Arce v. Potter

• Decision Date: 28 July 2011
• Docket Number: Civil No. 10–1032 (FAB).
• Citation: 818 F.Supp.2d 402,43 NDLR P 183
• Parties: Virtudes ARCE, Plaintiff, v. John E. POTTER, Postmaster General, Defendant.
• Court: U.S. District Court — District of Puerto Rico

43 NDLR P 183

818 F.Supp.2d 402

Virtudes ARCE, Plaintiff,

v.John E. POTTER, Postmaster General, Defendant.

Civil No. 10–1032 (FAB).

United States District Court, D. Puerto Rico.

July 28, 2011.

Julie A. Soderlund, San Juan, PR, for Plaintiff.

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

OPINION AND ORDER ¹

BESOSA, District Judge.

Plaintiff Virtudes Arce (“Arce” or “plaintiff”) brings this action against Postmaster General John E. Potter (“defendant”) pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq., alleging intentional discrimination, hostile work environment, and retaliation. (Docket No. 1.)

Pending before the Court is defendant Potter's motion for summary judgment. (Docket Nos. 35 & 37.) For the reasons set forth below, defendant's motion for summary judgment is GRANTED.

I. Procedural History

On January 20, 2010, plaintiff Arce filed a complaint alleging intentional discrimination, hostile work environment, and retaliation pursuant to Title VII and the Rehabilitation Act. (Docket No. 1.) On May 20, 2011, defendant Potter answered the complaint, subsequently filing a motion to dismiss the complaint partially for lack of subject matter jurisdiction on October 27, 2010. (Docket Nos. 8 & 23.) The Court referred the motion to Magistrate Judge Justo Arenas, who issued a report recommending that the motion to dismiss be denied. The Court adopted the recommendation in full on June 22, 2011, 2011 WL 2469831. (Docket Nos. 12, 31 and 50.)

On May 4, 2011, defendant Potter filed a motion for summary judgment, which plaintiff opposed on May 27, 2011 (Docket Nos. 35–37 & 46.) On June 8, 2011, defendant Potter replied to plaintiff's opposition to the summary judgment motion. (Docket No. 49.) Defendant Potter moves for summary judgment on the grounds that Ms. Arce failed to establish her claims of (1) disability discrimination; (2) retaliation; and (3) hostile work environment.

II. Statement of Uncontested Facts

Plaintiff Arce is a resident of Puerto Rico and has been an employee with the United States Postal Service (“USPS”) since 1986, having worked at the Bayamon Branch since 1989 as a distribution clerk. (Docket No. 36 at ¶ 5; Docket No. 49 at ¶ 1.) She has been hearing impaired since childhood and communicates primarily though sign language, gestures, and in writing. (Docket No. 46–1 at ¶ 11, 12, 13, 14; Docket No. 49 at 3.) Pursuant to an EEO complaint filed in 2003 and a settlement agreement in 2005, the United States Postal Service (USPS) is obligated to provide Ms. Arce with interpreter services, a Text Telephone (TTY), and placement within sight of emergency lights. (Docket No. 23–1; Docket No. 36 at ¶¶ 8–9, 14; Docket No. 46–1 at ¶¶ 17, 27.) She works six hours daily as a part-time distribution clerk, handling certified mail and is not scheme-or window-qualified. (Docket No. 36 at ¶¶ 8, 10, 26; Docket No. 36–4 at 2, ¶ 5.)

Brenda Rios (“Rios”) worked at the Bayamon Branch as a customer service supervisor from August 2008 through February 2009. (Docket No. 36 at ¶ 7; Docket No. 46–1 at ¶ 31; Docket No. 36–4 at ¶ 2.) During this period, Jorge Colon (“Colon”) served as the branch manager. (Docket No. 46–1 at ¶ 35; Docket No 49 at 4; Docket No. 36–8 at ¶ 2.) Colon and Rios never held themselves out to be Ms. Arce's direct supervisors. (Docket No. 36–4 at ¶ 2; Docket No. 36–8 at ¶ 2.) Aside from the services provided for Ms. Arce's hearing impairment, Colon and Rios were unaware of any additional accommodations needed by her because plaintiff never submitted medical documentation requesting accommodations. (Docket No. 36 at ¶ 18; Docket No. 36–4 at 7–8, ¶ 13.)

