Marquez v. Nicholson et al, No. 3:2006cv01581 - Document 37 (D.P.R. 2009)
Court Description: ORDER granting 23 motion for summary judgment. Plaintiff's claims for alleged failure to accommodate and for harassment under the Rehabilitation Act are DISMISSED. Plaintiff's claim under HIPAA is DISMISSED for lack of subject matter jurisdiction. Signed by Judge Raymond L. Acosta on 2/18/09. (ans)
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Marquez v. Nicholson et al Doc. 37 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 LIZZETE T. MARQUEZ, 5 Plaintiff, 6 v. 7 8 9 CIVIL NO. 06-1581 (RLA) ANTHONY PRINCIPI, DEPARTMENT OF VETERANS AFFAIRS, Defendant. 10 11 12 13 14 15 16 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant has moved the court to enter summary judgment in this case dismissing plaintiff’s complaint. The court having reviewed the arguments presented by the parties as well as the documents submitted in support thereof finds that defendant’s arguments are valid and that dismissal is warranted. 17 18 19 20 21 22 23 24 BACKGROUND Plaintiff instituted these proceedings under the Rehabilitation Act of 1973, 29 U.S.C. § 794, claiming failure to accommodate and harassment in her employment allegedly due to her mental and physical disabilities. In the complaint plaintiff also cites unauthorized disclosure of private medical information protected by the Health Insurance Portability and Accountability Act (“HIPAA”), 42 U.S.C. §§ 1320d-1320d-8. 25 26 Dockets.Justia.com 1 CIVIL NO. 06-1581 (RLA) Page 2 2 SUMMARY JUDGMENT 3 Rule 56(c) Fed. R. Civ. P., which sets forth the standard for 4 ruling on summary judgment motions, in pertinent part provides that 5 they shall be granted “if the pleadings, depositions, answers to 6 interrogatories, and admissions on file, together with the 7 affidavits, if any, show that there is no genuine issue as to any 8 material fact and that the moving party is entitled to a judgment as 9 a matter of law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st 10 Cir. 2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 11 1999). The party seeking summary judgment must first demonstrate the 12 absence of a genuine issue of material fact in the record. 13 DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997). A genuine 14 issue exists if there is sufficient evidence supporting the claimed 15 factual disputes to require a trial. Morris v. Gov't Dev. Bank of 16 Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am. 17 Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 18 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if 19 it might affect the outcome of a lawsuit under the governing law. 20 Morrissey v. Boston Five Cents Sav. Bank, 54 F. 3d 27, 31 (1st Cir. 21 1995). 22 “In ruling on a motion for summary judgment, the court must view 23 ‘the facts in the light most favorable to the non-moving party, 24 drawing all reasonable inferences in that party's favor.’" Poulis25 26 1 CIVIL NO. 06-1581 (RLA) Page 3 2 Minott v. Smith, 388 F.3d 354, 361 (1st Cir. 2004) (citing Barbour v. 3 Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995)). 4 Credibility issues fall outside the scope of summary judgment. 5 “‘Credibility determinations, the weighing of the evidence, and the 6 drawing of legitimate inferences from the facts are jury functions, 7 not those of a judge.’” Reeves v. Sanderson Plumbing Prods., Inc., 8 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing 9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 10 91 L.Ed.2d 202 (1986)). See also, Dominguez-Cruz v. Suttle Caribe, 11 Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“court should not engage in 12 credibility assessments.”); Simas v. First Citizens' Fed. Credit 13 Union, 170 F.3d 37, 49 (1st Cir. 1999) (“credibility determinations 14 are for the factfinder at trial, not for the court at summary 15 judgment.”); Perez-Trujillo v. Volvo Car Corp., 137 F.3d 50, 54 (1st 16 Cir. 1998) (credibility issues not proper on summary judgment); 17 Molina Quintero v. Caribe G.E. Power Breakers, Inc., 234 F.Supp.2d 18 108, 113 (D.P.R. 2002). “There is no room for credibility 19 determinations, no room for the measured weighing of conflicting 20 evidence such as the trial process entails, and no room for the judge 21 to superimpose his own ideas of probability and likelihood. In fact, 22 only if the record, viewed in this manner and without regard to 23 credibility determinations, reveals no genuine issue as to any 24 material fact may the court enter summary judgment." Cruz-Baez v. 25 26 1 CIVIL NO. 06-1581 (RLA) Page 4 2 Negron-Irizarry, 360 F.Supp.2d 326, 332 (D.P.R. 2005) (internal 3 citations, brackets and quotation marks omitted). 