Gonzalez v. Potter, No. 3:2007cv01118 - Document 76 (D.P.R. 2009)

Court Description: ORDER granting in part and denying in part 50 motion for summary judgment. Signed by Judge Gustavo A. Gelpi on 3/31/09. (CSL)

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Gonzalez v. Potter Doc. 76 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 MAGDALENA GONZALEZ-RODRIGUEZ, 4 Plaintiffs, 5 6 7 v. CIVIL NO. 07-1118 (GAG)(BJM) JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, 8 Defendants. 9 OPINION AND ORDER 10 11 Plaintiff, Magdalena González-Rodríguez (“González”), brought this action against her 12 employer, the United States Postal Service (“USPS”), alleging retaliation and disparate treatment 13 by reason of disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and 14 Title VII, 42 U.S.C. § 2000e et seq. González also alleges violations to the Family Medical Leave 15 Act of 1993, 29 U.S.C. § 2615, in the form of both interference and discrimination. Presently before 16 the court is USPS’s motion for summary judgment (Docket No. 50), González’s opposition thereto 17 (Docket No. 52), USPS’s subsequent reply (Docket No. 71), and González’s sur-reply (Docket No. 18 72). After reviewing the relevant facts and applicable law, the court GRANTS IN PART and 19 DENIES IN PART USPS’s motion for summary judgment (Docket No. 50). 20 I. Standard of Review for Summary Judgment & Local Rule 56 21 Summary Judgment is appropriate when “the pleadings, depositions, answers to 22 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 23 genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter 24 of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An issue is 25 genuine if ‘it may reasonably be resolved in favor of either party’ at trial, and material if it 26 ‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.’” Iverson 27 v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (citations omitted). 28 The moving party bears the initial burden of demonstrating the lack of evidence to support Dockets.Justia.com Civil No. 07-1118 (GAG)(BJM) 2 1 the non-moving party’s case. Celotex, 477 U.S. at 325. The nonmoving party must then “set forth 2 specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). If the court finds 3 that some genuine factual issue remains, the resolution of which could affect the outcome of the 4 case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 5 242, 248 (1986). When considering a motion for summary judgment, the court must view the 6 evidence in the light most favorable to the non-moving party (here, the plaintiff) and give that party 7 the benefit of any and all reasonable inferences. Id. at 255. Moreover, at the summary judgment 8 stage, the court does not make credibility determinations or weigh the evidence. Id. 9 In disputes involving questions of motive or intent, the movant’s burden is particularly 10 rigorous. Unsettled issues regarding motive and intent will often preclude summary judgment. See 11 Lipsett v. Univ. of P.R., 864 F.2d 881, 895 (1st Cir. 1988). Summary judgment may be appropriate, 12 however, if the non-moving party’s case rests merely upon “conclusory allegations, improbable 13 inferences, and unsupported speculation.” Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 14 17, 21 (1st Cir. 2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003)). 15 The court should deny summary judgment when the non-moving party “can point to specific facts 16 detailed in affidavits and depositions - that is, names, dates, incidents, and supporting testimony - 17 giving rise to an inference of discriminatory animus.” Lipsett, 864 F.2d at 895. 18 Local Rule 56(b) requires a party moving for summary judgment to file “a separate, short, 19 and, concise statement of material facts [. . .] as to which the moving party contends there is no 20 genuine issue of material fact to be tried.” D.P.R. L.R. 56(b). The movant must support each 21 statement with a citation to the record. Id. The non-movant has a corresponding obligation to 22 submit with its opposition “a separate, short, and concise statement of material facts” in which it 23 admits, denies, or qualifies the moving party’s facts with reference to each numbered paragraph of 24 the moving party’s statement. See D.P.R. L.R. 56(c). Additionally, the nonmoving party must 25 support each denial or qualification with a record citation. Id. Similarly, Local Rule 56(d) requires 26 that a party replying to the opposition to a motion for summary judgment “submit with its reply a 27 separate, short, and concise statement of material facts which shall be limited to any additional facts 28 submitted by the opposing party.” The reply to the opposition to a motion for summary judgment Civil No. 07-1118 (GAG)(BJM) 3 1 is subject to the same requirements as the opposition to a motion for summary judgment: specific 2 reference to each numbered paragraph of the opposing party’s statement and support of each denial 3 or qualification through record citations. See D.P.R. L.R. 56(d). 4 While a party’s failure to comply with these rules does not automatically warrant the granting 5 or denial of summary judgment, “parties ignore [the rules] at their peril.” Ruiz Rivera v. Riley, 209 6 F.3d 24, 28 (1st Cir. 2000). The First Circuit has repeatedly held that the district court is justified 7 in deeming one party’s submitted uncontested facts to be admitted when the other party fails to file 8 an opposition in compliance with Local Rule 56. See, e.g., Fontanez-Nunez v. Janssen Ortho LLC, 9 447 F.3d 50, 55 (1st Cir. 2006); Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 4 (1st Cir. 2003); 10 Corrada-Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 43-44 (1st Cir. 2001); see also D.P.R. L.R. 11 56(e) (declaring that facts not properly controverted “shall be deemed admitted”). 12 In this case, USPS complied with Local Rule 56(b) by filing a separate statement of 13 uncontested facts with proper references to the record. See Docket No. 48. González subsequently 14 filed an opposing statement of material facts, which was also properly supported, per the Local Rule. 15 See Docket No. 54, 1-32. González’s oppposition, however, also included an additional statement 16 of uncontested facts, set forth in separate numbered paragraphs and supported by record citations 17 as allowed by subsection (c) of Local Rule 56. See Docket No. 54, 32-51. USPS, in turn, filed a 18 reply memorandum of law in support of its summary judgment motion, but failed to submit a 19 separate statement of material facts to supplement it. See Docket No. 71. If USPS wished to 20 controvert any of the additional facts submitted by González in her opposition, its reply statement 21 had to “deny or qualify such additional facts by reference to the numbered paragraphs of the 22 opposing party’s statement of material facts and unless a fact is admitted, [the reply statement had 23 to] support each denial or qualification by a record citation as required by subsection (c) of [Local 24 Rule 56].” D.P.R. L.R. 56(d). USPS failed to deny or qualify González’s additional facts in the 25 manner required by Local Rule 56(d). Therefore, this court shall deem admitted such additional 26 27 28 Civil No. 07-1118 (GAG)(BJM) 1 material facts that are properly supported.1 2 II. 4 Relevant Material Facts and Procedural Background 3 Consistent with the summary judgment standard, the court states the facts in the light most 4 favorable to plaintiffs. See Iverson, 452 F.3d at 98. Additionally, in accordance with Local Rule 5 56, the court credits only facts properly supported by accurate record citations. See D.P.R. L.Civ.R 6 56(e). The court has disregarded all argument, conclusory allegations, speculation, and improbable 7 inferences disguised as facts. See Forestier Fradera, 440 F.3d at 21; Medina-Muñoz v. R.J. Reynolds 8 Tabacco Co., 896 F.2d 5, 8 (1st Cir. 1990). 