Velazquez Rivera v. Danzig

Decision Date24 January 2000
Docket NumberNo. Civ. 99-1013(JP).,Civ. 99-1013(JP).
PartiesZoilo VELAZQUEZ RIVERA, Plaintiff, v. Richard J. DANZIG, et al., Defendant.
CourtU.S. District Court — District of Puerto Rico

Gino Negretti-Lavergne, San Juan, P.R., for plaintiff.

Lilliam E. Mendoza-Toro, U.S. Attorney's Office, District of P.R., Civil Division, Hato Rey, P.R., for defendant.

OPINION AND ORDER

PIERAS, District Judge.

I. INTRODUCTION

The Court has before it Defendants' Motion to Dismiss,1 (docket No. 18); Plaintiff's Opposition (docket No. 28); Defendants' Motion for Summary Judgment and Memorandum in Support Thereof (docket No. 42); Plaintiff's Opposition (docket No. 43); and Defendants' Reply (docket No. 44). In his Complaint, Plaintiff raises a plethora of claims against Defendants Richard J. Danzig, Secretary of the Navy; Ismael Pagán, the Navy's Director of Human Resources at Roosevelt Roads Naval Station in Ceiba, Puerto Rico ("Roosevelt Roads"); Efraín Feliciano, the Supervisor of the Fire Fighting Department at Roosevelt Roads; Pedro Ayala, the Lead Firefighter at the Fire Division, Air Operations in Vieques, Puerto Rico; and Bienvenido Burgos, the Fire Chief, Air Operations, Fire Division of Roosevelt Roads.2

In general terms, Plaintiff alleges that Defendants violated the Americans with Disabilities Act and the Rehabilitation Act when they incurred in a pattern of discrimination against him because of a handicap condition he developed while on the job. Plaintiff also contends that Defendants discriminated against him in violation of his Due Process rights,3 Title VII of the Civil Rights Act of 1964,4 the Age Discrimination in Employment Act and their local counterparts. Rather than starting with establishing the uncontested facts, the Court finds that it would be helpful to start by presenting the parties' allegations.

II. PARTIES ALLEGATIONS
A. Plaintiff's Allegations

Plaintiff Zoilo R. Velázquez ("Plaintiff") is a 55 year-old male who, until his dismissal in 1997, had worked for the U.S. Navy for 18 years. In 1988, Plaintiff began working as a firefighter at the Air Operations Division ("AIROPS"), Fire Division, in Roosevelt Roads and was stationed in Vieques, Puerto Rico.5

Since 1991 Plaintiff had been persecuted and discriminated against by Co-Defendant Fire Chief Bienvenido Burgos ("Burgos") and his subordinates. Plaintiff was falsely accused of fighting with a superior, was harassed, and was denied access to grievance proceedings.

Because of his role as a Union Representative, Plaintiff was the object of harassment by his immediate supervisor, Co-Defendant Efraín Feliciano ("Feliciano"). Since 1993, Feliciano told Plaintiff that he was going to fire him and engaged in a pattern of harassment and discrimination against Plaintiff. This pattern consisted of making false accusations against Plaintiff to tarnish Plaintiff's excellent service record. In 1993, Feliciano ordered Plaintiff to perform duties outside of his job description, and when Plaintiff refused, Feliciano suspended Plaintiff for seven days without pay. Feliciano tried to force Plaintiff to sign a resignation from in blank.

On January 14, 1994, Plaintiff suffered the first in a series of physical accidents while performing his job. Plaintiff injured his knee when Co-Defendant Lead Firefighter Pedro Ayala ("Ayala") changed the weights Plaintiff was lifting while training when he went to the bathroom. Supervisors did not perform an investigation or take measures relating to this accident. After this incident, Plaintiff was the subject of verbal and written innuendoes and charges of defamation in the workplace. Feliciano labeled Plaintiff as "old butter man" ("viejo mantequilla" in Spanish) and liar, refusing to acknowledge his handicap condition.

