Rojas v. Principi
| Decision Date | 19 July 2004 |
| Docket Number | No. CIV. 01-2560(RLA).,CIV. 01-2560(RLA). |
| Citation | 326 F.Supp.2d 267 |
| Parties | Antonio ROJAS, Plaintiff, v. Anthony PRINCIPI, Secretary of the Department of Veterans Affairs, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Elaine Rodríguez Frank, Esq., San Juan, PR, for Plaintiff.
Fidel A. Sevillano Del Rio, Esq., United States Attorney's Office, San Juan, PR, for Defendant.
ORDER DISMISSING VARIOUS CLAIMS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND GRANTING PARTIAL SUMMARY JUDGMENT
Plaintiff instituted this action seeking relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, against ANTHONY PRINCIPI, Secretary of the DEPARTMENT OF VETERANS AFFAIRS (DVA). Plaintiff alleges discrimination based on physical disability, age, and race. The complaint challenges a total of seven (7) employment decisions which plaintiff claims were based on nonpermissible discriminatory reasons and/or motivated by retaliatory animus. Additionally, plaintiff alleges breach of a Settlement Agreement executed by the parties on April 12, 1996.
Defendant has moved the court to dismiss the first six (6) of the challenged employment decisions as well as the Title VII and handicap claims asserted in the complaint pursuant to Rule 12(b)(6) Fed.R.Civ.P. for failure to exhaust administrative remedies. Additionally, defendant has requested that summary judgment be entered dismissing the remaining employment decision challenged on ADEA and retaliation grounds. No arguments were presented by the defendant in their motion with respect to the breach of agreement claim.
Plaintiff ANTONIO ROJAS, born in 1935, has been occupying the position of auditor at the Fiscal Service of the DVA Medical Center in San Juan, Puerto Rico since approximately 1992.
In 1995 plaintiff filed an EEO complaint alleging color, national origin, age, and handicap discrimination due to DVA's failure to promote him to an Environmental Management Service Chief position. This matter was resolved via a Settlement Agreement entered into by the parties on April 12, 1996.
On February 5, 2001 plaintiff submitted a breach of settlement claim before DVA's OFFICE OF RESOLUTION MANAGEMENT ("ORM") which was denied on June 28, 2001 due to plaintiff's failure to exercise his administrative appellate rights regarding this determination.
Additionally, plaintiff made an initial contact with an EEO counselor on February 5, 2001 challenging as discriminatory the DVA's failure to select him to various positions as well as certain personnel actions taken against him. The following specific claims were brought to the counselor's attention at the time:
Basis Claim Date of Occurrence
Reprisal (1) Non-selection, VA Announcement # 97-03 3/26/97
& age
(2) Non-selection, VA Announcement # 98-19 4/20/98
(3) Non-selection, VA Announcement # 99-07 3/11/99
(4) Written counseling 12/10/99
(5) Proposed admonishment 3/22/00
(6) Reprimand 9/26/00
(7) Cancellation of VA Announcement # 2000-114 2/5/01
On March 23, 2001 plaintiff was put on notice by ORM that most of the aforementioned claims were stale and was requested to explain why he had not given notice thereof within the required 45 days. Plaintiff failed to provide any evidence or information regarding a timely contact with the pertinent counselor.
Only the last, i.e., seventh claim, challenging the cancellation of VA Announcement No. 2000-114 was accepted for investigation by the EEO as timely submitted but limited to age discrimination and reprisal grounds.
In disposing of motions to dismiss pursuant to Rule 12(b)(6) Fed.R.Civ.P. the court will accept all factual allegations as true and will make all reasonable inferences in plaintiff's favor. Frazier v. Fairhaven School Com., 276 F.3d 52, 56 (1st Cir.2002); Alternative Energy, Inc. v. St Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001); Berezin v. Regency Sav. Bank, 234 F.3d 68, 70 (1st Cir.2000); Tompkins v. United Healthcare of New England, Inc., 203 F.3d 90, 92 (1st Cir.2000).