9 González began working for USPS in October of 1977, in Queens, New York. In 2000 she 10 became an Administrative Clerk in the Expedited Services Office, in Carolina, Puerto Rico. She 11 worked there until June 2006, when she appears to have been transfered to a different office. 12 Between March 2005 and June 2006, González was under the direct supervision of Sandra Figueroa 13 (“Figueroa”), who was the Expedited Service Specialist at the Carolina office. Also under 14 Figueroa’s direct supervision were Alida Rivera and Frank Trinidad, who held the same position as 15 González. 16 In May 2005 and January 2006, González was diagnosed with severe persistent asthma. She 17 submitted certifications from her health care provider to that effect and obtained approval for 18 “Family Leave” (or “FMLA leave”) on August 25, 2005 and on January 26, 2006. González’s 19 asthma was categorized by the FMLA Coordinator as a “Chronic Condition Requiring Treatment.” 20 González was approved for FMLA leave from August 25 to December 30, 2005, and from January 21 26, 2006 to January 26, 2007. The certifications from her health care provider indicate that during 22 periods of asthma exacerbation, which can last aproximately five to six hours, González is unable 23 to perform her work duties. González asserts that her condition substantially impairs her ability to 24 breathe and speak, and that when she is experiencing an asthma attack as a result of emotional stress 25 and other environmental factors she has to concentrate on inhaling, without speaking. 26 27 1 28 The court denies plaintiff’s request to strike defendant’s reply memorandum in its entirety from the record. See Docket No. 72. Civil No. 07-1118 (GAG)(BJM) 5 1 In 2005 González applied for the Caribbean District Associate Supervisor Program (“ASP”), 2 which trains USPS employees for first-time supervisory positions. On October 7, 2005, Daisy 3 García, ASP coordinator, wrote González to inform her that she had passed the ASP exam, as she 4 obtained a mark of at least “minimal” on all three parts of the test: “Mathematical Computation,” 5 “Reasoning Skills,” and “Written Communication.” On November 8, 2005, González was 6 interviewed by the Review Committee for the Caribbean District ASP, composed of four 7 management-level employees: Michael Mosca (Manager of Distribution Operations at NY-ISC, in 8 Jamaica, New York), Betty Peek (Labor Relations Specialist, assigned to the Triboro District Labor 9 Relations Department, in Brooklyn, New York), Vernon Ryland (Manager of Distribution 10 Operations at the Brooklyn Processing and Distribution Center, in Brooklyn, New York), and Phyllis 11 Morrissey (Manager of Customer Services at Rego Park Station, in Flushing, New York, and 12 Chairperson of the Review Committee). After the interview, on November 30, 2005, González 13 received a letter from the manager of the training division informing her that she was not selected 14 for the program. González requested additional information about her non-selection, and on January 15 18, 2006, Phyllis Morrissey wrote González a letter indicating that she had been eliminated from the 16 application process because she failed to demonstrate the required “human relations” skill criterion 17 during the interview phase. 18 On February 13, 2006, González contacted the USPS’s Equal Employment Opportunity 19 (“EEO”) Office and requested a copy of the PS-Form 2564-A, entitled “Information for Pre- 20 Complaint Counseling.” In her PS-Form 2564-A, dated February 28, 2006, González wrote that she 21 was alleging discrimination in the form of “[r]etaliation, reprisal, [and] disparate treatment.” The 22 form invites the employee to identify the particular kind of discrimination that he or she is alleging 23 by checking the box next to each applicable category: race, color, religion, national origin, sex, age, 24 retaliation, or disability. In her form, González only marked the box for “retaliation,” and attached 25 a letter where she alleged acts of retaliation and disparate treatment due to her prior EEO activity. 26 Specifically, González made reference to a prior EEO case which was finalized by settlement on 27 February 5, 2005, and wrote that she was denied the opportunity to participate in the ASP as a result 28 of this activity, though she was well qualified. González also alleged that she was also denied the Civil No. 07-1118 (GAG)(BJM) 6 1 opportunity to serve as Acting Expedited Services Specialist on the days when Figueroa was away 2 from the office. 3 On March 24, 2006, Figueroa made an entry in González’s “Employee Key Indicators 4 Report” (“Key Indicators Report”) to the effect that it was her intention to conduct a Predisciplinary 5 Interview (“PDI”) with González regarding her attendance record. In a declaration made under 6 penalty of perjury, Figueroa states that, in the first four months of 2006 (January 1, 2006 through 7 April 27, 2006), González had thirteen unscheduled absences. She further states that in 2005 8 González had twenty six unscheduled absences, of which only eight were FMLA-protected. In 9 contrast, González contends that, prior to being informed that she would face disciplinary procedures 10 in 2006, she had twelve justified absences, which were erroneously labeled as “unscheduled” by 11 Figueroa. Of those twelve, four were for González’s enjoyment of her annual FMLA leave and had 12 been requested in advance. González further contends that her other absences were attributtable to 13 the intermittent sick leave allowed under FMLA for treatment of her condition, and should not have 14 been marked as “unscheduled” in her official records. Also, González states that Figueroa required 15 her to provide medical documentation to prove that her absences were justified, when no such 16 requirement was made of the other two employees under Figueroa’s supervision. To counter this 17 statement, Figueroa asserts that she implemented company policy evenly to all employees, by 18 requiring corroborating medical documentation whenever absences were not scheduled in advance. 19 On April 27, 2006, González informed Figueroa that she had an appointment with an EEO 20 Counselor regarding her EEO case. On May 1, 2006, the Pre-Disciplinary Interview between 21 Figueroa and González was conducted. In the meantime, EEO Counselor Nancy Rivera (“Rivera”) 22 investigated the allegations in González’s pre-complaint counseling form. On May 9, 2006, 23 González amended her pre-complaint counseling form to include the allegation that she was denied 24 overtime on Saturdays because of her prior EEO activity and disability, and was issued a PDI for 25 failure to be regular in attendance, even though her absences were covered under the FMLA. That 26 same day, González received a letter from EEO Field Operations regarding the precomplaint 27 counseling phase, documenting her allegations and stating that “management denies discrimination.” 