Colón-Ortiz v. Secretary of the Army

Civil No. 09-1525 (JAF)

2010 | Cited 0 times | D. Puerto Rico | August 25, 2010

OPINION AND ORDER

Plaintiff brought this action under Title VII of the Civil Rights Act ("Title VII"), 42 .S.C. §§ 2000e to e-17, alleging discrimination on the basis of her national origin. (Docket o. 1.) Defendant moves for summary judgment under Federal Rule of Civil Procedure 56(c). (Docket Nos. 18; 19; 20.) Plaintiff opposes (Docket Nos. 21; 22), and Defendant responds (Docket No. 25).

I. Factual Synopsis

We derive the following facts from the parties' motions, statements of material facts, exhibits. (Docket Nos. 18; 19; 20; 21; 22; 25.) Plaintiff is currently employed by efendant as the Education Liaison and Outreach Services director at Fort Buchanan, in San Puerto Rico. In June 2007, when she applied for this position, she lived in South Korea with her husband. Defendant claims that she lived there under a visa status that precluded from making South Korea her place of permanent residence. Defendant also maintains Plaintiff's permanent residence was at all times Puerto Rico, where Plaintiff lived and orked for Defendant prior to having moved to South Korea. Plaintiff claims that at the she applied for her current position, her permanent residence was South Korea.

On January 8, 2008, Plaintiff and Defendant completed a transportation agreement, hich guaranteed Plaintiff particular benefits related to her move to Puerto Rico and which expired on January 11, 2009. (See Docket Nos. 20-4; 21-3.) Plaintiff states that she was guaranteed those benefits for a minimum of two years. (Docket No. 21-1 at 1.) On ovember 18, 2008, Plaintiff requested an extension of the transportation agreement, and efendant denied that request on November 28, 2008.

Plaintiff claims that Defendant denied the extension because she is of Puerto Rican descent. Defendant explains that she was denied the extension because her home of record as always Puerto Rico; as a permanent resident of Puerto Rico, Plaintiff was appointed to current position as an employee returning to her home of record. As such, Defendant explains, she was always ineligible for a transportation agreement lasting beyond one year. Plaintiff counters that her home of record was South Korea when she applied for her current position and that Defendant's determination that her home of record was Puerto Rico was entirely on her national origin.

II. Summary Judgment Under Rule 56(c)

We grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is "genuine" if it could be resolved in favor of either party and "material" it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 6, 19 (1st Cir. 2004). In evaluating a motion for summary judgment, we view the record the light most favorable to the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, (1970).

The movant carries the burden of establishing that there is no genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party made a preliminary showing that no genuine issue of material fact exists, the non-movant ust 'produce specific facts, in suitable evidentiary form, to establish the presence of a orthy issue.'" Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)). The non-movant "may not merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).

III. Analysis

Defendant argues that he is entitled to summary judgment because, inter alia,1 Plaintiff cannot make the showings required to prevail on a Title VII claim, under a theory of either disparate treatment or disparate impact. (Docket No. 19 at 7--17.)

Disparate Treatment

To prove a claim of disparate treatment, a plaintiff must show that (1) she is a member a protected class; (2) she was qualified for the position and met her employer's expectations; (3) she suffered an adverse employment action; and (4) similarly-situated ployees outside the protected class received more favorable treatment. See Prescott v. iggins, 538 F.3d 32, 41 (1st Cir. 2008).

In this case, Plaintiff has made no showing of more favorable treatment of a similarly situated non--Puerto Rican. The closest she comes is stating via affidavit that "Ms. Kathleen amburg transferred from Germany to Puerto Rico on a two year transportation agreement." ocket No. 21-1 at 2.) This falls far short of establishing that Ms. Hamburg is both outside protected class and situated similarly to Plaintiff. In addition, Plaintiff fails to establish competence to testify as to Ms. Hamburg's situation. That being the case, Plaintiff's averment regarding Ms. Hamburg appears to be inadmissible hearsay, see Fed. R. Evid. 802, hich we cannot consider on summary judgment, see Fed. R. Civ. P. 56(e)(1) ("[An] opposing affidavit must be made on personal knowledge, set out facts that would be issible in evidence, and show that the affiant is competent to testify on the matters stated.").

Given Plaintiff's failure to sustain a genuine issue of material fact as to whether a similarly-situated individual outside the protected class received more favorable treatment, find Defendant entitled to summary judgment on Plaintiff's disparate treatment claim.

