Lozada v. United States Postal Service

2023 | Cited 0 times | D. Puerto Rico | March 9, 2023



CIVIL NO. 20-1674 (DRD)

OPINION AND ORDER Pending before the Court is Defendant, Louis DeJoy, Postmaster General for the United Motion to Dismiss Amended Complaint (Docket No. 28). A Response in Opposition thereto was filed by Plaintiff, Nancy Lozada. See Docket No.33. A Reply ensued shortly thereafter. See Docket No. 36. Upon review, and for the reasons stated herein, the Court hereby GRANTS the Motion to Dismiss Amended Complaint. (Docket No. 28).

I. INTRODUCTION Originally, Plaintiff filed a civil action for damages pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. 29 U.S.C. § 701, et seq., and under 29 U.S.C. § 794 in particular, and the Age Discrimination in

Employment Act of 1967, 29 U.S.C. §§ 621, et seq. and discriminatory Complaint, Docket No. 1 at p. 1. Essentially, Lozada alleged that she was subject to discrimination on the basis of her age, (40+) when the Defendant failed to accommodate her in a position in favor of employees younger than 40 years old. As a result thereof, she was retaliated after requesting a reasonable accommodation. See id. The USPS moved to partially : or failure to exhaust administrative remedies prior to filing the above-

p. 6. In sum, the USPS argued that the Rehabilitation Act is the proper statutory provision under

which Plaintiff could raise any claim of discrimination or retaliation based on disability not the ADA. On March 28, 2022, the Court dismissed claims related to the ADA, the ADEA, and declined to exercise supplemental jurisdiction as to Puerto Rico law claims as it is precluded by law to do so. See Opinion and Order, Docket No. 16. Plaintiff was also ordered to amend the complaint in order to provide a pertaining to Opinion Id.

Opinion and Order, Lozada amended the pleadings. See Docket No. 21. In sum, Plaintiff seeks damages pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and under section 504, 29 U.S.C. § 794, in particular,

Amended Complaint, Docket No. 21 at p. 1. Lozada further seeks declaratory relief as to the in the context of her employment, reinstatement order, compensation suffering, emotional distress, and moral damages, loss of wages Id. In a nutshell, Lozada claims that she was subject to discrimination on the basis of her age, (40+) when the Defendant failed to accommodate her in a position in favor of employees younger than 40 years old. As a result thereof, she was retaliated after requesting a reasonable accommodation. See id. The USPS now moves to dismiss the Amended Complaint in its entirety for the following reasons:

1. once again, fails to allege she is a qualified individual with a disability. 2. Plaintiff failed to allege a plausible claim of retaliation under the Rehabilitation

Act; 3. Plaintiff failed to exhaust administrative remedies regarding a letter she was

sent on February 25, 2020, and alternatively, such a letter is not an adverse employment action; 4. et

seq. Docket No. 28 at p. 2.

II. FACTUAL AND PROCEDURAL BACKGROUND As stated in the Amended Complaint, Lozada is a 53-year-old 1

female who was born in June 13, 1969, and is a full-time Carrier Technician for the USPS. Amend. Comp. at ¶¶ 2, 6. On June 11, 2014, Plaintiff suffered an injury to her right ankle while delivering mail. Id. at ¶ 8. Upon partially recovering, she returned to a limited duty job at the Bayamón station, delivering mail on a mounted route. Id. at ¶ 9. By December 4, 2016, Lozada returned to her regular carrier technician assignment, which consisted of five (5) walking routes at the Loíza station. Id. at ¶ 10. As Plaintiff began experiencing pain and discomfort shortly thereafter, she informed the situation to her manager, Erika Vazquez. Id. at ¶ 11. According to Lozada, Vazquez was unable to help her

