Lozada v. Dejoy

• Decision Date: 09 March 2023
• Docket Number: CIVIL 20-1674 (DRD)
• Parties: NANCY LOZADA, Plaintiff, v. LOUIS DEJOY, POSTMASTER GENERAL OF THE U.S. POSTAL SERVICE, Defendant.
• Court: U.S. District Court — District of Puerto Rico

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NANCY LOZADA, Plaintiff, v. LOUIS DEJOY, POSTMASTER GENERAL OF THE U.S. POSTAL SERVICE, Defendant.

CIVIL No. 20-1674 (DRD)

United States District Court, D. Puerto Rico

March 9, 2023

OPINION AND ORDER

DANIEL R. DOMMGUEZ, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant, Louis DeJoy, Postmaster General for the United States Postal Service's (hereinafter, “USPS”) Motion to Dismiss Amended Complaint (Docket No. 28). A Response in Opposition thereto was filed by Plaintiff, Nancy Lozada. See Docket No.33. A Reply ensued shortly thereafter. See Docket No. 36.

Upon review, and for the reasons stated herein, the Court hereby GRANTS the Defendant's Motion to Dismiss Amended Complaint. (Docket No. 28).

I. INTRODUCTION

Originally Plaintiff filed a civil action for damages pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (hereinafter, “ADA”), the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and under 29 U.S.C. § 794 in particular, and the Age Discrimination in Employment Act of 1967, 29 U.S.C §§ 621, et seq. (hereinafter, “ADEA”), “for intentional adverse and discriminatory employment actions to which Lozada was subjected by defendants.” Complaint, Docket No. 1 at p. 1. Essentially, Lozada alleged that she was subject to discrimination on the basis of her age, (40+) when the Defendant failed to accommodate her in a position in favor of employees younger than 40 years old. As a result thereof, she was retaliated after requesting a reasonable accommodation. See id.

The USPS moved to partially dismiss Lozada's claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure “for failure to exhaust administrative remedies prior to filing the abovecaptioned claim and for failure to state a claim for which relief can be granted.” Docket No. 7 at p. 6. In sum, the USPS argued that the Rehabilitation Act is the proper statutory provision under which Plaintiff could raise any claim of discrimination or retaliation based on disability not the ADA. On March 28, 2022, the Court dismissed claims related to the ADA, the ADEA, and declined to exercise supplemental jurisdiction as to Puerto Rico law claims as it is precluded by law to do so. See Opinion and Order, Docket No. 16. Plaintiff was also ordered to amend the complaint in order to provide a more definite statement but with the sole purpose of “clarify[ing] allegations pertaining to the Rehabilitation Act within the applicable time frame pursuant to [the Court's] Opinion.”” Id.

Pursuant to the Court's Opinion and Order, Lozada amended the pleadings. See Docket No. 21. In sum, Plaintiff seeks damages pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and under section 504, 29 U.S.C. § 794, in particular, “for the intentional adverse and discriminatory employment actions to which Lozada was subjected by defendants.” Amended Complaint, Docket No. 21 at p. 1. Lozada further seeks declaratory relief as to the alleged illegality of USPS' actions “in the context of her employment, reinstatement order, compensation for plaintiff's suffering, emotional distress, and moral damages, loss of wages (including back pay), costs, interest, and reasonable attorney's fees.” Id. In a nutshell, Lozada claims that she was subject to discrimination on the basis of her age, (40+) when the Defendant failed to accommodate her in a position in favor of employees younger than 40 years old. As a result thereof, she was retaliated after requesting a reasonable accommodation. See id.

The USPS now moves to dismiss the Amended Complaint in its entirety for the following reasons:

1. Plaintiff's Amended Compliant does not comply with the Court's Order and once again, fails to allege she is a qualified individual with a disability.

2. Plaintiff failed to allege a plausible claim of retaliation under the Rehabilitation Act;

3. Plaintiff failed to exhaust administrative remedies regarding a letter she was sent on February 25, 2020, and alternatively, such a letter is not an adverse employment action;

4. The Court lacks jurisdiction to address Plaintiff's accommodation requests under the Federal Employees Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq.

Docket No. 28 at p. 2.