Disparate Impact

To prove a claim of disparate impact, a plaintiff must (1) identify the challenged employment practice or policy and pinpoint the employer's use of it; (2) demonstrate a disparate impact on a group characteristic that falls within the protective ambit of Title VII; (3) demonstrate a causal relationship between the identified practice and the disparate impact. EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 601 (1st Cir. 1995), denied, 516 U.S. 814 (1995). Generally, plaintiffs submit statistical proof to demonstrate a disparate impact on a group characteristic. See id. at 606; see also Bramble Am. Postal Workers Union, 135 F.3d 21, 26 (1st Cir. 1998) ("Statistics . . . are commonly basic component of a disparate impact claim.").

Nowhere in the record does Plaintiff even mention the effect of the alleged unlawful discrimination on other Puerto Ricans. (See Docket Nos. 1; 21; 21-1.) Even if such an effect be inferred from Plaintiff's submissions to date, she has failed to submit the evidence required to support it by this stage of her litigation. Plaintiff, therefore, fails to sustain a genuine issue of material fact as to whether the alleged discrimination affects other Puerto Ricans, and Defendant is entitled to summary judgment on Plaintiff's disparate impact claim.

IV. Conclusion

For the foregoing reasons, we hereby GRANT Defendant's motion for summary judgment (Docket No. 18), and DISMISS Plaintiff's complaint (Docket No. 1) in its entirety.

IT IS SO ORDERED.

San Juan, Puerto Rico, this 25th day of August, 2010.

1. Defendant advances two additional arguments for summary judgment in his favor: Plaintiff failed to contact her EEOC counselor within forty-five days of the alleged adverse employment action; and (2) Plaintiff cannot obtain compensatory damages via this lawsuit because failed to request same before the EEOC. (Docket No. 19 at 17--24.) Each pertains to Plaintiff's exhaustion of her administrative remedies, which does not affect this court's subject matter jurisdiction. See, e.g., Frederique-Alexandre v. Dep't of Natural & Envtl. Res. P.R., 478 F.3d 433, (1st Cir. 2007) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). Because we dismiss Plaintiff's complaint on other grounds, we decline to address these arguments.

OPINION AND ORDER

Plaintiff brought this action under Title VII of the Civil Rights Act ("Title VII"), 42 .S.C. §§ 2000e to e-17, alleging discrimination on the basis of her national origin. (Docket o. 1.) Defendant moves for summary judgment under Federal Rule of Civil Procedure 56(c). (Docket Nos. 18; 19; 20.) Plaintiff opposes (Docket Nos. 21; 22), and Defendant responds (Docket No. 25).

I. Factual Synopsis

We derive the following facts from the parties' motions, statements of material facts, exhibits. (Docket Nos. 18; 19; 20; 21; 22; 25.) Plaintiff is currently employed by efendant as the Education Liaison and Outreach Services director at Fort Buchanan, in San Puerto Rico. In June 2007, when she applied for this position, she lived in South Korea with her husband. Defendant claims that she lived there under a visa status that precluded from making South Korea her place of permanent residence. Defendant also maintains Plaintiff's permanent residence was at all times Puerto Rico, where Plaintiff lived and orked for Defendant prior to having moved to South Korea. Plaintiff claims that at the she applied for her current position, her permanent residence was South Korea.

On January 8, 2008, Plaintiff and Defendant completed a transportation agreement, hich guaranteed Plaintiff particular benefits related to her move to Puerto Rico and which expired on January 11, 2009. (See Docket Nos. 20-4; 21-3.) Plaintiff states that she was guaranteed those benefits for a minimum of two years. (Docket No. 21-1 at 1.) On ovember 18, 2008, Plaintiff requested an extension of the transportation agreement, and efendant denied that request on November 28, 2008.

Plaintiff claims that Defendant denied the extension because she is of Puerto Rican descent. Defendant explains that she was denied the extension because her home of record as always Puerto Rico; as a permanent resident of Puerto Rico, Plaintiff was appointed to current position as an employee returning to her home of record. As such, Defendant explains, she was always ineligible for a transportation agreement lasting beyond one year. Plaintiff counters that her home of record was South Korea when she applied for her current position and that Defendant's determination that her home of record was Puerto Rico was entirely on her national origin.

