Abril-Rivera v. Johnson

• Decision Date: 30 July 2015
• Docket Number: No. 14–1316.,14–1316.
• Citation: 795 F.3d 245
• Parties: Francisco ABRIL–RIVERA, et al., Plaintiffs, Appellants, and Madeline Aguayo, et al., Plaintiffs, v. Jeh JOHNSON, Secretary of the Department of Homeland Security; United States Department of Homeland Security; Federal Emergency Management Agency, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

795 F.3d 245

Francisco ABRIL–RIVERA, et al., Plaintiffs, AppellantsandMadeline Aguayo, et al., Plaintiffs

v.Jeh JOHNSON, Secretary of the Department of Homeland Security; United States Department of Homeland Security; Federal Emergency Management Agency, Defendants, Appellees.

No. 14–1316.

United States Court of Appeals, First Circuit.

July 30, 2015.

Adriana G. Sánchez–Parés, with whom ´Alvaro R. Calderón, Jr., Francisco J. Ortiz–García, and Álvaro R. Calderón, Jr. L.L.P. Law Office were on brief, for appellants.

Adam C. Jed, Appellate Staff Attorney, with whom Joyce R. Branda, Acting Assistant Attorney General, Rosa E. Rodriguez–Velez, United States Attorney, and Marleigh D. Dover, Appellate Staff Attorney, were on brief, for appellees.

Before TORRUELLA, LYNCH, and THOMPSON, Circuit Judges.

Opinion

LYNCH, Circuit Judge.

The Federal Emergency Management Agency (FEMA) is an agency within the Department of Homeland Security (DHS) tasked with assisting “State and local governments in carrying out their responsibilities to alleviate the suffering and damage that result from major disasters and emergencies by,” among other things, “[p]roviding Federal assistance programs for public and private losses and needs sustained in disasters.” 44 C.F.R. § 206.3 ; see also 42 U.S.C. § 5174(a)(1) ; Exec. Order No. 12673, 54 Fed.Reg. 12,571 (Mar. 23, 1989). Pursuant to this mission, FEMA has established call centers, which primarily receive calls from those affected by disasters, and National Processing Service Centers (NPSCs), which both receive calls and process claims.

Plaintiffs were employees of the now-closed Puerto Rico NPSC (PR–NPSC) run by FEMA. They filed this Title VII lawsuit alleging that FEMA's actions in implementing a rotational staffing plan at the PR–NPSC and in eventually closing the facility discriminated against them on the basis of their Puerto Rican national origin and constituted unlawful retaliation for protected conduct. The district court granted summary judgment to defendants, finding that defendants had legitimate, nondiscriminatory reasons for their actions and, with respect to the rotational staffing plan retaliation claim, that plaintiffs had not shown a causal link between their protected conduct and the purported retaliation.

We affirm the dismissal of the case. We hold that plaintiffs' disparate impact claims fail for two reasons. First, under our caselaw, claims of different treatment based on location absent a claim of intentional discrimination do not establish liability under 42 U.S.C. § 2000e–2(h). Plaintiffs here have expressly disavowed any claim of intentional discrimination. Second, the challenged actions were job-related and consistent with business necessity, and plaintiffs have not shown that there were alternatives available to FEMA that would have had less disparate impact and served FEMA's legitimate needs. Both retaliation claims fail because plaintiffs have not shown that the allegedly adverse employment actions were causally related to any protected conduct.

I. Background

We recite the facts in the light most favorable to plaintiffs. See Ramírez–Lluveras v. Rivera–Merced, 759 F.3d 10, 13 (1st Cir.2014). In 1995, FEMA established a “temporary call center” in San Juan, Puerto Rico to address calls from Spanish-speaking victims of Hurricane Marilyn. The call center was located in a vacant manufacturing plant in Puerto Rico under a disaster lease and was originally designed to be only a temporary facility. Because the center “was never intended ... to serve as a longterm NPSC operation,” it “did not have many of the amenities that the agency would normally seek when establishing a long-term, fixed site facility.”

In 1998, the center began processing claims as well as receiving calls, and in 2003 it became the fourth full-fledged NPSC (the three others are in Maryland, Texas, and Virginia). The PR–NPSC was the only fully bilingual NPSC. FEMA made some limited improvements to the Puerto Rico facility when it became a NPSC, but it still lacked the “state of the art furniture and equipment” found in the other NPSCs.