4 In cases where the non-movant party bears the ultimate burden of 5 proof, she must present definite and competent evidence to rebut a 6 motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 7 U.S. at 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202; Navarro v. Pfizer 8 Corp., 261 F.3d 90, 94 (1st Cir. 2000); Grant's Dairy v. Comm'r of 9 Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir. 2000), and cannot rely 10 upon “conclusory allegations, improbable inferences, and unsupported 11 speculation”. Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st 12 Cir. 2000); Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 13 (1st Cir. 1994); Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 14 5, 8 (1st Cir. 1990). 15 THE FACTS 16 Plaintiff commenced working at the San Juan Veterans 17 Administration Medical Center (“SJ-VA”) on June 13, 2004 as a Health 18 Systems Specialist at the Utilization Management Section in the 19 Revenue Program under the Business Office. 20 Among her duties as Health Systems Specialist plaintiff had to 21 use clinical judgment in the analysis of medical records in order to 22 determine whether treatment provided to patients at the VA Hospital 23 was consistent with the patient’s diagnosis and medical needs. She 24 also had to attend medical rounds and visit the emergency area as 25 26 1 CIVIL NO. 06-1581 (RLA) Page 5 2 well as examine insurance cases and coverage for non-VA cases 3 whenever necessary. 4 During plaintiff’s tenure, Monserrate Leon held the position of 5 Revenue and Marketing Officer under the Business Office at the SJ-VA. 6 Monserrate Leon’s duties as Revenue and Marketing Officer 7 included the supervision of the Utilization Revenue Program where 8 plaintiff was assigned. She also signed plaintiff’s evaluations. 9 Carmen Nereida Garcia Robles was plaintiff’s team leader. As 10 such, she assigned plaintiff’s work and prepared plaintiff’s 11 evaluations for Ms. Leon’s signature. 12 On or about February 16, 2005 plaintiff was hospitalized at 13 Hospital Panamericano due to a mental condition. 14 Plaintiff was approved to return back to work by her physician 15 effective March 21, 2005. 16 On or about June 10, 2005 plaintiff’s request for accommodation 17 in her duties to avoid contact with patients due to her low immune 18 system was denied. 19 On June 14, 2005 plaintiff applied for Immediate Retirement from 20 Federal Service. 21 On June 15, 2005 plaintiff’s request for participation in the 22 Donated Voluntary Leave Transfer Program was approved. 23 Plaintiff’s last day at work was June 16, 2005. 24 Plaintiff had an initial EEO contact on August 24, 2005. 25 26 1 CIVIL NO. 06-1581 (RLA) Page 6 2 Plaintiff retired from Federal Service due to disability 3 effective November 25, 2005. 4 REHABILITATION ACT 5 Disability discrimination in federal employment is specifically 6 covered by the provisions of the Rehabilitation Act and not by the 7 American with Disabilities Act (“ADA”), 42 U.S.C. 12101-12213. See, 8 Enica v. Principi, 544 F.3d 328, 338 n.11 (1st Cir. 2008) (“[a]s a 9 federal employee, [plaintiff] is covered under the Rehabilitation Act 10 and not the ADA.”) 11 “The ADA and Rehabilitation Act prohibit discrimination against 12 an otherwise qualified individual based on his or her disability. The 13 Rehabilitation Act, the precursor of the ADA, applies to federal 14 agencies, contractors and recipients of federal financial assistance, 15 while the ADA applies to private employers with over 15 employees and 16 state and local governments.” Calero-Cerezo v. U.S. Dep’t of Justice, 17 355 F.3d 6, 19 (1st Cir. 2004). 18 The Rehabilitation Act protects employees from disability-based 19 harassment in the workplace if it is severe enough to constitute a 20 hostile work environment. “To establish a hostile work environment, 21 [plaintiff] ha[s] to show that [her] workplace was permeated with 22 discriminatory intimidation, ridicule, and insult that was 23 sufficiently severe or pervasive to alter the conditions of [her] 24 employment and create an abusive working environment.” Quiles-Quiles 25 v. Henderson, 439 F.3d 1, 7 (1st Cir. 2006) (citations and internal 26 1 CIVIL NO. 06-1581 (RLA) Page 7 2 quotation marks and brackets omitted). See also, Rios v. Principi, 3 520 F.3d 31, 43 (1st Cir. 2008). “Among the factors relevant to this 4 inquiry are the severity of the conduct, its frequency, and whether 5 it unreasonably interfered with the victim’s work performance.” 6 Quiles-Quiles, 439 F.3d at 7; Rios v. Principi, 520 F.3d at 43. 