28 A few months later, González filed a PS Form 2565, entitled “EEO Complaint of Civil No. 07-1118 (GAG)(BJM) 7 1 Discrimination in the Postal Service” (“EEO Complaint”). In her EEO Complaint, dated May 19, 2 2006, González once again marked the box for discrimination in the form of retaliation. However, 3 in the statement of facts that she attached to the EEO Complaint, González states that after seeking 4 pre-complaint counseling2 she felt harassed, intimidated, and highly scrutinized by Figueroa 5 regarding her disability and physical health condition. Her attached statement also indicates that 6 Figueroa insisted that González provide original medical documentation to justify her disability- 7 related absences, when no such requirement was made of other co-workers and FMLA leave status 8 had been previously approved for González’s job-related medical condition. 9 On May 24, 2006, an inquiry report was prepared by Rivera. On June 13, 2006, the USPS 10 sent González an “Acceptance of Complaint” notice, wherein the scope of USPS’s investigation was 11 defined as based on the allegation that González suffered retaliation upon the following events: (1) 12 receipt of letter eliminating González from the ASP program; (2) continuous denial of opportunity 13 to work as Acting Express Mail Service Expeditor; (3) termination of overtime work opportunities; 14 and (4) issuance of PDI for failure to be regular in attendance. On November 6, 2006, USPS issued 15 its “Notice of Final Agency Decision,” holding that González had failed to prove that she was 16 subject to retaliation. USPS’s final decision did not address González’s claim of harassment due 17 to her disability. 18 On February 9, 2007, González filed a complaint against USPS alleging retaliation and 19 disparate treatment by reason of disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. 20 § 794 et seq., and Title VII, 42 U.S.C. § 2000e et seq. González also alleges violations to the Family 21 Medical Leave Act of 1993, 29 U.S.C. § 2615, in the form of both interference and discrimination. 22 Specifically, González claims that because of her medical condition and previous EEO activity, she 23 was given pre-disciplinary talks and negative attendance evaluations that were made part of her 24 25 2 26 27 28 The attached letter to the administrative charge refers to the filing of “an EEO complaint,” but points to February 2006 as the approximate date of such filing. See Docket No. 48-4, ¶ 8. The court interprets this to mean the commencement of the complaint process, which involved precomplaint counseling, as the record reflects that it was on February 28, 2006 that González filed PS Form 2564-A, “Information for Pre-complaint Counseling.” See Docket No. 48-3. Civil No. 07-1118 (GAG)(BJM) 8 1 computerized record and which affected her possibilities for transfers and upward mobility. USPS 2 moved for summary judgment on July 8, 2008 (Docket Nos. 29, 30, 31). González filed a motion 3 requesting further discovery (Docket No. 36), which was denied (Docket No. 45). However, per the 4 court’s orders (Docket No. 45, 49), USPS filed a revised motion for summary judgment on August 5 26, 2008 (Docket Nos. 47, 48, 50). González opposed USPS’s motion (Docket No. 52, 54), USPS 6 replied (Docket No. 71), and González sur-replied (Docket No. 72). 7 III. Discussion 8 Defendant USPS moves for summary judgment on the grounds that: González failed to 9 satisfy Title VII’s administrative exhaustion requirement as regards her disability discrimination 10 claim; González has failed to establish a prima facie case of retaliation or disability discrimination; 11 and there is no claim to reasonable accomodation on the facts of this case. The court will examine 12 these grounds to determine whether USPS has established that there is no genuine issue of material 13 fact and that it is entitled to a judgment as a matter of law. 14 A. 15 Title VII requires an employee to file an administrative charge as a prerequisite to 16 commencing a civil action for employment discrimination. See 42 U.S.C. § 2000e-5(f). The 17 purpose of that requirement is to provide the employer with prompt notice of the claim and to create 18 an opportunity for early conciliation. Fantini v. Salem State College, 2009 WL 428486 at *3-5 (1st 19 Cir. 2009) (citing Powers v. Grinnell Corp., 915 F. 2d 34, 37 (1st Cir. 1990)). “The scope of the 20 civil complaint is accordingly limited to the charge filed with the EEOC and the investigation which 21 can reasonably be expected to grow out of that charge.” Fantini, 2009 WL 428486 at *3 (quoting 22 Powers, 915 F. 2d at 38); see also Johnson v. General Electric, 840 F. 2d 132, 139 (1st Cir. 1988). 23 In Powers v. Grinnell Corp., the First Circuit described what it called the “scope of the charge” rule: 24 An administrative charge is not a blueprint for the litigation to follow. See EEOC v. General Electric Co., 532 F.2d 359, 364 (4th Cir. 1976) (quoting EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455 (5th Cir. 1975)) (“The charge is not to be treated as a common-law pleading that strictly cabins the investigation that results therefrom, or the reasonable cause determination that may be rested on that investigation. The charge merely provides the EEOC with ‘a jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices.’”). See also Graniteville Co. v. EEOC, 438 F.2d 32, 38 (4th Cir. 1971) (purpose of charge is to initiate EEOC investigation, “not to state sufficient facts to 25 26 27 28 Failure to Exhaust Administrative Remedies Civil No. 07-1118 (GAG)(BJM) 1 2 3 4 5 9 make out a prima facie case”); Sanchez, 431 F.2d at 465 (“[T]he purpose of a charge of discrimination is to trigger the investigatory and conciliatory procedures of the EEOC.”). Thus, “the exact wording of the charge of discrimination need not ‘presage with literary exactitude the judicial pleadings which may follow.’” Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir. 1971) (quoting Sanchez, 431 F.2d at 466). Rather, the critical question is whether the claims set forth in the civil complaint come within the “scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Sanchez, 431 F.2d at 466; Babrocky, 773 F.2d at 863; Miller, 755 F.2d at 23-24; Less, 705 F.Supp. at 112. 6 7 Powers, 915 F.2d at 38-39; see also Lattimore v. Polaroid Corporation, 99 F. 3d 456, 464 (1st Cir. 8 1996). What can “reasonably be expected to grow out of the charge of discrimination” must be 9 determined by considering “the plain import of the administrative charge as a whole” and “the 10 breadth of the administrative inquiry reasonably required to investigate the charge.” Id. at 38. 11 Recently, the First Circuit followed this precedent and rejected the argument that plaintiff’s “one 12 passing mention” of gender discrimination in the last paragraph of her five page attachment to the 13 administrative complaint could not satisfy the exhaustion requirement because the administrative 14 investigaton did not address that particular claim. Fantini, 2009 WL 428486 at *3-5. The Fantini 15 court found that the plaintiff’s administrative charge sufficiently provided defendants with prompt 16 notice of the claims against them, including the gender discrimination claims under Title VII, 17 regardless of the district court’s finding that plaintiff’s gender discrimination claim had not been 18 addressed by either party nor by the administrative agency prior to the filing of the federal complaint. 