Rodriguez v. Dep't of the Army, CIVIL NO.: 16-1000 (MEL)
| Decision Date | 15 November 2018 |
| Docket Number | CIVIL NO.: 16-1000 (MEL) |
| Parties | HENRY RODRIGUEZ, Plaintiff, v. DEPARTMENT OF THE ARMY; MARK ESPER, SECRETARY OF THE ARMY, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Henry Rodríguez ("Plaintiff") has filed a third amended complaint against the Department of the Army ("Defendant" or "Army") alleging violations of his employment rights under the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 791 et seq. ECF No. 83, at 1. Pending before the court is Defendant's motion for summary judgment. ECF No. 48.
The purpose of summary judgment "is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992) (citations omitted). Summary judgment is granted when the record shows 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). Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting Rodríguez-Rivera v. Federico Trilla Reg'l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)).
The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant presents a properly focused motion "averring 'an absence of evidence to support the nonmoving party's case[,]' [t]he burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both 'genuine' and 'material.'" Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)).
In assessing a motion for summary judgment, the court "must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Id. There is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood." Greenburg v. P. R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). The court may, however, safely ignore "conclusory allegations, improbable inferences, and unsupported speculation." Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations omitted).
Plaintiff is a former civilian Army police officer who worked at Fort Buchanan from September 2004 until December 20, 2013. ECF Nos. 50, at 1, ¶ 1; 59, at 1, ¶ 1.
On October 23, 2012, due to a condition not specified by the parties, a physician recommended to Plaintiff's supervisors that he avoid lifting over 50 pounds, pushing, and pulling.1 ECF Nos. 50, at 3, ¶ 8; 59, at 2, ¶ 8. On November 17, 2012, Plaintiff's supervisor put him to work on the shift starting at midnight at the Monitoring Station. ECF Nos. 50, at 3, ¶ 10; 59, at 2, ¶ 10.
Plaintiff worked at the Monitoring Station until January 22, 2013. During that time, Plaintiff performed all his duties with no health complaints. ECF Nos. 50, at 3, ¶ 11; 59, at 3, ¶ 11. On January 22, 2013, Plaintiff's doctor recommended another 30 days on light duty, with no running, jumping, pushups, sit-ups, lifting, or pulling above 50 pounds for more than two hours. Plaintiff was to avoid prolonged standing and be allowed 5-10-minute breaks every two hours. ECF Nos. 50, at 3, ¶ 12; 59, at 3, ¶ 12. The recommendation was delivered to Plaintiff's supervisors, who sent him home on approved medical leave the same day because the Monitoring Station "d[id] not require [Plaintiff's] service" anymore. ECF Nos. 50, at 4, ¶ 13; 59, at 3, ¶ 13.
On January 24, 2013, Plaintiff initiated a pre-complaint with the Army Equal Employment Opportunity (EEO) Office, alleging discrimination. Specifically, he alleged that his supervisors delayed implementing a request for a reasonable accommodation made on October 23, 2012 for three weeks and subsequently ended the accommodation in January 2013, forcing him to take sick leave. ECF Nos. 50, at 4, ¶ 14; 59, at 3, ¶ 14.
On March 1, 2013, Plaintiff filed a formal complaint in Claim 0330 at the EEO, alleging discrimination and adding that he had been threatened with disciplinary action if he did not report to the firing range for a temporary assignment. ECF Nos. 50, at 4, ¶ 15; 59, at 4, ¶ 15. The Army EEO Office dismissed the claim for delayed accommodation because Plaintiff made initial contact with the EEO Office after the 45-day deadline had expired. Plaintiff's claim that he had been threatened with discipline was also dismissed because he "was never actually disciplined and therefore did not suffer an adverse employment action." ECF Nos. 50, at 4, ¶ 16; 59, at 4, ¶ 16.
On April 22, 2013, Plaintiff was detailed to work at the I.D. Card section at the Directorate of Human Resources (DHR). This was a temporary detail not to exceed 120 days. ECF Nos. 50, at 5, ¶ 17; 59, at 4, ¶ 17.
Plaintiff worked at the I.D. Card section at DHR until September 3, 2013, when he was reassigned to work at the Monitoring Station.2 ECF Nos. 50, at 5, ¶ 18; 59, at 4, ¶ 18. On September 4, 2013, he began training at the Monitoring Station, which was terminated the next day. For 10 days, Plaintiff went to work but did not perform any job-related duties. Then, on September 13, 2013, he was sent home. ECF No. 59, at 5, ¶ 18.