1 In the Amended Complaint, Lozada alleges to be 51 years old. But, as she was born on 6/13/1969, she is now 53 years old. because all the routes in the Loíza station are walking routes. Id. at ¶12. Subsequently, Plaintiff visited her doctor who ordered an MRI which revealed a high-grade tear of anterior talofibular ligament and tenosynovitis. Id. at ¶ 13. She continued working until December 23, 2016, when she fell while performing her duties, re-injuring her right ankle, resulting in being placed in a cast until March 2, 2017. Id. at ¶¶ 15-16. A claim was filed as a result thereof. Id. at ¶ 15. The OWCP claims for benefits on April 12, 2017, and November 8, 2017, respectively. Id. at ¶¶ 20-27. Plaintiff began receiving treatment with a doctor that worked with OWCP cases and who agreed to treat her injuries on April 16, 2018. Id. at ¶ 30. Between then and November of 2018, Plaintiff allegedly attempted to return to work with limited duties by requesting a reasonable accommodation through Mayra Mendoza. Id. at ¶¶ 31-37. However, Vega Baja Postmaster, Carlos Cabrera informed Lozada that he was unable to offer her any work considering her -17. Id. at ¶¶ 36-37. Although Plaintiff claims that she has made multiple unsuccessful attempts to obtain a work accommodation, on March 20, 2019, she received an Offer of Modified Assignment to work a (2.5) hour shift at the Loíza Station, but instead requested a reassignment to the Vega Baja office, as it is closer to her home. Id. at ¶¶ 41-44. Specifically, Plaintiff requested a reassignment transfer to the Vega Baja Office as an FTR sales/services, distribution associate, Level 6 position. Id. at ¶ 44. But on October 2, 2019, she Id. at ¶ 45. converted to regular, multiple employees at the Vega Baja Post Office after her injury, and most of them are under 40 years of age. Id. at ¶¶ 48, 53 2

. On August 13, 2019, Plaintiff was invited to an Accommodation Meeting with the Case Caribbean District Reasonable Accommodation Id. at ¶ 54. Eventually, Plaintiff made initial contact with the EEO counselor on November 4, 2019 (see Docket No. 28, Exhibit No. 1 at p. 3) and as a result thereof, on December 20, 2019, she Amend Comp. at ¶ 55; see also, Docket No. 28, Exhibit 1 at p. 3. 3

In the EEO Complaint, the following claims as to discrimination based on sex (female), age, retaliation, and disability were raised:

1) Beginning on March 10, 2017, she did not receive compensation from the

Office of Workers Compensation Program (OWCP). 2) On August 7, 2017, she received a letter stating effective February 22,

2017, her health benefits would be cancelled. 3) In October of 2018, she was not told there was no work available within

her restrictions. 4) On October 2, 2019, she received notification that the modified job offer

as a clerk in Vega Baja was denied due to her attendance and safety record. See Docket No. 28, Exhibit No. 2 at pp. 1-2. On January 9, 2020, the EEO issued a Partial Acceptance/Partial Dismissal of Formal EEO Complaint accepting only Claim Four for investigation. Claims One, Two and Three were deemed untimely as Plaintiff failed to seek EEO counselling within 45 days of the event which led to the complaint. Likewise, Claims One and Two

2 As Lozada no longer has an ADEA claim due to dismissal, the employee comparison table is irrelevant, thus, will not be considered for purposes of this Opinion and Order. See Docket No. 16. 3 Generally, among the documents that may be considered as part of a motion to dismiss for failure to state a claim, Blue Ocean Int'l Bank LLC v. Golden Eagle Cap. Advisors, Inc., 408 F. Supp. 3d 57, 61 n. 2 (D.P.R. 2019) (citing Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)). Therefore, the Court may consider the exhibits produced by the Defen which are documents relied upon or incorporated by reference in the Complaint : were also dismissed for lodging an impermissible collateral attack on another forum, namely, the , respectively. Id. at pp. 6- you do not agree with the defined accepted issue(s), you must provide a written response

specifying the nature of your disagreement within seven (7) calendar days of receipt of this letter to the EEO Services Lastly, after filing the EEO complaint, Lozada alleges to have received a letter dated February 25, 2020 from the District Office stating that she has been absent since December 24, 2016, and that she should indicate the type of leave she had requested. Amend. Comp., at ¶ 57. Id.

According to Lozada, multiple employees have been hired or transferred to the Vega Baja station after she filed her EEO complaint. See Docket No. 21 at ¶ 60. However, on June 18, 2020, she was informed by Edgar Quiles, Manager of the Loíza CCU Station that there are no possible reasonable Id. at ¶¶ 58-59.

Moreover, Plaintiff claims that she has never violated any procedures and the USPS has no disciplinary procedures against her. Id. at ¶ 61. Quite the opposite, according to Lozada, she has an unblemished personnel record, her job performance was exemplary, and never was subject of unsatisfactory reports or negative evaluations from any of her immediate supervisors. Id. at ¶ 62. She instead attributes her absences to her inability to work due to her injuries and to Id. at ¶ 47. Considering the aforementioned, Plaintiff filed the instant suit for disability, age discrimination and retaliation seeking compensatory damages, backpay, reinstatement, and Lozada claims to be a qualified disabled individual who was subject to discrimination by USPS failing to provide her with a reasonable accommodation. Id. at ¶¶ 69-70. Specifically Rehabilitation Act, which was informed and known by the Defendant. Id. at ¶ 75. In fact, Plaintiff

claims that requiring an accommodation is protected conduct for purposes of the Rehabilitation Id. Although Plaintiff is also seeking relief for punitive damages (id at ¶ 78), such claims must be discarded agency or pol Oakstone v. Postmaster Gen., 397 F. Supp. 2d 48, 61 (D. Me. 2005).