II. FACTUAL AND PROCEDURAL BACKGROUND

As stated in the Amended Complaint, Lozada is a 53-year-old^[1] female who was born in June 13, 1969, and is a full-time Carrier Technician for the USPS. Amend. Comp. at ¶¶ 2, 6. On June 11, 2014, Plaintiff suffered an injury to her right ankle while delivering mail. Id. at ¶ 8. Upon partially recovering, she returned to a limited duty job at the Bayamon station, delivering mail on a mounted route. Id. at ¶ 9. By December 4, 2016, Lozada returned to her regular carrier technician assignment, which consisted of five (5) walking routes at the Loiza station. Id. at ¶ 10. As Plaintiff began experiencing pain and discomfort shortly thereafter, she informed the situation to her manager, Erika Vazquez. Id. at ¶ 11. According to Lozada, Vazquez was unable to help her because all the routes in the Loiza station are walking routes. Id. at ¶12. Subsequently, Plaintiff visited her doctor who ordered an MRI which revealed a high-grade tear of anterior talofibular ligament and tenosynovitis. Id. at ¶ 13. She continued working until December 23, 2016, when she fell while performing her duties, re-injuring her right ankle, resulting in being placed in a cast until March 2, 2017. Id. at ¶¶ 15-16. A claim was filed as a result thereof. Id. at ¶ 15. The Department of Labor, Office of Workers' Compensations Program (“OWCP”) accepted Lozada's claims for benefits on April 12, 2017, and November 8, 2017, respectively. Id. at ¶¶ 20-27. Plaintiff began receiving treatment with a doctor that worked with OWCP cases and who agreed to treat her injuries on April 16, 2018. Id. at ¶ 30. Between then and November of 2018, Plaintiff allegedly attempted to return to work with limited duties by requesting a reasonable accommodation through Mayra Mendoza. Id. at ¶¶ 31-37. However, Vega Baja Postmaster, Carlos Cabrera informed Lozada that he was unable to offer her any work considering her doctor's Duty Status Report, Form CA-17. Id. at ¶¶ 36-37. Although Plaintiff claims that she has made multiple unsuccessful attempts to obtain a work accommodation, on March 20, 2019, she received an Offer of Modified Assignment to work a (2.5) hour shift at the Loiza Station, but instead requested a reassignment to the Vega Baja office, as it is closer to her home. Id. at ¶¶ 41-44. Specifically, Plaintiff requested a reassignment transfer to the Vega Baja Office as an FTR sales/services, distribution associate, Level 6 position. Id. at ¶ 44. But on October 2, 2019, she was denied the position because of her “unacceptable attendance, work and safety record.” Id. at ¶ 45.

Plaintiff's discrimination claims stem from the fact that the USPS has allegedly hired or converted to regular, multiple employees at the Vega Baja Post Office after her injury, and most of them are under 40 years of age. Id. at ¶¶ 48, 53^[2]. On August 13, 2019, Plaintiff was invited to an Accommodation Meeting with the Case Caribbean District Reasonable Accommodation Committee (hereinafter, “DRAC”). Id. at ¶ 54.

Eventually, Plaintiff made initial contact with the USPS' EEO counselor on November 4, 2019 (see Docket No. 28, Exhibit No. 1 at p. 3) and as a result thereof, on December 20, 2019, she filed a formal complaint to the Post Office's EEO. Amend Comp. at ¶ 55; see also, Docket No. 28, Exhibit 1 at p. 3.^[3] In the EEO Complaint, the following claims as to discrimination based on sex (female), age, retaliation, and disability were raised:

1) Beginning on March 10, 2017, she did not receive compensation from the Office of Workers Compensation Program (OWCP).

2) On August 7, 2017, she received a letter stating effective February 22, 2017, her health benefits would be cancelled.

3) In October of 2018, she was not told there was no work available within her restrictions.

4) On October 2, 2019, she received notification that the modified job offer as a clerk in Vega Baja was denied due to her attendance and safety record.

See Docket No. 28, Exhibit No. 2 at pp. 1-2. On January 9, 2020, the EEO issued a Partial Acceptance/Partial Dismissal of Formal EEO Complaint accepting only Claim Four for investigation. Claims One, Two and Three were deemed untimely as Plaintiff failed to seek EEO counselling within 45 days of the event which led to the complaint. Likewise, Claims One and Two were also dismissed for lodging an impermissible collateral attack on another forum, namely, the DOL's OWCP and the OPM, respectively. Id. at pp. 6-7. Although the document advised that “[i]f you do not agree with the defined accepted issue(s), you must provide a written response specifying the nature of your disagreement within seven (7) calendar days of receipt of this letter to the EEO Services Analyst . . .,” Plaintiff failed to do so.

Lastly, after filing the EEO complaint, Lozada alleges to have received a letter dated February 25, 2020 from the District Office stating that she has been absent since December 24, 2016, and that she should indicate the type of leave she had requested. Amend. Comp., at ¶ 57. Lozada claims that “[t]his is also an adverse employment action within the scope of the Rehabilitation Act, as well as a clear act of retaliation.” Id.

According to Lozada, multiple employees have been hired or transferred to the Vega Baja station after she filed her EEO complaint. See Docket No. 21 at ¶ 60. However, on June 18 2020, she was informed by Edgar Quiles, Manager of the Loiza CCU Station that there are no possible reasonable accommodations for her “without violating the governing collective...