19 Id. at *3. 20 In the instant case, USPS argues that because González did not check the box for “disability” 21 in the pre-litigation counseling form or the EEO Complaint, and only checked the box for 22 “retaliation,” her claim for disability is barred for failure to exhaust administrative remedies. USPS 23 also contends that, since the administrative procedure did not take into account the charge of 24 discrimination, plaintiff cannot now bring the claim in federal court. The court disagrees. In making 25 its argument, defendant disregards the fact that plaintiff’s EEO complaint included an attached 26 statement of facts, which should be considered as part of the administrative charge. The fact that 27 USPS chose not to accept the discrimination claim for investigation at the administrative stage, 28 based on a highly technical reading of the adminstrative charge, should not preclude it from being Civil No. 07-1118 (GAG)(BJM) 10 1 alleged now in the federal complaint, if the court finds that adequate notice was given to the agency 2 through said charge. See Powers, 915 F.2d at 39 n.4 (quoting Schnellbaecher v. Basking Clothing 3 Co., 887 F.2d 124, 128 (7th Cir. 1989)) (“[I]t is not the scope of the actual investigation pursued that 4 determines what complaint may be filed, but what EEOC investigation could reasonably be expected 5 to grow from the original complaint.”); see also Oblesby v. Coca-Cola Bottling Co., 620 F.Supp. 6 1336, 1344 (N.D. Ill. 1985) (“What controls is not what the EEOC did but what it was given the 7 opportunity to do.”), cited in Powers, 915 F.2d at 39 n.4. Moreover, in cases where, as here, the 8 employee acted pro se, the administrative charge is liberally construed in order to afford the 9 complainant the benefit of any reasonable doubt. Lattimore, 99 F. 3d at 464. 10 After reviewing the adminsitrative charge filed by González, including the attached statement 11 of facts, this court finds that González’s charge sufficiently provided USPS with prompt notice of 12 the claims against them, including the disability discrimination claim under Title VII. González’s 13 administrative charge states that after seeking pre-complaint counseling she felt harassed, 14 intimidated, and highly scrutinized by Figueroa regarding her disability and physical health 15 condition. See Docket No. 48-4, ¶ 8. The charge further states that Figueroa insisted that González 16 provide original medical documentation to justify her disability-related absences, when no such 17 requirement was made of other co-workers and FMLA leave status had been previously approved 18 for González’s job-related medical condition. Id. González also alleged in her adminsitrative charge 19 that Figueroa “is conducting a constructed effort and contorted scheme to discipline [her] [. . .] as 20 reprisal for the [sic] physical condition that is covered under the FMLA [. . .]” Id. at ¶ 12. Thus, 21 González mentions in her administrative charge alleged incidents of disparate treatment by her 22 supervisor with regard to her asthma-related absences, vis-a-vis her other co-workers, and 23 specifically states that she believes her supervisor was taking additional disciplinary measures 24 against her because of her disability. See Powers, 915 F.2d at 37. 25 Consistent with these allegations, González’s complaint includes an averment that 26 “notwithstanding a [. . .] Family Medical Leave Act request to attend [sic] her chronic condition 27 and/or medical appointments, Ms. Figueroa arbitrarily requested additional medical documentation 28 when there is a certification [sic] on file under the [FMLA] [. . .] [T]hese and other acts of Civil No. 07-1118 (GAG)(BJM) 11 1 discrimination and retaliation which have occured under Ms. Figueroa’s supervision include, but are 2 not limited to requiring additional medical documentation only to the plaintiff, while the rest of the 3 employees were not required to present such medical documentation.” Docket No. 1, ¶ 38; see also 4 id. at ¶ 40. 5 The court finds that “the claims set forth in the civil complaint come within the ‘scope of the 6 EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’” 7 Powers, 915 F.2d at 38-39 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 8 1970)), quoted in Fantini, --- F.3d ----, 2009 WL 428486 at *5. Therefore, USPS’s motion for 9 summary judgment as to the discrimination claim for failure to exhaust administrative remedies is 10 DENIED. 11 B. 12 To establish a prima facie case of retaliation, plaintiff has to prove that (1) she engaged in 13 protected conduct; (2) she suffered an adverse employment action; and (3) the adverse action was 14 causally connected to the protected activity. Fantini, --- F.3d ----, 2009 WL 428486 at *8; see also 15 42 U.S.C. § 2000e-3; Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 22 (1st Cir. 2002); 16 Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998). Once a plaintiff 17 satisfies her prima facie burden, the defendant must produce a legitimate, nondiscriminatory reason 18 for the adverse action. The ultimate burden then falls on the plaintiff to show that the employer’s 19 articulated reason was, in fact, pretext covering up retaliation. Wright v. CompUSA, Inc., 352 F.3d 20 472, 478 (1st Cir. 2003). For a retaliation claim to “‘survive a motion for summary judgment, the 21 plaintiff must point to evidence in the record that would permit a rational factfinder to conclude that 22 the employment action was retaliatory.’” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 23 F.3d 46, 57 (1st Cir.2000) (quoting King v. Town of Hanover, 116 F.3d 965, 968 (1st Cir.1997)). 24 USPS does not appear to dispute that González engaged in conduct that is protected by Title 25 VII when she filed her administrative charge. It maintains, however, that González never suffered 26 “adverse employment actions” as a result of that conduct. In the alternative, accepting arguendo that 27 González did suffer adverse employment actions, USPS contends that those actions are not causally 28 connected to González’s protected activity, so that they cannot give rise to a retaliation claim. The Retaliation Claims Civil No. 07-1118 (GAG)(BJM) 12 1 First Circuit has held that “[t]o be adverse, an action must materially change the conditions of 2 plaintiffs’ employ.” Gu v. Boston Police Dept., 312 F. 3d 6, 14 (1st Cir. 2002). “Material changes 3 include ‘demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted 4 negative job evaluations, and toleration of harassment by other employees.’” Id. (citing Hernández- 5 Torres, 158 F. 3d at 47). Whether an employment action is “adverse,” and therefore actionable, is 6 gauged by an objective standard. Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.1996) (“Work places 7 are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or 8 omission does not elevate that act or omission to the level of a materially adverse employment 9 action.”). Here, González asserts a separte retaliation claim based on each of the following allegedly 10 adverse employment actions: (1) elimination from the ASP application process; (2) negative 11 attendance evaluations and disciplinary measures; (3) denial of Saturday overtime during a particular 12 work project in April and May 2006 and denial of opportunity to serve as Acting Expedited Services 13 Specialist while Figueroa was away. As discussed below, each claim fails. 14 1. 15 As to González’s elimination from the ASP application process, the court understands that, 16 even if such action constitutes an adverse employment action because it deprives plaintiff of an 17 opportunity to achieve higher-ranking positions within the USPS, González has failed to offer any 18 admissible evidence to prove a causal link between the adverse action and her previous EEO activity. 19 González alleges that the members of the ASP Review Committee were briefed by Daisy García, the 20 ASP Coordinator, as to her prior EEO activity. In support of this contention, González offers only 21 her own statement under penalty of perjury that, while Daisy García was meeting the Committee 22 members before her interview, she overheard her name mentioned four times by persons inside the 23 interview room. Docket No. 54-2, ¶ 4-6. González argues that, because Daisy García had 24 knowledge of her 2005 EEO charge, and was meeting with the Committee members before her 25 interview, the mention of her name necessarily means that García was briefing the Committee 26 members as to her prior EEO activity. The court understands that these conclusions are entirely 27 speculative and inadmissible as proof that Daisy García in effect briefed the Committee members 28 as to González’s EEO history. In contrast, all of the Committee members have made declarations Elimination from the ASP Application Process Civil No. 07-1118 (GAG)(BJM) 13 1 under penalty of perjury stating that hey had no knowledge of plaintiff’s EEO case history prior to 2 the interview or during their consideration of her application to the ASP. See Docket Nos. 31-3, 31- 3 4, 31-5, 31-6. 4 González also alleges in her complaint that the Committee members, as administrative-level 5 employees, had access to the system where EEO records are kept and, therefore, were necessarily 6 privvy to her EEO background. In Plaintiff’s Additional Statement of Uncontroverted Material Facts 7 (Docket No. 54), González uses as supporting evidence for the contention that all administrative- 8 level employees have access to EEO records the declaration of Eriberto Cedeño (Docket No. 31-7). 9 That document, however, was withdrawn from the record, after plaintiff objected to it as 10 unnanounced expert testimony. See Docket No. 36; Docket No. 45 (“The court accepts defendant’s 11 offer to withdraw Cedeño’s declaration and the attached exhibits.”). The only other evidence offered 12 by González to prove her allegation consists, once again, of her own declarations to the effect that 13 management-level employees can access the system where EEO information is kept. González, 14 however, cannot assert first-hand knowledge to this effect because she is not an administrative-level 15 employee at USPS, and the record does not reflect corroborating testimony from any such employee. 16 Meanwhile, all the members of the Review Committee have stated under penalty of perjury that they 17 do not have access to the USPS EEO database and that they deny ever having searched it to see if 18 González had any prior EEO activity. See Docket Nos. 71-4, 71-5, 71-6, 71-7. 19 The court, thus, finds González’s proffer in this respect insufficient to establish a prima facie 20 case of retaliation, as she is “lacking in the concrete documentation necessary to prove the causal link 21 between her protected activity and her retaliatory treatment.” See Ramos Roche Prods., Inc., 936 22 F. 2d 43, 49 (1st Cir. 1991). Accordingly, the court must GRANT summary judgment as to 23 plaintiff’s Title VII claims of retaliation stemming from her elimination from the ASP application 24 process. 25 2. 26 As to Figueroa’s negative attendance evaluations and the disciplinary measures she took 27 against González, the court understands that there is an issue of material fact as to whether or not 28 the same were warranted. Figueroa and González have given conflicting declarations in regards to Negative Attendance Evaluations and Disciplinary Measures Civil No. 07-1118 (GAG)(BJM) 14 1 the validity of Figueroa’s characterization of González’s absences as “unscheduled” and whether or 2 not the same were covered under FMLA. This issue will be addressed by the court forthwith. 3 However, asuming arguendo that they were unwarranted and are, therefore, adverse employment 4 actions, plaintiff still has not proffered sufficient evidence of a causal link between her prior EEO 5 activity and those employment actions. 6 The record reflects that Figueroa decided to conduct the PDI on March 24, 2006, prior to 7 becoming aware of González’s 2006 EEO charge on April 27, 2006, when González informed 8 Figueroa that she had an appointment with an EEO Counselor. Thus, González’s most recent EEO 9 charge, the charge which gave rise to the present case, could not be the source of Figueroa’s alleged 10 retaliatory animus because Figueroa’s disciplinary decisions pre-date her knowledge of the protected 11 activity. Meanwhile, González’s EEO activity prior to the 2006 administrative charge dates back 12 to February 2005, at the latest, which is when settlement was reached in that case. This means that 13 more than a year had passed between that activity and the disciplinary employment action at issue 14 in the present action, making the inference of a causal relationship too tenuous. As this is the sum 15 and substance of plaintiff’s retaliation evidence in regard to the negative attendance evaluations and 16 disciplinary actions taken by Figueroa, it is insufficient to forestall summary judgment. Benoit v. 17 Technical Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003); see also Ramírez Rodríguez v. Boehringer 18 Ingelheim Pharmaceuticals, Inc., 425 F. 3d 67, 85 (1st Cir. 2005) (holding that a two month period 19 between termination from employment and filling of an age discrimination complaint did not 20 establish a causal connection so as to violate Age Discrimination in Employment Act’s retaliation 21 provision); Dressler v. Daniel, 315 F.3d 75, 80 (1st Cir. 2003) (“[T]he inference of a causal 22 connection becomes more tenuous with time.”); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st 23 Cir. 1991) (observing that a nine-month period between the protected conduct and adverse action 24 suggested the absence of any causal connection). Therefore, the court GRANTS USPS’s summary 25 judgment motion as to González’s retaliation claims based on the negative attendance evaluations 26 and disciplinary measures taken by Figueroa. 