III. LEGAL STANDARD A. Federal Rule of Civil Procedure 12(b)(1) 12(b)(6), it ordinarily ought to decide the former before broaching the Deniz v. Municipality of Guaynabo, subject matter jurisdiction, assessment of the merits becomes a matter of purely academic

Rule 12(b)(1) provides that a complaint will be dismissed if the court lacks subject matter jurisdiction. It is settled that the standard followed by the court when considering a dismissal ell-pleaded factual claims Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998), as restated in Rolón v. Rafael Rosario & Associates, Inc., et al., 450 F.Supp.2d 153, 156 (D.P.R.2006). Moreover, [m]otions brought under Rule 12(b)(1) are subject to the same De Leon v. Vornado Montehiedra Acquisition L.P., 166 F. Supp. 3d 171, 173 (D.P.R. 2016); see Negrón-Gaztambide v. Hernández Torres, 35 F.3d 25, 27 (1st Cir. 1994). be a context-specific task that requires the reviewing court to draw on its judicial experience and

Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009).

To determine jurisdiction under Rule 12(b)(1), the court may also review the evidence on record, including affidavits and depositions, as opposed to a dismissal request under any other subsection of Rule 12(b). Once the jurisdiction of the court is challenged by the defendant Rolón, supra.

Rolón, 450 Spielman v. Genzyme Corp., the jurisdictional limits [standards] that Congress chooses, Del Rosario Ortega v. Star Kist Foods,

213 F.Supp.2d 84, 88 (D.P.R.2002)(citing Coventry Sewage Associates v. Dworkin Realty Co., 71 F.3d 1, 3 (1st Cir.1995), as restated in Rolón, 450 F.Supp.2d at 156. See also Kokkonen v. Guardian Life Ins. Co. of America, are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, see Willy v. Coastal Corp., 503 U.S. 131, 136 137, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992) Rossello Gonzalez v. Calderon Serra, 398 F.3d 1, 15 that they have explicit authority to decide a case. Bonas v. Town of North Smithfield, 265 F.3d

69, 75 (1st Cir.2001) (citing Irving v. United States, 162 F.3d 154, 160 (1st Cir.1998) (en banc)). Thus, we subject the plaintiff's choice of a federal forum to careful scrutiny. Id. A challenge under Rule 12(b)(1) constitutes a challenge to federal subject matter jurisdiction, which includes ripeness, mootness, sovereign immunity, and subject matter jurisdiction. See Valentín v. Hospital Bella Vista, 254 F.3d 358, 362 63 (1st Cir.2001). Where subject matter jurisdiction is challenged under 12(b)(1), the party asserting jurisdiction bears the burden of demonstrating the existence of federal subject matter jurisdiction. See Skwira v. United States, 344 F.3d 64, 71 (1st Cir.2003). See also Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995); McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir.2004). In Valentin v. Hospital Bella Vista, 254 F.3d 358, 362 rella, ripeness, mootness, the existence of a federal question, diversity, and sovereign immunity.

dismiss under both Rules 12(b)(1) and Deniz v. Municipality of Guaynabo subject matter jurisdiction, assessment of the merits becomes a matter of purely academic

B. Federal Rule of Civil Procedure 12(b)(6)

statement of the claim sh Under

Bell Atlantic v. Twombly See Ocasio Hernandez v. Fortuño Burset,

that all the allegations in the complaint quoting Twombly,

550 U.S. at 555) (citation omitted). Thus, a plaintiff must, and is now required to, present comply with the requirements of Rule 8(a). Id. at 570; See e.g. Iqbal, 556 U.S. 662 (2009).

When considering a motion to dismiss, the Court's inquiry occurs in a two-step process under the current context- Twombly, 550 U.S. 544, and Iqbal sufficient facts that comply with the basic elements of the cause of action. See Iqbal, 556 U.S. at 677 679 (concluding that plaintiff's complaint was factually insufficient to substantiate the required elements of a Bivens claim, leaving the complaint with only conclusory statements). First, the Court must

conclusory statements, and factually threadbare recitals of the elements of a cause of action. Iqbal, 556 U.S. at 678. Maldonado v. Fontanes, 568 F.3d

263, 268 (1st Cir.2009) (quoting Iqbal, 556 U.S. at 678) (quoting Twombly, 550 U.S. at 557).