In 2006, several groups of PR–NPSC employees complained to management that they were being paid less than their mainland counterparts. When no resolution was reached in their cases, plaintiffs filed with the Equal Employment Opportunity (EEO) Office an informal complaint of discrimination in October 2006 and a formal complaint of discrimination in April 2007. In May 2007, an employee filed with the EEO a class complaint on behalf of one group of employees. The class complaint was dismissed in 2008.¹

In June 2007, FEMA's Occupational, Safety & Health Office conducted a Management Evaluation and Technical Assistance Review (METAR) of the PR–NPSC facility.² The METAR disclosed several “serious deficiencies,” including, for example, a lack of exit signs at several locations in the facility and the absence of “[i]nitial safety orientation training.” Several of the deficiencies were rated as “[s]ignificant risk[s] to health and safety” for which “abatement measures should be initiated within 30 days.” The management of the Puerto Rico center responded with a memorandum acknowledging receipt of the report and explaining the steps that the PR–NPSC had taken and would take to begin to rectify the deficiencies. By May 2008, management represented that it had addressed the major issues identified on the METAR save one: the construction of an egress route around the building.³ Management was still concerned about the physical facility and particularly fire hazards.

PR–NPSC management arranged for a more specific Fire Protection and Life Safety Code review of the facility in May 2008. This review was arranged to address fire safety issues identified in the 2007 METAR in advance of the expiration of the facility's lease in September 2008. That inspector found several problems and produced an extensive “List of Safety & Health Items to be Completed for Facility to Become Fully Acceptable.” To name just a few examples, the building did not have an automatic fire sprinkler, working fire alarms, or a sufficient number of exits. The inspector also noted that the roof of the facility could not withstand a Category 3 storm.

On May 16, 2008, Kathy Fields, the Branch Chief for NPSC Operations, notified the employees of the PR–NPSC that, “[b]ecause the safety and security of our employees is our top priority, it is necessary to suspend operations at the PR-NPSC until the identified fire and life safety deficiencies are corrected.” FEMA placed its employees on administrative leave and continued paying them until July 18, 2008. The facility was not occupied from May 16, 2008, to mid-July 2008. It later resumed operations, with a limited staff.

In light of these ongoing concerns, FEMA “determined that the cost of repairing and/or relocating the facility necessitated a critical review.” Fields began considering the option of closing the PR–NPSC upon expiration of the lease. As explained in a May 19, 2008, e-mail:

[Fields'] main rationale for closure is that the Agency no longer requires the large Spanish-language capacity it is carrying at the NPSC's. Also, the overall need for personnel at the NPSC's has lessened. Further, to the extent Spanish-language NPSC employees are needed, this can probably be accommodated at the other NPSC's in Texas, Maryland and Virginia. Lastly, the lease for the Puerto Rico NPSC is about to expire—so that's why she's thinking through these issues now....

The last big Puerto Rico disaster requiring a large capacity of Spanish-language employees in the NPSC's was Hurricane Georges in 1998.

Since that time the need for Spanish-language personnel at the NPSC's has been steadily declining. Essentially, the Agency has been carrying a large Spanish-language capacity at the NPSC's for some time at a level that's greater than needed.

Fields circulated a report outlining her recommendations and her reasoning to several senior FEMA officials on May 23, 2008, as to short-term and longer-term options.⁴ The report explained that the immediate repairs necessary to temporarily reoccupy the building until the end of the lease would cost $75,000, while the longer-term repairs necessary to permanently reoccupy the building would cost $525,000. These estimates did not include the cost of a new roof, which the report noted was also needed.

However, the lease on the facility would expire at the end of September 2008, unless temporarily extended. As it was, FEMA occupied the facility until February 2009. A new facility would have cost FEMA nearly $9 million up front and would have had an annual operating cost of approximately $19 million. The report concluded that, because the remainder of the NPSC system had the capacity to absorb the PR–NPSC's workload, these potential expenses were not justified, and it was preferable to simply let the facility's lease expire and not build a new facility. The report also included a list of options for addressing the PR–NPSC's deficiencies that had been considered and rejected.

David Garratt, FEMA's Deputy Assistant Administrator, the principal recipient of the report, responded to Fields that he “agree[d] with the recommendation and supporting logic.” He stated that he would forward the report to FEMA's Deputy Administrator.

On July 15, 2008, Fields sent a memorandum to all PR–NPSC employees explaining that, based on FEMA's review of the inspection results, FEMA had decided in the short term “to continue making repairs to the facility and,” while that was done, “to resume operations with a reduced staff sufficient to ensure readiness in the event disaster activity warrants increased staffing levels.” The memorandum announced a new staffing plan, which involved having approximately 15–20 employees (out of a total of around 300) work at a time, on a rotational basis. This rotational staffing plan, Fields explained, was “expected to continue through the end of calendar year 20...