On January 23, 1995, Plaintiff provided Burgos with medical evidence of a knee surgery he had undergone following his accident and handicap condition. Plaintiff was placed in light duty status and, on or around March 31, 1995, was assigned the position of Fire Communications Operator. Although Plaintiff provided him with medical certificates, Feliciano failed to acknowledge Plaintiff's condition. Despite Plaintiff's handicap condition, Ayala and Feliciano forced him to perform duties outside of his medical limitations and job description. He was denied information about his job description and ordered to wash and wax vehicles. On May 8, 1995, Plaintiff presented a written grievance to Feliciano and Burgos, but they ignored it. Plaintiff's orthopedic surgeon certified on June 19, 1995, that Plaintiff could not squat or "do excessive stairs." Feliciano, however, continued doubting the credibility of Plaintiff's handicap. On October 26, 1995, the U.S. Naval Hospital issued a notification of medical disposition placing Plaintiff on Light Restricted Duty for 30 days until November 17, 1995. Feliciano became hysterical and disbelieved the medical evidence. He intervened with Dr. Méndez, a general practitioner with the military medical staff, and forced him to certify that Plaintiff was able to perform regular duties. Against medical orders, Feliciano placed and commanded Plaintiff to work regular duties causing a second labor accident on November 1, 1995, as Plaintiff stepped down from a fire truck causing his left knee to snap. On November 3, 1995, Plaintiff requested a meeting with a Commander through Feliciano to discuss his medical condition and Feliciano denied the request.

Feliciano then suspended Plaintiff while he was on traumatic injury leave, claiming that Plaintiff had not provided medical documentation. Plaintiff, however, did produce medical documentation to Feliciano before the suspension. Plaintiff was placed on Absent Without Leave Status.

On December 4, 1995, Plaintiff presented a grievance to the Naval Inspector General who ignored Plaintiff's request. Three years later, the Office of the Naval Inspector issued a decision, without explanation, documentation or information, that no abuse of authority was found but that improper application of rules governing sick leave occurred.

On December 5, 1995, the U.S. Naval Hospital concluded that the previous diagnostic criteria by military and civilian doctors were correct and that Plaintiff could not perform the regular duties of a firefighter. Plaintiff was later offered a position in the tools and parts department on April 26, 1996, but he was also unable to perform these duties due to his handicap condition.

On May 19, 1996, Plaintiff suffered another labor accident while walking out of a restroom in the base. On May 23, 1996, a notice of proposed removal for Plaintiff was issued. On June 17, 1996, Plaintiff notified the Commander that he could not accept the position in the tools division because of his medical condition. On June 24, 1996, Plaintiff was terminated and advised to appeal through the merit system. Plaintiff, however, was not advised as to the procedures of filing a discrimination action. Plaintiff appealed through the Merit System, and the case was not heard on its merits.

On April 11, 1997, Plaintiff received an accommodation offer as Fire Communication Operator. On April 16, 1997, Plaintiff's counsel requested a settlement meeting with the Commanding Officer, and the Navy stated that Plaintiff should accept the accommodation or lose all his benefits. Plaintiff struck a deal and several responsibilities were eliminated from the position of Fire Communication Operator. Plaintiff accepted the position and returned to work on May 12, 1997. On the day of his return, however, Plaintiff was sent home without any explanation after working approximately four hours. The Human Resources Department refused to answer Plaintiff's questions about his termination.

B. Defendants' Allegations

On January 14, 1994, Plaintiff injured his left knee while on the job. This was a serious injury that resulted in absence from work for an extended period of time. Because of the accident, Plaintiff claims that he was unable to perform his duties as firefighter and suffered an "impairment for life." Plaintiff remained out of work until March 31, 1995. At that time, Plaintiff claims that he was pressured to return to work in a "light duty" capacity as Communication Operator.

On November 1, 1995, Plaintiff was taken off light duty based on an evaluation of his physical condition by Dr. Méndez, a physician at Roosevelt Roads. A short time after his return to unlimited duty, Plaintiff fell and reinjured his knee. Plaintiff subsequently filed a "grievance" with the agency's Inspector General alleging harassment and discrimination. Plaintiff filed additional "discrimination grievances" with the Inspector General in April 1996.

Plaintiff was notified on April 26, 1996, that he was not fit to perform his duties as a firefighter and would be offered a position of Tool and Parts Attendant to accommodate his disability. Plaintiff rejected this offer because he believed that he suffered from a permanent disability that prevented him from performing the job.

On May 19, 1996, Plaintiff injured his knee once again when he stepped into a drain hole while exiting a restroom. Plaintiff was placed on 45 days of injury leave. During his absence from work, Plaintiff was notified that his employment would be terminated because his disability prevented him from performing the essential duties of his position.

Plaintiff's termination from employment was an appealable action. The agency decision letter notified Plaintiff of his appeal to the U.S. Merit Systems Protection Board and the 20 day time limit to appeal. In an initial decision, Plaintiff's case was dismissed as untimely.

Plaintiff's age discrimination claim is untimely because he did not file a notice of intent to sue under ADEA within 180 days of the alleged incident of discrimination. Absent such notice, Plaintiff must comply with the exhaustion provision of Title VII, and has failed...

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