Under the second step of the inquiry, the Court must determine whether, based upon all Iqbal, 556 U.S. at 679. - whether a plaintiff has stated a claim upon which relief may be granted, or, conversely, whether

dismissal under Rule 12(b)(6) is appropriate. Id.

Sánchez v. Pereira Castillo, 590 F.3d 31, 41

-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Furthermore,

Id. at 682 (citing Twombly, 550 U.S. at 567).

The First Circuit has cautioned against equating plausibility with an analysis of the likely Sepúlveda Villarini v. Dep't of Educ.

of P.R., 628 F.3d 25, 30 (1st Cir.2010) (citing Twombly, 550 U.S. at 556); Ocasio Hernández, 640 F.3d at 12 (citing Iqbal, 556 U.S. at 679); See Twombly -pleaded complaint may proceed even if quotation marks omitted); See Ocasio Hernández, 640 F.3d at 12 (citing Twombly, 550 U.S. at

f it -or-break standard ... is that the combined allegations, taken as true, must state a plausible, [but] not a merely conc Sepúlveda Villarini, 628 F.3d at 29.

Aulson v.

Blanchard, 83 F.3d 1, 3 (1st Cir.1996). Similarly, unadorned factual assertions as to the elements of the cause of action are inadequate as well. Penalbert Rosa v. Fortuño Burset, 631 F.3d 592 evidence, would likely Id. at 596; See Iqbal, 556 bald allegations on the ground that they are unrealistic or nonsensical.... It is the conclusory nature of [the] allegations, rather than their See Mendez Internet Mgmt. Servs. v. Banco Santander de P.R., 621 F.3d 10, 14 (1st Cir.2010) (the Twombly and Iqbal However, merely parroting the elements of a cause of action is insufficient. Ocasio Hernández,

640 F.3d at 12 (citing Sánchez v. Pereira Castillo, 590 F.3d 31, 49 (1st Cir.2009)).

IV. LEGAL ANALYSIS A. Plaintiff failed to properly allege to be a qualified individual with a disability standard for retaliation claims under the Rehabilitation Act is the same as the standard under the ADA. D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 41 (1st Cir. 2012). The Rehabilitation Act prohibits discrimination against an otherwise qualified individual based on his disability for an executive agency. See 28 U.S.C. §§ 791 et seq. ased on disability do more than merely prohibit disparate treatment; they also impose an affirmative duty on employers to offer a Calero-Cerezo v. U.S. Dep't of Just., 355 F.3d 6, 19-20 (1st Cir. 2004) (quoting García-Ayala v. Lederle Parenterals, Inc., 212 F.3d, 638, 646 n.9 (1st Cir. 2000)). As such, Alvarado v. Potter, 813 F. Supp. 2d at 253.

Specifically Rehabilitation Act, [Plaintiff] would have to establish the following: (1) that she suffered from a

in that she was able to perform the essential functions of her job, either with or without a reasonable accommodation; and (3) that, despite her employer's knowledge of her disability, the employer did not offer a reasonable accommodation for the disabili Calero-Cerezo, 355 F.3d at 20. See Enica v. Principi, 544 F.3d 328, 338 (1st Cir. 2008); Collins v. Antilles Consol. Schools, No. CV 10- 1037 (JAG-CVR), 2011 WL 8194765, at *8 (D.P.R. October 19, 2011). Likewise, o establish a qualifying disability, the plaintiff has the burden of proving 1) that he or she suffers a physical or 3) that the limit imposed on the plaintiff's major life activity is substan Acevedo v. Potter,

No. CV 08-1468 (DRD), 2011 WL 7092592 at *7 (D.P.R. March 23, 2011) (citing Rolland v. Potter, 492 F.3d 45, 48 (1 st

Cir. 2007)). oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,

bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and

The Signore v. Rhode Island, No. CV 17-526 WES, 2018 WL 3145835, at *1 (D.R.I. June 27, 2018) (citing Orr v. City of Rogers, 232 F. Supp. 3d 1052, 1064 (W.D. Ark. 2017). s have granted motions to dismiss where the plaintiff's alleged disability was not covered by the [Act] Signore, 2018 WL 3145835 at *1. See, e.g., Zick v. Waterfront Comm'n of New York Harbor, No. CV 11 [Act] Amend. Comp., ¶ 68) will not suffice,

as the requirements for disability are clearly prescribed by law. Signore, 2018 WL 3145835 at *1. Here, the USPS warrants dismissal because she failed to allege the most basic element: that she suffers from a disability within the But in Opposition, Lozada argues that ] suffered two injuries to her ankle that due to these Response in

Opposition, Docket No. 33 at p. 12. she is a qualified individual with a disability pursuant to the Rehabilitation Act. The amended

version of the same allegation in the Amended Complaint, has a greater deficiency that the one identified by the Court in its Opinion and Order. The Court explains. In the Original Complaint, Lozada alleged to have suffered a sprain of the tibiofibular ligament of her right ankle resulting in being for a period of more than six (6) hours Original Complaint, Docket No. 1, ¶¶ 20, 45. When the USPS moved for dismissal the first time, the Court mitation of a major life Opinion and Order, Docket No. 16 at p. 14. Specifically, the Court held that,

[t]aking the allegations in light most favorable to Plaintiff, the Complaint still falls short in establishing a physical impairment which substantially limits a major life must be [] dismissed for failure to state a claim for which relief can be granted.