7 Employees with a disability are also entitled to a reasonable 8 accommodation in their place of work. “In addition to prohibiting 9 disparate treatment of individuals with disabilities, the 10 Rehabilitation Act and American with Disabilities Act (‘ADA’) impose 11 an affirmative duty on employers to offer a reasonable accommodation 12 to a disabled employee.” Enica v. Principi, 544 F.3d at 338 omitted). “The federal 13 (internal citation and quotation marks 14 statutes barring discrimination based on disability do more than 15 merely prohibit disparate treatment; they also impose an affirmative 16 duty to employers to offer a ‘reasonable accommodation’ to a disabled 17 employee.” Calero-Cerezo, 355 F.3d at 19-20. 18 Prior to recurring to the courts for relief, employees claiming 19 violation of the Rehabilitation Act must allow the government an 20 opportunity to review their claims within specific time limitations. 21 “An employee suing the federal government under the 22 Rehabilitation Act must exhaust certain administrative remedies 23 before initiating a lawsuit in federal court. The first step is to 24 initiate contact with an EEO Counselor within 45 days of the date of 25 the matter alleged to be discriminatory.” Bruce v. U.S. Dep’t of 26 1 CIVIL NO. 06-1581 (RLA) Page 8 2 Justice, 314 F.3d 71, (2nd 74 Cir. 2002) (citations, internal 3 quotation marks and brackets omitted). “Under Title VII and the 4 Rehabilitation Act, federal employees are required to initiate 5 administrative review of any alleged discriminatory or retaliatory 6 conduct with the appropriate agency within 45 days of the alleged 7 discriminatory act.” Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th 8 Cir. 2008). 9 Failure to comply with the pre-complaint processing requirements 10 of 29 C.F.R. § 1614.105(a)(1) - which mandate contact with an EEO 11 counselor within 45 days of the allegedly discriminatory event - will 12 result in the dismissal of any such claims under the Rehabilitation 13 Act. See i.e., id. (“[g]enerally, when the claimant does not initiate 14 contact within the 45-day charging period, the claim is barred for 15 failure to exhaust administrative remedies”); Henrickson v. Potter, 16 327 F.3d 444, 446 (5th Cir. 2003) (“no viable claims under the 17 Rehabilitation Act because [plaintiff] failed to contact the EEO 18 counselor within 45 days of Velazquez Rivera v. Danzig, the alleged discriminatory act”); 19 234 F.3d 790, 794 (1st Cir. 2000) 20 (“administrative remedies had not been exhausted since there had been 21 no contract with an Equal Employment Opportunity Commission (EEOC) 22 counselor within 45 days as required by 29 C.F.R. § 1614.105(a)(1)”); 23 Roman-Martinez v. Runyon, 100 F.3d 213, 216-18 (1st Cir. 1996) 24 (failure to timely contact counselor entails waiver of court review). 25 26 1 CIVIL NO. 06-1581 (RLA) Page 9 2 In cases of harassment, events occurring outside the 45-day 3 period may be taken into consideration in ascertaining whether or not 4 a violation of the statute has taken place. “Because acts of 5 harassment may not all occur within the filing period, the Supreme 6 Court has held provided that an act contributing to the claim occurs 7 within the filing period, the entire time period of the hostile 8 environment may be considered by a court for the purposes of 9 determining liability.” Greer v. Paulson, 505 F.3d 1306, 1313 (D.C. 10 Cir. 2007) (citations, internal quotation marks and brackets 11 omitted). 12 Accommodation 13 It is evident that plaintiff’s claims for alleged failure to 14 accommodate her disability-based needs at work are untimely. 15 In her August 24, 2005 initial contact with an EEO counselor 16 plaintiff indicated that she had been denied reasonable accommodation 17 for a second time on June 10, 2005 when her petition not to make 18 hospital rounds was denied. According to plaintiff, the first time 19 her accommodation request had been rejected was when she was 20 initially hired on June 13, 2004, when she had informed Ms. Leon of 21 her need for an assessment in her work area to adapt it to her 22 physical disabilities. According to the Initial Contact and Interview 23 Sheet, not only did Ms. Leon not provide her with any assistance in 24 this regard but was angry when plaintiff was able to procure a 25 special chair and a keyboard on her own. 26 1 CIVIL NO. 06-1581 (RLA) Page 10 2 It is clear that both the June 2004 denial of accommodation in 3 plaintiff’s work area as well as the June 13, 2005 denial of 4 plaintiff’s request not to come in contact with patients fall outside 5 the 45 day limit set by the applicable regulations. 6 Because plaintiff failed to bring these two matters to the 7 attention of the Office of Resolution Management within the required 8 45 day term plaintiff is precluded from raising them at this time. 9 Accordingly, plaintiff’s failure to accommodate claims are 10 hereby DISMISSED. 