27 28 3. Denial of Saturday Overtime and of Opportunity to Serve as Acting Expedited Services Specialist Civil No. 07-1118 (GAG)(BJM) 15 1 Finally, as to the denial of Saturday overtime and of the opportunity to serve as Acting 2 Expedited Services Specialist while Figueroa was away, the court notes that both actions could 3 constitute adverse employment actions. However, in the instant case, the denial of Saturday 4 overtime does not rise to the level of an adverse action because during the two month period during 5 which the special project was running, González was the only clerk who received overtime work on 6 Saturdays. The fact that the overtime work did not continue after April 27, 2006 is immaterial, since 7 none of the employees were offered such work after that date. Similarly, not offering González the 8 opportunity to serve as Acting Expedited Services Specialist cannot constitute an adverse 9 employment action in this case, because there is no proof that her non-selection for this position is 10 attributable to her EEO activity. In fact, it is González’s contention that she had never been offered 11 this position, either before or after her various EEO cases were filed and/or settled. Cf. DeNovellis 12 v. Shalala, 124 F. 3d 298, 206 (1st Cir. 1997) (holding that divesting an employee of assignments 13 and responsabilities establishes an adverse employment action). For these reasons, the court also 14 GRANTS USPS’s motion for summary judgment as to the retaliation claims based on the denial of 15 overtime and of the opportunity to serve as Acting Expedited Services Specialist. 16 C. 17 A plaintiff asserting a disability-based disparate treatment claim must make the following 18 prima facie showings: that (1) she suffers from a disability or handicap, as defined by the Americans 19 with Dissabilities Act (“ADA”);3 (2) she was nevertheless able to perform the essential functions of 20 her job, either with or without reasonable accomodation; and (3) the defendant took an adverse 21 employment action against her because of, in whole or in part, her protected disability. Tobin v. 22 Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir.2005); see also McDonnell Douglas Corp. v. 23 Green, 411 U.S. 792, 803 n.13 (1973) (acknowledging prima facie case varies depending on factual 24 situation); Wiener v. Polaroid Corp., 790 F. Supp. 363, 366 (D. Mass. 1992) (adapting fourth prong Disparate Treatment Claim 25 26 27 28 3 As a federal employee, González is covered under the Rehabilitation Act and not the ADA. Nevertheless, since the same standards apply to both the Rehabilitation Act and ADA, the court relies on precedent construing both statutes. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 12 n.1 (1st Cir.2004); see also Enica v. Principi, 544 F.3d 328, 338 n.11 (1st Cir. 2008). Civil No. 07-1118 (GAG)(BJM) 16 1 of prima facie case to specific alleged adverse employment action). Next, the burden of production 2 shifts to the employer who must articulate a legitimate, non-discriminatory reason for the adverse 3 employment action. At the final stage, the plaintiff must present sufficient evidence to demonstrate 4 that the employer’s proffered reason is a mere pretext and that the true reason is discriminatory. 5 Tobin, 433 F. 3d at 105. Ultimately, the court must decide “whether, viewing the aggregate package 6 of proof offered by [the plaintiff] and taking all inferences in [her] favor, [she] has raised a genuine 7 issue of fact as to whether the [adverse employment action] was motivated by [. . .] discrimination.” 8 Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 431 (1st Cir. 2000). 9 USPS contends that González cannot be “disabled” within the meaning of the Rehabilitation 10 Act because she does not have a “significant limitation” of even one “major life activity.” The 11 definition of disability, under the ADA, is “(A) a physical or mental impairment which substantially 12 limits one or more of an individual's major life activities; (B) a record of such impairment; or (C) 13 being regarded as having such impairment.” 42 U.S.C. § 12102(2); see also 29 C.F.R. § 1630.2(g). 14 A plaintiff must at least satisfy one of the three alternative definitions. Corujo-Martí v. Triple S, 15 Inc., 519 F. Supp. 2d 201, 212 (D.P.R. 2007). Under the second definition of disability, “the 16 recorded impairment must be one that substantially limited a major life activity.” Santiago Clemente 17 v. Executive Airlines, Inc., 213 F. 3d 25, 33 (1st cir. 2000); see also Bailey v. Georgia-Pacific Corp., 18 306 F. 3d 1162, 1169 (1st Cir. 2002) (“A record or history of an impairment is not sufficient to show 19 disability; the record must be of an impairment [that] substantially limited a major life activity.”). 20 In the present case, there is evidence that shows that USPS had a record of González’s 21 condition, since it had approved her Family Leave after classifying her asthma as a “Chronic 22 Condition Requiring Treatment.” Moreover, González asserts that her condition substantially 23 impairs her ability to breathe and speak, and that when she is experiencing an asthma attack as a 24 result of emotional stress and other environmental factors, she has to concentrate on inhaling, 25 without speaking. The Equal Employment Opportunity Commission has classified breathing and 26 speaking as “major life activities” for purposes of the ADA. See 29 C.F.R. § 1630.2(I); see also 27 Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) (holding that the phrase “major 28 life activities” refers to activities that are of central importance to daily life). USPS cites an Civil No. 07-1118 (GAG)(BJM) 17 1 unpublished opinion from the Second Circuit, in support of the proposition that asthma does not 2 invariably impair a major life activity. Burke v. Niagara Mohawk Power Corp., 142 Fed. Appx. 527, 3 529 (2nd Cir. 2005) (finding that plaintiff’s asthma did not impair a major life activity -i.e. 4 breathing- because attacks were infrequent, daily symptoms could be controlled with medication, 5 and plaintiff did not show that asthma affected her ability to work in general); see also Muller v. 6 Costello, 187 F. 3d 298, 314 (2nd Cir. 1999). What this means is that the determination whether the 7 plaintiff has a disability must be done on a case-by-case basis. Calero-Cerezo, 355 F. 3d at 20 (citing 8 Toyota Motor Mfg., Ky, Inc., 534 U.S. at 198). In the instant case, the certifications from 9 González’s health care provider indicate that during periods of asthma exacerbation, which can last 10 aproximately five to six hours, González is unable to perform her work duties. Those certifications 11 also indicate that González’s “asthma is variable,” but that she suffers attacks on a weekly basis. See 12 Docket No. 54-14. Though the above-cited Second Circuit caselaw presented by USPS carries 13 persuasive value, the court must construe the facts in the light most favorable to the plaintiff. 14 Accordingly, it finds that there is, at the very least, an issue of material fact as to whether or not 15 González’s asthma-related breathing and speaking impairment constitutes a limitation on a major 16 life activity. 17 Notwithstanding the court’s conclusion on this point, González has failed to establish the 18 second prong of her prima facie case: that she is a qualified individual within the meaning of ADA. 19 In order to be a “qualified individual” under ADA, “the burden is on the employee to show: first, that 20 she possesses the requisite skill, experience, education and other job-related requirements for the 21 position, and second, that she is able to perform the essential functions of the position with or 22 without reasonable accommodation.” Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 23 (1st Cir.2000) (internal citations and quotation marks omitted) (emphasis added). “It is well settled 24 that an employer need not accommodate a disability by foregoing an ‘essential function’ of the 25 employment position.” Laurin v. Providence Hosp., 150 F.3d 52, 56 (1st Cir.1998) (internal 26 citations omitted). “An employer may base a decision that the employee cannot perform an essential 27 function on an employee's actual limitations, even when those limitations result from a disability.” 28 Calef v. Gillette Co., 322 F.3d 75, 86 (1st Cir.2003) (citing Leary v. Dalton, 58 F.3d 748, 753-54 (1st Civil No. 07-1118 (GAG)(BJM) 18 1 Cir.1995)). For the purposes of ADA, consideration is given to the employer's judgment as to what 2 functions of a job are essential. See 42 U.S.C. § 12111(8). The First Circuit recently held that 3 “attendance is an essential function of any job.” Ríos-Jiménez v. Principi, 520 F.3d 31, 42 (1st Cir. 4 2008) (holding that employee who frequently missed work was not a qualified individual able to 5 perform the essential functions of her job, either with or without a reasonable accommodation, as 6 required to support disability discrimination and reasonable accommodation claims under the 7 Rehabilitation Act). See also Leary v. Dalton, 58 F.3d 748 (1st Cir. 1995) (under Rehabilitation Act, 8 employee with excessive absences related to claimed disability was not qualified individual). “Gross 9 attendance problems can prevent a disabled person from being qualified for a position even when 10 the attendance problem is related in whole or in part to the disability.” Castro-Medina v. Procter & 11 Gamble Commercial Co., 565 F. Supp. 2d 343, 369 (D.P.R. 2008) (quoting 1 H.H. Perritt, Jr., 12 Americans With Disabilities Act Handbook, § 3.06[E] at 124 (4th ed. 2003)). 13 It is undisputed that González had been missing work due to her illness. In fact, by her own 14 admission she was absent at least twelve times within the first three months of 2006. Even if her 15 absenteeism was tied to her illness, her inability to come to work on a more regular basis is a 16 legitimate concern for her employer. “Simply put, ‘one who does not come to work cannot perform 17 any of his job functions, essential or otherwise.’” Castro-Medina, 565 F. Supp. 2d at 370 (quoting 18 Wimbley v. Bolger, 642 F. Supp. 481 (W.D.Tenn.1986), aff'd, 831 F.2d 298 (6th Cir. 1987). 19 Consequently, examining the facts in the light most favorable to the plaintiff, the court finds that she 20 failed to establish that she could perform her essential job functions within the meaning of the ADA. 21 In her opposition, González argues that her absences must be accomodated as covered by the FMLA. 22 Whether or not that is the case, the qualified individual requirement for a prima facie case of 23 disability discrimination must be met, with or without reasonable accomodation. See Perkins v. 24 Ameritech Corp, 161 Fed. Appx. 578, 581 (7th Cir. 2006) (holding as irrelevant that some of 25 plaintiff’s absences were caused by illness or potentially covered by the FMLA), cited in Castro- 26 Medina, 565 F. Supp. 2d at 370. 27 Having found that González failed to prove she is a qualified individual under ADA, the 28 court need not delve into the sufficiency of plaintiff’s proffer as to the third prong of her prima facie Civil No. 07-1118 (GAG)(BJM) 19 1 case. Summary judgment is hereby GRANTED as to plaintiff’s claims of disability disrimination 2 under the Rehabilitation Act and ADA. 3 C. Reasonable Accomodation Claim 4 In addition to prohibiting disparate treatment of individuals with disabilities, the 5 Rehabilitation Act and ADA “impose an affirmative duty on employers to offer a reasonable 6 accommodation to a disabled employee.” Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19-20 7 (1st Cir.2004); see also 42 U.S.C. § 12112(b)(5)(A); García-Ayala v. Lederle Parenterals, Inc., 212 8 F.3d 638, 646 n. 9 (1st Cir.2000) (“[T]he ADA does more than prohibit disparate treatment. It also 9 imposes an affirmative obligation to provide reasonable accommodation to disabled employees.”). 10 Reasonable accomodations may include “job restructuring, part-time or modified work schedules, 11 reassignment to a vacant position, [. . .] and other similar accomodations for individuals with 12 disabilities.” 42 U.S.C. §12111(9)(B). In order for a plaintiff to assert a claim for failure to 13 accommodate under the Rehabilitation act, she would have to prove: "(1) that she suffered from a 14 'disability' within the meaning of the statute; (2) that she was a qualified individual in that she was 15 able to perform the essential funcions of her job, either with or without a reasonable accommodation; 16 and (3) that, despite her employer's knowledge of her disability, the employer did not offer a 17 reasonable accommodation for the disability." Calero-Cerezo, 355 F.3d at 20. 18 In light of the court’s ruling that plaintiff has failed to prove she is a qualified individual 19 within the meaning of ADA, defendant’s motion for summary judgment is also GRANTED as to 20 the claim for reasonable accomodation. 21 D. Interference and Retaliation Claims under the FMLA 22 “The FMLA contains two distinct types of provisions: those establishing substantive rights 23 and those providing protection for the exercise of those rights.” Colburn v. Parker Hannifin/Nichols 24 Portland Div., 429 F.3d 325, 330 (1st Cir. 2005) (citing Hodgens v. General Dynamics Corp., 144 25 F. 3d 151, 159-60 (1st Cir. 1998). The first, which the First Circuit has described as “essentially 26 prescriptive, ‘set[s] substantive floors’ for conduct by employers, and creat[es] ‘entitlements’ for 27 employees.” Id. at 330 (quoting Hodgens, 144 F. 3d at 159). Such provisions, codified at 29 U.S.C. 28 § 2612, entitle eligible employees to, inter alia, “a total of 12 workweeks of leave” for “a serious Civil No. 07-1118 (GAG)(BJM) 20 1 health condition that makes the employee unable to perform the functions of [his] position.” 29 2 U.S.C. § 2612(a)(1)(D). With limited exceptions, see 29 C.F.R. §§ 825.214(b), 825.216, upon the 3 employee's return from a qualified leave, the employer must reinstate the employee to the same 4 position or an alternate position with equivalent pay, benefits, and working conditions, and without 5 loss of accrued seniority. Hodgens, 144 F.3d at 159 (citing 29 U.S.C. § 2614(a)(1); and 29 C.F.R. 6 § 825.100(c)); see also Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 32 (1st Cir.2003). The FMLA 7 also provides for “intermittent” leave, which allows an employee to take such leave intermittently, 8 “when medically necessary,” such as to attend appointments with a health care provider for necessary 9 treatment of a serious health condition. 29 U.S.C. § 2612(b); 29 C.F.R. § 825.117 (defining 10 requirements for intermittent leave). 11 In addition to the grant of substantive rights, the FMLA provides protection in the event an 12 employee is discriminated against for exercising those rights. See 29 U.S.C. § 2615(a)(1) & (2); 29 13 C.F.R. § 825.220.4 In particular, “[a]n employer is prohibited from discriminating against employees 14 [. . .] who have used FMLA leave.” 