Id. In sum, the Original Complaint to identify the medical condition and limited Id. at p. 23. Plaintiff amended the complaint now claiming that tibiofibular sprain with complex regional pain syndrome, which has been deemed permanent and

constitutes a disability within the scope of the R Amend. Comp. at ¶ 50. As a vities like walking, standing and driving have been substantially affected Id. at ¶ 51. Id. at ¶ 52. Before, she alleged to be limited in walking and driving for a

period of more than six (6) hours but now major life activities like walking, standing, and driving , as these allegations seem to be an attempt to parrot the elements of a cause of action under the Rehabilitation Act, and, as such, are insufficient. Ocasio Hernández, 640 F.3d at 12 (citing Sánchez v. Pereira Castillo, 590 F.3d 31, 49 (1st Cir.2009)). But ultimately, life activities like walking, standing, or driving have been substantially limited as compared to

See 29 C.F.R. § 1630.2. Although l , the relatively low bar, ... Mancini v. City of Providence by & through Lombardi, 909 F.3d 32, 43 44 (1st Cir. 2018). Likewise, in Twombly, the Supreme Court was specific as to the requirement that the and conclusions, and a formulaic recitation of the elements of a cause of 550

U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d. 209 (1986). Id.; see 5 C Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed.

2004). Stated otherwise,

n Act]. This deficiency is fatal to her claim, particularly where the Court had previously identified it, and [Plaintiff] failed to rectify it in this latest iteration of her complaint. Hunter v. Atlanta Pub. Sch., No. 1:18-CV-00869-JPB, 2020 WL 10574760, at *5 (N.D. Ga. Dec. 28, 2020)(citing The Court finds that Plaintiff had plenty of opportunity to correct the deficiencies identified in the Original Complaint but chose not to. Considering that Plaintiff received sufficient guidance from the Court as to what was expected pursuant to applicable case law, the disability discrimination claim fails, and is therefore dismissed with prejudice. B. Plaintiff failed to raise a plausible retaliation claim pursuant to the Rehabilitation Act The Rehabilitation Act makes it unlawful for employers to retaliate against persons who Noviello v. City of Bos., 398 F.3d 76, 88 (1st Cir. 2005). To make out a prima facie case of retaliation a plaintiff must show that (1) he or she engaged in protected conduct, (2) he or she was subjected to an adverse action by the defendant, and (3) there was a causal connection between the protected conduct and the adverse action. D.B. ex rel. Elizabeth B., 675 F.3d at 41. In the Amended Complaint Amend. Comp. at ¶ 75. In for the legal obligations that arose for defendant under the Rehabilitation and awareness of plaintiff's disability, defendant has deliberately sat down on her request, and

has failed to accommodate her. Amend. Comp. at ¶ 76. equesting an accommodation is protected conduct for purposes of the retaliation provision. Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007). possibility that the employer will not honor the request. If the prospect that an employer might

not honor the request would deter a reasonable employee from even making the request, reasonable employees would not request accommodation. For this reason, a failure to accommodate cannot constitute retaliation for an employee's request for accommodation. Gomez v. Laidlaw Transit, Inc., 455 F. Supp. 2d 81, 90 (D. Conn. 2006) (emphasis ours); see also Missick v. City of New York, 707 F. Supp. 2d 336, 356 (E.D.N.Y. 2010 efendants' alleged failure to accommodate disability subsequent to an [Act] . . . protected request cannot be bootstrapped into a viable disability retaliation claim.) Pursuant to the aforementioned, a retaliation claim related to a failure to accommodate is impermissible as a matter of law. The proper avenue would be to file a disability discrimination claim for failure to accommodate. As such, the retaliation claim for failure to accommodate fails and must be dismissed. C. Plaintiff failed to exhaust administrative remedies as to letter dated February 25, 2020 In the Amended Complaint received a letter dated February 25, 2020, from the District Office which states she has been

absent since December 24, 2016 and that she should indicate the type of leave she had Amend. Comp. at ¶ 56. Yet, Plaintiff now adds an adverse employment action within the scope of the Rehabilitation Act, as well as a clear act