Our scope of review under this provision is a narrow one. Dismissal will only be granted if after having taken all well-pleaded allegations in the complaint as true, the Court finds that plaintiff is not entitled to relief under any theory. Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 530 (1st Cir.1995) cert. den. 516 U.S. 1159, 116 S.Ct. 1044, 134 L.Ed.2d 191 (1996); Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir.1994). Further, our role is to examine the complaint to determine whether plaintiff has adduced sufficient facts to state a cognizable cause of action. Alternative Energy, 267 F.3d at 36. The complaint will be dismissed if the court finds that under the facts as pleaded plaintiff may not prevail on any possible theory. Berezin, 234 F.3d at 70; Tompkins, 203 F.3d at 93.
Rule 56(c) Fed. R. Civ. P., which sets forth the standard for ruling on summary judgment motions, in pertinent part provides that they shall be granted "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 a judgment as a matter of law." Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st Cir.2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir.1999). The party seeking summary judgment must first demonstrate the absence of a genuine issue of material fact in the record. DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997). A genuine issue exists if there is sufficient evidence supporting the claimed factual disputes to require a trial. Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if it might affect the outcome of a lawsuit under the governing law. Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir.1995).
In cases where the non-movant party bears the ultimate burden of proof, he must present definite and competent evidence to rebut a motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir.2001); Grant's Dairy v. Comm'r of Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir.2000), and cannot rely upon "conclusory allegations, improbable inferences, and unsupported speculation". Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st Cir.2000); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).
Inasmuch as defendant has not addressed the merits of the breach of settlement agreement claim we shall limit our review to the arguments presented by DVA regarding the seven employment decisions listed in plaintiff's administrative claim.
We must first note that the complaint exclusively cites Title VII as the basis for relief of all types of discrimination asserted by plaintiff, i.e., (1) race/national origin, (2) disability and (3) age. However, Title VII only addresses "race, color, religion, sex, or national origin" discrimination. 42 U.S.C. § 2000e-16(a). Disability discrimination in federal employment is specifically covered by the provisions of The Rehabilitation Act of 1973, 29 U.S.C. § 794 whereas age discrimination claims against the federal government are governed by the special provisions of the ADEA, 29 U.S.C. § 633a.
We shall initially examine whether plaintiff has stated a valid cause of action under Title VII for events 1 through 6 previously listed. Additionally, because plaintiff has moved for leave to amend the complaint to assert a claim under The Rehabilitation Act we shall examine the viability of plaintiff's disability claim based on events 1 through 6 under The Rehabilitation Act standards. Lastly, in order to fully dispose of the issues presented via the aforementioned 1 through 6 events we shall also scrutinize them in light of the applicable ADEA procedural requirements.
Once we have examined the viability of plaintiff's causes of action based on events 1 through 6 we shall proceed to determine whether" (1) plaintiff may now, for the first time, assert Title VII and disability claims based on the cancellation of Vacancy Announcement No. 2000-114 on February 5, 2001, and (2) summary judgment should be granted in defendant's favor on plaintiff's ADEA and reprisal claims premised on this cancellation.
The United States, as a sovereign, is immune from suit unless it waives its immunity by consenting to be sued. See, United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (). In 1972 — by way of an amendment to the Civil Rights Act of 1964 — federal employees were allowed to vindicate claims of discrimination in employment based on "race, color, religion, sex, or national origin" via judicial proceedings. 42 U.S.C. § 2000e-16(a). These remedies are exclusive and mandate that employees first exhaust the pertinent administrative steps prior to resorting to the court for relief. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Brown v. Gen. Servs. Admin., 425 U.S. 820, 829-30, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Hence, federal agencies "may only be sued in federal court if the aggrieved employee... has exhausted all available administrative remedies." Misra v. Smithsonian Astrophsical...
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