29 C.F.R. § 825.220(c). Nor may employers “use the taking of 15 FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary 16 actions.” 29 C.F.R. § 825.220(c). “An employer who flouts these rules can be held liable for 17 compensatory damages and, unless the violation occurred in good faith, additional liquidated 18 damages. [. . .] Appropriate equitable relief, such as reinstatement, also may be available.” Navarro 19 v. Pfizer Corp., 261 F.3d 90, 95 (1st Cir. 2001) (internal citations omitted). 20 To preserve the availability of these rights, and to enforce them, the FMLA creates two types 21 of claims: interference claims, in which an employee asserts that his employer denied or otherwise 22 interfered with his substantive rights under the Act, see 29 U.S.C. § 2615(a)(1), and retaliation 23 claims, in which an employee asserts that his employer discriminated against him because he 24 25 4 26 27 28 “It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). “It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). Civil No. 07-1118 (GAG)(BJM) 21 1 engaged in activity protected by the Act, see 29 U.S.C. § 2615(a)(1) & (2). To state a claim of 2 interference with a substantive right, an employee need only demonstrate by a preponderance of the 3 evidence that he was entitled to the benefit denied. Colburn, 429 F. 3d at 331 (citing Smith v. Diffee 4 Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960-61 (10th Cir. 2002); King v. Preferred Technical 5 Group, 166 F.3d 887, 891 (7th Cir. 1999)). In contrast, to succeed on a retaliation claim, an 6 employee must demonstrate that his employer intentionally discriminated against him in the form 7 of an adverse employment action for having exercised an FMLA right. King, 166 F.3d at 891. In 8 other words, a plaintiff bringing a retaliation claim faces the increased burden of showing that his 9 employer's actions “were motivated by an impermissible retaliatory or discriminatory animus.” Id. 10 When a plaintiff asserts a claim of retaliation under the FMLA, in the absence of direct evidence of 11 the employer's intent, the court must apply the same burden-shifting framework established by the 12 Supreme Court in McDonnell Douglas for evaluating Title VII discrimination claims. Hodgens, 144 13 F. 3d at 160. In order to establish a prima facie case of retaliation, an employee must prove that: (1) 14 she engaged in a statutorily protected activity; (2) she suffered an adverse employment decision; and 15 (3) the decision was causally related to the protected activity. 16 In the instant case it is undisputed that González was entitled to Family Leave, since USPS 17 had approved her FMLA status. What González contends is that Figueroa’s characterization of such 18 leave as “unscheduled,” and her requests for medical re-certifications justifying her medical leave 19 each time she saw a doctor, are in violation of the FMLA both as a violation of her substantive rights 20 and as reataliation for the exercise of those rights. 21 A review of the applicable regulations reveals that, “[w]hen the approximate timing of the 22 need for leave is not foreseeable, an employee must provide notice to the employer as soon as 23 practicable under the facts and circumstances of the particular case.” 29 C.F.R. § 825.303(a). It is 24 not a violation of the FMLA for USPS to require González to provide notice for her absences when 25 they are related to her asthma. The regulations provide that “[w]hen the need for leave is not 26 foreseeable, an employee must comply with the employer's usual and customary notice and 27 procedural requirements for requesting leave, absent unusual circumstances. For example, an 28 employer may require employees to call a designated number or a specific individual to request Civil No. 07-1118 (GAG)(BJM) 22 1 leave. However, if an employee requires emergency medical treatment, he or she would not be 2 required to follow the call-in procedure until his or her condition is stabilized and he or she has 3 access to, and is able to use, a phone.” 29 C.F.R. § 825.303(c). However, “employers cannot use 4 the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions 5 or disciplinary actions; nor can FMLA leave be counted under ‘no fault’ attendance policies.” 20 6 C.F.R. § 825.220(c) (emphasis added). USPS argues that Figueroa would implement company 7 policy uniformly, requiring a doctor’s note from any employee who’s absence was unscheduled (i.e. 8 not informed to their supervisor in advance) or who’s scheduled absence was classified as a doctor’s 9 visit. All absences that were not informed to Figueroa in advanced had to be marked as 10 “unscheduled” in the employee’s report, regardless of whether or not such absences were FMLA- 11 related. As pointed out by plaintiff, in as much as this constitutes a no-fault attendance policy it is 12 violative of the FMLA’s leave entitlement provisions. For this reason, the court DENIES 13 defendant’s motion for summary judgment as to the FMLA interference claim, in as much as there 14 is an issue of material fact as to whether or not USPS’s attendance policy was a no-fault attendance 15 policy in violation of FMLA entitlement provisions. 16 As for González’s claim of retaliation, it is undisputed that González meets the first prong 17 of the prima facie requirement, entitlement to Family Leave. As to the second and third prongs, 18 González has presented evidence that in October 2007 she was denied a transfer to the Tampa, 19 Florida division of USPS due to her “unacceptable attendance.” See Docket No. 54-12. The denial 20 of a transfer can constitute a materially adverse employment action under Hernández-Torres, 158 21 F. 3d at 47. There is also proof that in evaluating González's performance, Figueroa would take 22 plaintiff's condition into consideration, by making comments such as: "Mrs. González has a FMLA 23 case and she is using it to support her absentinsm [sic]." See Employee Key Indicators Report, 24 Docket No. 54-9. Additionally, the record reflects a discrepancy between Figueroa's and González's 25 characterization of the latters' absences that are covered by the FMLA, which has raised an issue as 26 to whether or not Figueroa was accurately reflecting the same in González's record. This proffer is 27 sufficient to raise an issue of material fact as to the causal link between the adverse employment 28 action and plaintiff’s exercise of her FMLA rights. Therefore, defendant USPS’s motion for Civil No. 07-1118 (GAG)(BJM) 23 1 summary judgment as to the FMLA discrimination claim is DENIED. 2 IV. Conclusion 3 For the aforementioned reasons, the court GRANTS IN PART and DENIES IN PART 4 USPS’s motion for summary judgment (Docket No. 50). The court hereby GRANTS USPS’s 5 motion for summary judgment with respect to the retaliation, disparate treatment, and reasonable 6 accomodation claims raised under Title VII and the Rehabilitation Act. The court DENIES 7 summary judgment as to plaintiff’s interference and retaliation claims under FMLA. 8 SO ORDERED. 9 In San Juan, Puerto Rico this 31st day of March, 2009. 10 11 S/Gustavo A. Gelpí 12 GUSTAVO A. GELPÍ United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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