On September 16, 2013, Plaintiff initiated another EEO pre-complaint (Claim 03365), alleging that he was subject to discrimination based on disability and retaliation. ECF Nos. 50, at 5, ¶ 20; 59, at 5, ¶ 20. Plaintiff subsequently was given 464 hours of administrative leave, beginning on September 30, 2013. ECF Nos. 50, at 5, ¶ 19; 59, at 5, ¶ 19.
On October 16, 2013, an individual by the name of Robert Nelson issued a Notice of Proposed Separation Action that was delivered to Plaintiff on October 17, 2013.3 ECF Nos. 50, at 5, ¶ 21; 59, at 5, ¶ 21. The Notice of Proposed Separation Action stated that Plaintiff's "identified physical limitations as validated by medical authorities and other related factors prevent[ed] [him] . . . from performing one or more of [his] . . . essential duties to include [his] . . . inability to qualify or use or carry a firearm."4 ECF Nos. 50, at 6, ¶ 25; 59, at 9, ¶ 25. According to medical reports prepared by Dr. Janelle Torres-Giovannetti on September 10, 2013 and October 1, 2013, Plaintiff was unfit for duty. ECF Nos. 50, at 6, ¶ 22; 59, at 6, ¶ 22. The medical reports noted that inaddition to his physical ailments, Plaintiff was undergoing treatment with "medication that may cause drowsiness and decrease alertness."5 ECF Nos. 50, at 6, ¶ 24; 59, at 9, ¶ 24.
In an effort to find him another position, Plaintiff was considered for Security Assistant, GS-0086-5, but was found not to meet the physical requirements of the position. A search was also made for other vacant positions at or below the GS-06 pay grade. While Defendant claims that there were none (ECF No. 50, at 7, ¶ 27), Plaintiff claims that there were two open positions at the Monitoring Station which were filled after he was terminated and that he was offered a job at the I.D. Card section by a supervisor in the I.D. Card section. ECF No. 59, at 10, ¶ 27.
Prior to his removal, Plaintiff was afforded ten calendar days to respond to the proposed termination. ECF No. 50-12, at 307. In his October 21, 2013 response, Plaintiff's attorney neither raised the issue of the authenticity of the medical reports nor asserted that Plaintiff was able to perform his job as a police officer. ECF Nos. 50, at 7, ¶ 28; 59, at 10, ¶ 28. Instead, Plaintiff's attorney focused on various positions that he alleged Plaintiff could be reassigned to. ECF No. 50-19.
Plaintiff was fired on December 16, 2013. ECF No. 59, at 5, ¶ 19. According to Colonel Kathleen Porter, the official who made the decision to remove Plaintiff, he was terminated because of his "permanent inability to perform in [his] official position." ECF Nos. 50, at 7, ¶ 26; 59, at 10, ¶ 26.6
On January 28, 2014, Plaintiff initiated a pre-complaint with the EEO office. ECF Nos. 50, at 7-8, ¶ 29; 59, at 11, ¶ 29. Plaintiff filed his formal complaint on August 1, 2014 (Claim1291), alleging that he was removed from his position based on his disability and in retaliation for his prior protected conduct. ECF Nos. 50, at 8, ¶ 30; 59, at 11, ¶ 30. The EEO Office dismissed one of Plaintiff's claims because it was untimely and because it was part of his previous EEO complaint. ECF Nos. 50, at 8, ¶ 31; 59, at 11, ¶ 31.
Plaintiff raises two causes of action in his third amended complaint. First, Plaintiff alleges that Defendant failed to provide him with reasonable accommodation for his disability. ECF No. 83, at 5. Second, Plaintiff alleges that Defendant retaliated against him. Id. at 6. A discussion of each cause of action follows.
Defendant contends that Plaintiff did not raise a claim of retaliation based on activity protected by Title VII in his administrative complaints.7 Specifically, in his EEO complaints, Plaintiff never alleged that he was retaliated against because of his "race, color, religion, sex, or national origin." Vance v. Ball State Univ., 570 U.S. 421, 426 (2013) (quoting 42 U.S.C. § 2000e-2(a)(1)). This matters, Defendant argues, because in his second amended complaint, Plaintiff alleged that Defendant retaliated against him in violation of Title VII. Thu...
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