II. Summary Judgment Under Rule 56(c)

We grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is "genuine" if it could be resolved in favor of either party and "material" it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 6, 19 (1st Cir. 2004). In evaluating a motion for summary judgment, we view the record the light most favorable to the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, (1970).

The movant carries the burden of establishing that there is no genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party made a preliminary showing that no genuine issue of material fact exists, the non-movant ust 'produce specific facts, in suitable evidentiary form, to establish the presence of a orthy issue.'" Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)). The non-movant "may not merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).

III. Analysis

Defendant argues that he is entitled to summary judgment because, inter alia,1 Plaintiff cannot make the showings required to prevail on a Title VII claim, under a theory of either disparate treatment or disparate impact. (Docket No. 19 at 7--17.)

Disparate Treatment

To prove a claim of disparate treatment, a plaintiff must show that (1) she is a member a protected class; (2) she was qualified for the position and met her employer's expectations; (3) she suffered an adverse employment action; and (4) similarly-situated ployees outside the protected class received more favorable treatment. See Prescott v. iggins, 538 F.3d 32, 41 (1st Cir. 2008).

In this case, Plaintiff has made no showing of more favorable treatment of a similarly situated non--Puerto Rican. The closest she comes is stating via affidavit that "Ms. Kathleen amburg transferred from Germany to Puerto Rico on a two year transportation agreement." ocket No. 21-1 at 2.) This falls far short of establishing that Ms. Hamburg is both outside protected class and situated similarly to Plaintiff. In addition, Plaintiff fails to establish competence to testify as to Ms. Hamburg's situation. That being the case, Plaintiff's averment regarding Ms. Hamburg appears to be inadmissible hearsay, see Fed. R. Evid. 802, hich we cannot consider on summary judgment, see Fed. R. Civ. P. 56(e)(1) ("[An] opposing affidavit must be made on personal knowledge, set out facts that would be issible in evidence, and show that the affiant is competent to testify on the matters stated.").

Given Plaintiff's failure to sustain a genuine issue of material fact as to whether a similarly-situated individual outside the protected class received more favorable treatment, find Defendant entitled to summary judgment on Plaintiff's disparate treatment claim.

Disparate Impact

To prove a claim of disparate impact, a plaintiff must (1) identify the challenged employment practice or policy and pinpoint the employer's use of it; (2) demonstrate a disparate impact on a group characteristic that falls within the protective ambit of Title VII; (3) demonstrate a causal relationship between the identified practice and the disparate impact. EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 601 (1st Cir. 1995), denied, 516 U.S. 814 (1995). Generally, plaintiffs submit statistical proof to demonstrate a disparate impact on a group characteristic. See id. at 606; see also Bramble Am. Postal Workers Union, 135 F.3d 21, 26 (1st Cir. 1998) ("Statistics . . . are commonly basic component of a disparate impact claim.").

Nowhere in the record does Plaintiff even mention the effect of the alleged unlawful discrimination on other Puerto Ricans. (See Docket Nos. 1; 21; 21-1.) Even if such an effect be inferred from Plaintiff's submissions to date, she has failed to submit the evidence required to support it by this stage of her litigation. Plaintiff, therefore, fails to sustain a genuine issue of material fact as to whether the alleged discrimination affects other Puerto Ricans, and Defendant is entitled to summary judgment on Plaintiff's disparate impact claim.

IV. Conclusion

For the foregoing reasons, we hereby GRANT Defendant's motion for summary judgment (Docket No. 18), and DISMISS Plaintiff's complaint (Docket No. 1) in its entirety.

IT IS SO ORDERED.

San Juan, Puerto Rico, this 25th day of August, 2010.

1. Defendant advances two additional arguments for summary judgment in his favor: Plaintiff failed to contact her EEOC counselor within forty-five days of the alleged adverse employment action; and (2) Plaintiff cannot obtain compensatory damages via this lawsuit because failed to request same before the EEOC. (Docket No. 19 at 17--24.) Each pertains to Plaintiff's exhaustion of her administrative remedies, which does not affect this court's subject matter jurisdiction. See, e.g., Frederique-Alexandre v. Dep't of Natural & Envtl. Res. P.R., 478 F.3d 433, (1st Cir. 2007) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). Because we dismiss Plaintiff's complaint on other grounds, we decline to address these arguments.

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