Id. ssed for failure to exhaust administrative remedies and because this letter, in itself, is not an adverse employment

Generally, an employee must exhaust administrative remedies before filing a discrimination suit before th the parameters of the underlying administrative charge. This does not mean that the scope of

the suit is inevitably limited to the allegations in the administrative complaint, but it is nonetheless constrained by those allegations in the sense that the judicial complaint must bear Jorge v. Rumsfeld, 404 F.3d 556, 565 (1st Cir. 2005) (internal citations omitted). Failing to do so, deprives the EEOC from its ability Id. order to serve the purposes of the administrative exhaustion requirement prompt notice to the

agency and an opportunity for early resolution, 'the factual statement in [the] written charge Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 71 (1 st

Cir. 2011) (internal citations omitted). Hernandez-Stella v. Shinseki, 978 F. Supp. 2d 105, 112 (D.P.R. 2013) (citing Lattimore v. Polaroid

Corp. requires a complaining party to pursue administrative relief prior to court action, [] encourag[es]

[a] quicker, less formal, and less expensive resolution of disputes within the Federal Government West v. Gibson, 527 U.S. 212, 218 19, 119 S. Ct. 1906, 1910, 144 L. Ed. 2d 196 (1999). The prerequisite of exhaustion of remedies is even more determinative as to federal Vazquez-Rivera v. Figueroa, 759 F.3d 44, 48 (1st Cir. 2014) (citing Irwin v. Dep't of Veterans

Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). employees of federal agencies. This requirement is derived from 29 U.S.C. § 794a(a)(1), providing

that federal agency employees must exhaust administrative remedies in accordance with the Hernandez-Stella, 978 F. Supp. 2d. at 112 (citing Roman-Martinez v. Runyon, 100 F.3d 213, 216, (1st Cir. 1996). In fact Rather, it incorporates the procedures set forth in Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq.; Murphy v. Mattis, No. 2:14-CV-00400-JAW, 2017 WL 1157086, at *27 (D. Me. Mar. 27, 2017) (citing Vazquez-Rivera v. Figueroa, 759 F.3d 44, 47 (1st Cir. 2014). For that reason, the process outlined in 29 C.F.R. §§ 1614.101- Hernandez-Stella, 978 F.Supp.2d. at

Failure to exhaust [administrative remedies] claims against the Id. at 112 (emphasis ours). Lastly, the proper vehicle when

seeking dismissal for failure to exhaust administrative is through motions to dismiss for failure to state a claim. See Carter v. Carson, 241 F. Supp. 3d 191, 195 (D.D.C. 2017), aff'd, 715 F. App'x 16 (D.C. Cir. 2018).

Pursuant to the Amended Complaint, Plaintiff failed to timely exhaust administrative remedies within the time frame provided by 29 C.F.R. § 1614.105. In spite of the fact that Lozada claims to have been discriminated and retaliated against when she received the February 25, 2020 letter, there is no evidence on file that she informed said event the EEO counselor within 45 days of the event as required. In addition, the Partial Acceptance/Partial Denial Letter dated January 9, 2020 served as See Docket No. 28, Exhibit : amendment will extend the time of processing an additional 180 days from the date of the

amendment with the total allowable time for processing the complaint and all amendments no Id. at p. 7. administrative record that she contacted the EEO Counselor to add new allegations to the

complaint and she did not file a separate EEO complaint after receiving the February 25, 2020 letter. The Court explains in detail. Importantly n [EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within said time frame contact the EEOC Counselor within said 45 days prevents the employee from bringing a claim in

court. See Velazquez-Rivera v. Danzig, 234 F.3d 790, 794 (1st Cir. 2000); see also, Roman- Martinez v. Runyon, 100 F.3d 213, 216- contact an EEOC counselor within the proscribed statute of limitations results in losing his right

to later pursue an action in court). employment occurrences with the potential for concrete adverse consequences on plaintiff's

Rojas v. Principi, 326 F. Supp. 2d 267, 276 (D.P.R. 2004). Title VII claims are new position, suspensions from employment, deprivation of duties, failure to select plaintiff for

unannounced employment positions, written counseling, and proposed admonishments and Lugo v. Avon Prod., Inc., 777 F. Supp. 2d 275, 287 (D.P.R. 2011). re not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 2072, 153 L. Ed. 2d 106 (2002). occurrence, however, does not bar employees from filing charges about related discrete acts so

long as the acts are independently discriminatory and charges addressing those acts are Id. to equitable doctrines such as tolling or estoppel. Courts may evaluate whether it would be

proper to apply such doctrines, although they are to be applied sparingly Id. (internal citations omitted) (emphasis ours). activated by a request from the employee, and the request must be sufficiently direct and specific

to give the employer notice of the needed accommodation. If the request is refused, the refusal Tobin v. Liberty Mut. Ins. Co. contrast, the denial of a disabled employee's request for accommodation starts the clock running

