Plaintiff avers that notwithstanding the fact that on January 30, 2006, she was cleared to return to work by Mr. Echevarria since her attending psychiatrist excluded the Carlos Perez reference from her medical certificate, she was not allowed to return to work for two additional months, that is until March 13, 2006.2 See Docket No. 48, pg. 7; see also Docket No. 26, ¶¶ 19-20. In essence, Plaintiff avers that in regards to the alleged "adverse employment action," considering Defendant's reiterated denial to reinstate Plaintiff, the pertinent question is whether it was reasonable for Defendant to condition Plaintiffs return to work on the removal of Carlos Perez' reference (that she was fit to work but not under the supervision of or in the same office as Carlos Perez) on her medical certificate, in order for Plaintiff to found "fit for duty." See Docket No. 48, pg. 8.

After carefully reviewing Plaintiff's contentions, the Court finds that there are no issues of material fact precluding the Court from entertaining this case summarily. In other words, the Court finds that it is uncontroverted that Plaintiff was not allowed to work until she brought a new medical certificate stating that she was "fit for work" without any conditions. In other words, without the condition that she could not work under the supervision of Carlos Perez or in an office with him.

To establish a prima facie case of retaliation, a plaintiff must show that she (1) engaged in a protected conduct; (2) suffered an adverse employment action; and (3) that the adverse employment action was causally connected to the protected conduct. Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.2005)(citing Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir. 2003)); Ramirez Rodriguez v. Boehringer Ingelheim Pharmaceuticals, Inc., 425 F.3d 67, 84 (1st Cir.2005) (citing Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir.1991)). Once a plaintiff satisfies the elements of the prima facie case of retaliation, the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for the adverse employment action. Ramirez Rodriguez, 425 F.3d at 84; Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 95 (1st Cir.2006). The ultimate burden of persuasion, however, remains with the plaintiff and she must show that the employer's nondiscriminatory reason is a pretext for retaliatory discrimination. Id.

To successfully establish a retaliation claim, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, `which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)(quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (C.A.D.C.2006)). Retaliation claims are "not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 64, 126 S.Ct. 2405. "The alleged retaliatory action must be material, producing a significant, not trivial, harm." Carmona-Rivera v. Commonwealth of Puerto Rico, 464 F.3d 14, 19 (1st Cir.2006). "`Context matters,' and `the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the [discrimination] complaint.'" Id. (citing Burlington Northern, 548 U.S. at 69-70, 126 S.Ct. 2405). The First Circuit has held that "adverse employment...

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    ...2405) ("The alleged retaliatory action must be material, producing a significant, not trivial, harm."), quoted in Canales v. Potter, 614 F.Supp.2d 213, 218 (1st Cir.2009). Furthermore, "[d]etermining whether an action is materially adverse necessarily requires a case-by-case inquiry. Moreov......
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