Defendant Potter, though, was aware of a shoulder condition which Ms. Arce had, and had asked her to desist when she performed certain activities that caused her pain. (Docket No. 36 at ¶ 23; Docket No. 46–1 at ¶ 43.) Although plaintiff was not granted light duty because of her cervical and shoulder bursitis, she was only permitted to handle certified mail. (Docket No. 36 at ¶ 18.) A change in Ms. Arce's work schedule had also been approved, but due to her poor attendance policy, she had difficulty complying with the adjusted schedule. (Docket No. 36 at ¶ 15–16; Docket No. 46–1 at ¶ 37; Docket No. 36–4 at 6, ¶ 11; Docket No. 36–5 at 7, ¶ 12.) Despite her “impairment or deafness,” however, Ms. Arce was able to perform her job during the relevant period at the USPS. (Docket No. 46–1 at ¶ 15; Docket No. 49 at 3.)

Plaintiff Arce predicates her claims on a series of interactions with Rios and situations arising at work. In September, 2008, the work policy was amended only to permit a few senior schemers to work holidays; plaintiff continued to rely, however, on past procedures used by the USPS. (Docket No. 36 at ¶ 12; Docket No. 46–1 at ¶¶ 22–23.) Despite not being asked, Ms. Arce appeared to work on Labor Day, 2008. (Docket No. 36 at ¶ 21; Docket No. 46–1 at ¶ 23; Docket No. 36–4 at 4, ¶ 8.) Rios confronted Arce because she had appeared to work without being asked; after a belligerent exchange, Arce left the premises to avoid police involvement. (Docket No. 36 at ¶ 20; Docket No. 46–1 at ¶ 23.) She states that after this incident, the working environment around her changed and she noticed that coworkers and supervisors began to ignore her. (Docket No. 46–1 at ¶ 26; Docket No. 46–3 at 3, ¶ 3(d).)

Plaintiff Arce also did not receive Voluntary Early Retirement (“VERA”) documents in time to apply for it. (Docket No. 36 at ¶ 13; Docket No. 46–1 at ¶ 5.) Additionally, plaintiff complains that she was not provided computer training or permitted to park in certain parking spots due to the limited number of spaces available. (Docket No. 36 at ¶ 17, 19; Docket No. 36–4 at 7, ¶ 12, at 8 ¶ 14; Docket No. 46–1 at ¶ 58.) Also, plaintiff Arce was not always provided with interpreter services because the USPS only paid for those services roughly on a bi-monthly basis. (Docket No. 36 at ¶ 14; Docket No. 36–6 at ¶ 10; Docket No. 36–9; Docket No. 46–1 at ¶ 20.)

On March 9, 2009, plaintiff filed an EEO complaint against Rios, Colon, and Grace Rodriguez (“Rodriguez”), alleging that she suffered disability discrimination, retaliation, and a hostile work environment in 2008. (Docket No. 36 at ¶ 3; Docket No. 46–1 at ¶ 1; Docket No. 36–1.) On April 24, 2009, the USPS began investigating Arce's claims that she was (1) denied holiday work, (2) not offered VERA, (3) denied accommodation of work location and interpreter, (4) charged leave without pay (“LWOP”) and sick leave, (5) denied training, (6) required to obtain a medical evaluation, (7) denied parking, and (8) mistreated and verbally abused by her supervisor. (Docket No. 36 at ¶ 6; Docket No. 46–1 at ¶ 1; Docket No. 36–3.) On October 20, 2009, the EEOC dismissed her complaint, determining that Ms. Arce failed to establish that she was subjected to discrimination and/or retaliation, but notified plaintiff of her right to pursue a civil cause of action. (Docket No. 36 at ¶ 4; Docket No. 46–1 at ¶ 1; Docket No. 36–2.) Ms. Arce then brought this action against defendant Potter for discriminatory treatment, retaliation, and hostile work environment. (Docket No. 46–1 at ¶ 2; Docket No. 1 at 1.1.)

III. Summary Judgment Standard

The court's discretion to grant summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 states, in pertinent part, that the court may grant summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); See also Santiago–Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52. (1st Cir.2000).

Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” See Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once a properly supported motion has been presented, the opposing party has the burden of demonstrating that a trial-worthy issue exists that would warrant the court's denial of the motion for summary judgment. For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int'l., Inc., 229 F.3d 49 (1st Cir.2000).

In order for a factual controversy to prevent summary judgment, the contested facts must be “material” and the dispute must be “genuine”. “Material” means that a contested fact has the potential to change the outcome of the suit under governing law. The issue is “genuine” when a reasonable jury could return a verdict for the nonmoving party based on the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is well settled that “[t]he mere existence of a scintilla of evidence” is insufficient to “defeat a properly supported motion for summary judgment.” Id. at 252, 106 S.Ct. 2505. It is therefore necessary that “a party opposing summary judgment must present definite, competent evidence to rebut the motion.” Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 581 (1st Cir.1994).

In making this assessment, the court “must view the entire record in the light most hospitable to the party opposing summary judgment, indulging in all reasonable inferences in that party's favor.” Griggs–Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990...