Id. at 130. But ultimately, the Code of Federal Regulations clearly provides inves § 1614-106(d). Yet, even when Lozada was represented by appearing counsel during the

administrative stage, she did not preserve her right to seek redress. As previously mentioned, Plaintiff failed to comply with this regulation as to the alleged discrimination and retaliation related to the February 25, 2020 letter, which in turn, deprived the agency of the opportunity to investigate this claim, and as such, must be dismissed. Specifically, is devoid of any contact to the EEO Counselor related to the February 25, 2020 letter. Upon 45 days of receiving the letter, Plaintiff is unable to seek redress as to said instance. See Docket No. 28, Exhibit No. 1. Stated otherwise, any claim subsequent to the 45 days after the receipt of the letter, namely, April 10, 2020, is untimely. Therefore, upon evaluating the Amended Complaint, the Court finds that allegations related to the February 25, 2020 are time barred, and as such, must be dismissed. : was represented by counsel, to voice any disagreement with the framing of the issue by the EEO

Sellers v. U.S. Dep't of Def., C.A. No. 07-418S, 2009 WL 559795, at *13 (D.R.I. Mar. 4, 2009).

C. The Court is devoid of jurisdiction to address accommodation pursuant to FECA The Federal Employees Compensation Act (hereinafter, federal workers' compensation scheme designed to provide redress for work-related injuries. Gill v. United States, 471 F.3d 204, 205 (1st Cir. 2006). shall pay compensation as specified by this subchapter for the disability or death of an employee

§ 8102(a). Meanwhile, the Secretary of Labor is conferred upon the administration and deciding all questions arising thereunder. See 5 U.S.C. § 8145. an award for or against payment of compensation at any time on his own motion or on

increase the compensation previously awarded; or (2) award compensation previously refused

Id. But the decision of the Secretary of Labor or his designee allowing or denying fact; and; (2) not subject to review by another official of the United States or by a court by

Id. (emphasis ours). FECA, in turn, is administered by the Department jobs to accommodate employees with compensable job-related injuries. Quarrick v. Brennan, No. 2:17-CV-00685, 2019 WL 5578890, at *5 (W.D. Pa. Oct. 29, 2019); see

As such, l States ... to the employee, his legal representative, spouse, dependents, next of kin, and any

other person otherwise entitled to recover damages. Id. ¶ 8116(c). Likewise Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94, 103 S. Ct. 1033, 1036,

74 L. Ed. 2d 911 (1983) immediate, fixed benefits regardless of fault and without need for litigation, but in return they lose the right to sue th Id. Under the regulatory scheme created by the Department of Labor, ... the USPS has certain obligations towards injured workers who are eligible to receive benefits from the OWCP. If the OWCP accepts the claim of an injured employee with permanent partial restrictions, then Sharpe v. Henderson, No. CV-00-71-ST, 2001 WL 34039485, at *12 (D. Or. Oct. 19, 2001) 4

. Meanwhile, [i]f the OWCP rejects the worker's compensation claim of an injured employee, then the USPS is

4 available or whether an existing job can be modified. If so, the employer shall advise the employee in writing of the duties, their physical r no longer bound by the obligations of the Department of Labor, but must comply only with the Rehabilitation Act. Id. at *13. Accordingly, pursuant to FECA, USPS employees who temporarily cannot perform their permits such employees to continue working in a functional capacity as long as they do not

exceed their physical l Quarrick, 2019 WL 5578890, at *5 n. 2. The USPS meets the that are subfunctions, and not essential functions, of an existing position, and are specifically

tailored for the injured employee . . Sharpe, 2001 WL 34039485 at * 12. In other words, limited duty assignments are meant to be permanent work assignments that are given to employees who are no longer capable of performing the essential functions of their jobs, and compensation claims have been accepted by OWCP. Gonzalez Tomasini v. United States Postal Serv., No. CV 17-1552-MEL, 2022 WL 2820073 at *7 (D.P.R. July 19, 2022)(quoting Sizemore v. Potter, 2008 WL 11514999 at *1 (N.D. III. Apr. 18, 2008). In sum, reasonable accommodation claim under the Rehabilitation Act, limited duties are a remedy only

available under FECA and cannot qualify as a reasonable accommodation under the Id.