11 Harassment 12 Plaintiff also complains that she was harassed at work due to 13 her disability in that Ms. Leon was constantly inquiring as to her 14 whereabouts and also denied her request for leave for her service15 connected appointments. 16 Even though plaintiff’s June 14, 2005 application for disability 17 retirement was approved effective November 25, 2005, as plaintiff 18 herself concedes, she “ceased to actively report to work” on June 17, 19 2005.1 20 Absent evidence to the contrary, it is axiomatic that once 21 plaintiff ceased to attend work at the SJ-VA she was no longer 22 23 1 24 25 26 Plaintiff’s Opposition to Motion for Summary Judgment (docket No. 29) p. 6. See also, Initial Contact and Interview Sheet dated August 24, 2005 (docket No. 24-9) p. 1 which states that plaintiff “hasn’t been to work since June 17, 2005 because of stress.” Also, in her Application for Immediate Retirement plaintiff indicated that she was “[i]n (sic) leave without pay status.” (Docket No. 24-13) p. 13. 1 CIVIL NO. 06-1581 (RLA) Page 11 2 subject to the alleged discriminatory harassment underlying her 3 Rehabilitation Act complaint. Hence, the 45-day term for the EEO 4 initial contact regarding her alleged discriminatory harassment 5 commenced to run on June 17, 2005 and it elapsed prior to plaintiff’s 6 August 24, 2005 initial EEO contact. 7 Based on the foregoing, plaintiff’s claim based on a hostile 8 environment is hereby DISMISSED. 9 HIPAA 10 In the complaint plaintiff also mentions that Ms. Leon allegedly 11 accessed and/or received medical information regarding plaintiff’s 12 health conditions and treatment without her authorization on at least 13 three separate occasions. 14 HIPAA was enacted to ensure the confidentiality of health 15 information particularly given the developments in electronic 16 communications. In order to ensure compliance, the statute includes 17 both civil and criminal penalties for improper disclosure of 18 protected information. Further, HIPAA specifically delegates 19 enforcement to the Secretary of Health and Human Services. 20 All courts which have addressed the issue have consistently held 21 that HIPAA does not provide for a private cause of action to 22 individuals protected by the statute. Acara v. Banks, 470 F.3d 560, 23 571 (5th Cir. 2006); Butler v. Illinois Dep’t of Transp., 533 24 F.Supp.2d 821, 827 (N.D.Ill. 2008); Buchanan v. Gay, 491 F.Supp.2d 25 483, 497 (D.Del. 2007); Agee v. United States, 72 Fed. Cl. 284, 289 26 1 CIVIL NO. 06-1581 (RLA) Page 12 2 (Fed.Cl. 2006); Johnson v. Quander, 370 F.Supp.2d 79, 100 (D.D.C. 3 2005); Valentin Muñoz v. Island Fin. Corp., 364 F.Supp.2d 131, 136 4 (D.P.R. 2005). 5 Rather, relief is limited to enforcement of the statute by the 6 Secretary of Health and Human Services as specifically provided for 7 in the statute. Acara, 470 F.3d at 571; Agee, 72 Fed. Cl. at 289; 8 Johnson, 370 F.Supp.2d at 100; Valentin Muñoz, 364 F.Supp.2d at 136. 9 Accordingly, plaintiff is precluded from asserting breach of the 10 HIPAA privacy provisions in this case for we lack subject matter 11 jurisdiction to entertain any such individual claims. See Acara, 470 12 F.3d at 572 (“[w]e hold there is no private cause of action under 13 HIPAA and therefore no federal subject matter jurisdiction over 14 [plaintiff’s] asserted claims”); Johnson, 370 F.Supp.2d at 100 15 (“because no private right of action exists under the HIPAA, this 16 Court does not have subject matter jurisdiction over this claim”). 17 See also, Valentin Muñoz, 364 F.Supp.2d at 136. 18 In her memorandum plaintiff argues that the alleged HIPAA 19 violations were “raised in the complaint as evidence of the 20 harassment”2 she was allegedly subjected to at the SJ-VA. If this were 21 the case these allegations have become moot inasmuch as plaintiff’s 22 harassment claim has been dismissed for failure to timely contact an 23 EEO counselor. 24 25 26 2 Plaintiff’s Opposition (docket No. 29) p.2. 1 CIVIL NO. 06-1581 (RLA) Page 13 2 CONCLUSION 3 Based on the foregoing, Defendant’s Motion for Summary Judgment 4 (docket No. 23)3 is GRANTED. 5 Accordingly, plaintiff’s claims for alleged failure to 6 accommodate and for harassment under the Rehabilitation Act are 7 DISMISSED for failure to timely approach an EEO counselor. 8 It is further ORDERED that plaintiff’s claim under HIPAA is 9 DISMISSED for lack of subject matter jurisdiction. 10 Judgment shall be entered accordingly. 11 IT IS SO ORDERED. 12 San Juan, Puerto Rico, this 18th day of February, 2009. 13 14 S/Raymond L. Acosta RAYMOND L. ACOSTA United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 3 See Defendant’s Memorandum of Law (docket No. 25); Plaintiff’s Opposition (docket No. 29); Defendant’s Reply (docket No. 32) and Plaintiff’s Counter Reply (docket No. 36).
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