Calero-Cerezo, 355 F.3d at 20. In order Rehabilitation A education and other job-related requirements for the position, and second, that she is able to perform the essential functions of the position with or Id. at 22. Specifically, [a] reasonable accommodation is a change in workplace conditions that

would enable an employee to perform the essential functions of her job. Such an accommodation, though, must be feasible for the employer. The reasonableness of any proposed accommodation, including its feasibility, must be assessed on a case-by- Vazquez- Jimenez v. Evertec Grp., LLC, 470 F. Supp. 3d 155, 159 (D.P.R. 2020); see 29 C.F.R. § 1630.2(o) (1)(ii). But it is Plaintiff who Reed v. LePage Bakeries, Inc., 244

F.3d 254, 259 (1st Cir. 2001) reasonable request for an accommodation must in some way consider the difficulty or expense imposed on the one doing the accommodating. Id. at 259. Therefore, part-time or modified work schedules. However, the [Rehabilitation Act] does not require an

Soto-Ocasio v. Fed. Exp. Corp., 150 F.3d 14, 20 (1st Cir. 1998) (internal quotations omitted). Nor is an employer required to provide an accommodation that removes an essential function of the position. Charette v. St. John Valley Soil & Water Conservation Dist., 332 F. Supp. 3d 316, 359 (D. Me. 2018); see Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 81 (1st Cir. 2010). t]he [Act] d[oes] not require [the employer] . . . . [I]t is well-settled that employers need not exempt employees from performing essential functions of their jobs. Thomas v. Trustees of Univ. of Pennsylvania, No. CV 17-5194, 2020 WL 374615, at *7 (E.D. Pa. Jan. 23, 2020).

Here, the USPS argues that Plaintiff in the Amended Complaint several allegations about the loss of health benefits and hurdles in the process of obtaining

p. 18. For instance, Lozada refers to the limited duties u compensation claim was approved by the OWCP. She also referred to the CA-17 Form from FECA,

and the modified duty assignment offer she received. 5

Yet, Plaintiff remains silent as to this argument in her Opposition. See Docket No. 33.

Nevertheless, based on the aforementioned, the Court is barred from entertaining failure to accommodate claims pursuant to FECA. The OWCP is in charge of determining the suitability of the accommodation offered by the employer and 2017) (citing 5 U.S.C. § 8149; Woodr , 954 F.2d 634, 637 (11th Cir.

1992)). Any objection to a modified duty assignment must be made through the OWCP and appeals must be made through the ECAB. See Broughton v. United States, No. 18-573C, 2018 WL 5307677, at *4 5 (Fed. Cl. Oct. 26, 2018), aff'd Accordingly, Guice v. Perez,

5 See e.g., ¶¶ 20, 27, 36-37, 39 and 43. No. 8:15-CV-2935-T-27TBM. 2016 WL 11578725 at *2 (M.D. Fla. Feb. 1, 2016) (citing 5 U.S.C. § 8128(b). By the same token, t No. 28 at p. 22; see Sharpe, 2001 WL 34039485 at *16. Essentially, an

OWCP claimant is not required to perform essential duties of her job, as the limited duty so that returning to work is feasible making her ineligible for reliefs available through the

duties which courts have repeatedly found unreasonable under the Rehabilitation Act. Whereas,

able to perform the essential duties of the job even if it is on a modified schedule. decisions

concerning the suitability of federal agency job offers to partially disabled employees have been exclusively committed to the Secretary of Labor under the FECA and cannot be collaterally attacked or reviewed under the Rehabilitation Act. Luellen v. Henderson, 54 F. Supp. 2d 775, 783 (W.D. Tenn. 1999). If Lozada failed to object to the modified duty assignments offered by the USPS, her sole recourse would have been seeking the OWCP review and appeal the adverse determination before the ECAB. Failing to do so constitutes an abandonment of her rights under FECA that cannot be remedied through a collateral attack in federal court under the guise of a disability discrimination claim. Attempting to characterize her requests for limited duty under FECA as reasonable accommodation requests under the Rehabilitation Act will not do, as they are inapposite. Based on the aforementioned, the Court does not have jurisdiction to entertain to assignment The Court agrees with the Defendant that

Amended Complaint prior to the reassignment denial on October 2, 2019 p. 24. Therefore, allegations related to Lozada are hereby stricken from the Amended Complaint.

V. CONCLUSION For the aforementioned reasons, the Court hereby GRANTS Motion to Dismiss Amended Complaint (Docket No. 28). Judgment of dismissal is to be entered accordingly. IT IS SO ORDERED. In San Juan, Puerto Rico, this 9 th

day of March, 2023.

S/Daniel R. Domínguez Daniel R. Domínguez United States District Judge

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