Santiago v. McHugh, et al

3:13-cv-01700-BJM

2015 | Cited 0 times | D. Puerto Rico | July 31, 2015

HECTOR SANTIAGO,

Plaintiff, v. UNITED STATES DEPARTMENT OF THE ARMY, et al., Defendants.

Civil No. 13-1700 (BJM)

OPINION AND ORDER Hector Santiago filed a complaint against the United States Department of the Army and John McHugh, Secretary of the Army. Santiago, a civilian Army employee who

retaliated against him for his role in processing discrimination claims, resulting in his non- selection for a promotion and his reassignment, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and other federal laws. 1

government moves to dismiss on the grounds of res judicata and failure to exhaust

administrative remedies, and in the alternative moves for summary judgment for failing to adduce admissible evidence of retaliation. Docket No. 34. 2

Santiago opposed the motion. Docket No. 47. The government replied. Docket No. 55. This case is before me on consent of the parties. Docket Nos. 14- granted.

1 Santiago also claims a constitutional violation, and retaliation by the denial of training. Compl. ¶¶ 5.15, 6.2. Defendants allege that the constitutional claim is preempted by Title VII and the Civil Service Reform Act. Docket No. 34 at 12-14. Defendants also allege that the denial of training was a direct result of budget cuts, and affected employees other than Santiago. Id. at 4-5. motion. Docket No. 47 at 6, 8.

2 The government cannot move to dismiss at this stage in the proceedings, having filed a responsive pleading and presented matters outside the pleadings to the court. Fed. R. Civ. P. 12. The res judicata and failure to exhaust arguments are thus considered under the summary judgment standard. Id.

STANDARD OF REVIEW Fed. R. Civ. P. 56(a). lved in

Calero- , 355 F.3d 6, 19 (1st Cir. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The initial

burden on summary judgment lies always with the moving party; it is tasked with of a genuine dispute as

to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where, as in the usual case, the moving party would not at trial be saddled with the burden of proof, it may discharge this threshold responsibility in two ways, either by Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000), or Celotex, 477 U.S. at 325; see

Plumley v. S. Container,

Inc. the record revealing the presence of a meaningful dispute, McCarthy v. Nw. Airlines, Inc.,

56 F.3d 313, 315 (1st Cir. 1995). cannot

Greenburg v. P.R. Mar. Shipping Auth., 835 in the light most hospitable to the party opposing summary judgment, indulging all Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st

meta Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 Medina-Muñoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

BACKGROUND Except as otherwise noted, the following facts are those I consider undisputed and facts. 3

See Docket Nos. I. Factual Background Santiago started his career as a civilian employee of the Army in 2001 when he accepted a Management Assistant position at Fort Buchanan. DSMF ¶ 1. In 2002, Santiago started doing collateral duty as an EEO Counselor, and moved to the EEO office full time as an EEO specialist in August 2007. Id. In April 2008, the EEO Director, Magda Figueroa Acting EEO Director. Id. ¶ 2. Santiago continued to perform those duties, as well as the duties of EEO Specialist and EEO Counselor, until his reassignment in May 2011. Id. Santiago claims that while acting as Director he performed the same duties that Figueroa performed as Director. ASMF ¶¶ 23, 29-32, 57-58. Defendants present evidence to the contrary and claim that Santiago was not responsible for writing letters of acceptance and dismissal, nor for completing supervisory duties. RSMF ¶¶ 23, 29-32, 57-58.

3 Local Rule 56 requires parties at summary judgment to submit brief, numbered statements of facts, supported by citations to admissible evidence. It responsibility to ferret through the record to discern whether any material fact is genuinely in CMI Capital Market Inv. v. González-Toro, 520 F.3d 58, 62 (1st Cir. 2008), and prevents litigants iven case to the district court, Mariani- , 511 F.3d 216, 219 (1st Cir. 2007). The when not properly opposed, and litigants ignore it Id.

While acting in his EEO capacity, Santiago was not a witness in any case and did not make determinations of discrimination, but served a management role and tried to coordinate potential mediation between the parties. DSMF ¶ 5. Santiago never opined that discrimination had occurred in any case; nor was he ever in a situation where he felt like he was opposing discrimination against another employee. Id. Santiago asserts that Figueroa and Gu Deputy to the Commander, retaliated against him based on his handling of six specific EEO claims transpiring between 2007 and 2009 that involved allegations against management. Id. ¶ 4; Compl. ¶¶ 5.11, 5.15. Defendants claim that Santiago does not remember the six claims or know anything about those claims that would cause management to retaliate. DSMF ¶ 4. Santiago admits to this lack of knowledge with the exception that he knows name was mentioned in one of these claims. PSMF ¶ 4.

Santiago contends that Figueroa was disappointed that her name was written into a settlement agreement for an EEO claim in which she was not a proper defendant, as the employer is the only proper defendant under federal discrimination laws. DSMF ¶ 3. Santiago t that Santiago irector of the EEO Office. Id. Santiago claims management did not hire him as the permanent Director because DSMF ¶¶ 3, 7. Santiago claims that Pederse him changed after Figueroa said that he s back. PSMF ¶ 3. Santiago felt it was retaliation when Pedersen expressed his anger that claims filed against him were unfair or outrageous. DSMF ¶ 6. Colonel Cu nstallation Commander, also expressed unhappiness at being the subject of complaints. Id. Santiago contends that he applied for the position of Supervisory EEO Specialist, informally known as the Director position, three times. ASMF ¶ 1. Defendants allege that Santiago has been inconsistent on this subject, and cite to his deposition where he claimed . RSMF ¶ 1. The parties agree, however, that the job was

advertised and Santiago was not selected in February 2009, July 2009, and January 2011. ASMF ¶¶ 3-4, 6-8. Santiago adds that he was interviewed for the Director position but was not hired. PSMF ¶¶ 3, 9. In 2011, Santiago requested a transfer from the EEO Office due to health problems and stress created by a work load and by doing two full-time jobs. DSMF ¶ 8. Cushman offered Santiago other positions, but he did not like them and said he preferred to stay in his EEO position. Id. Santiago expressed interest in applying for the Director position, but Pedersen discouraged him from doing so. Id. ¶ 9. Cushman transferred Santiago to a Logistics Management Specialist position on May 8, 2011. Id. ¶ 8. II. Procedural Background Equal Employment Opportunity office on April 27, 2010, alleging that he had been subjected to discrimination based on age, gender, and national origin, and in reprisal for his processing of various administrative complaints during his tenure in the EEO office. DSMF ¶ 13. Santiago subsequently filed his first administrative complaint of discrimination on June 21, 2010. Id. Santiago asserted a laundry list of alleged wrongs, including that he was subjected to retaliation when he was not selected for the EEO Director position in February 2009. Id.

denial of training in March 2010, but dismissed his non-selection claim and the denial of training in July 2009, as well as others, because they were not timely raised with the EEO counselor. Id. ¶ 14. Santiago qualifies that not all of his claims were dismissed for timeliness, but rather the majority were dismissed for failure to state a claim. PSMF ¶ 14. On May 27, 2011, Santiago appea Federal Operations ( OFO ) at the Equal Employment Opportunities Commission ( EEOC ). DSMF ¶ 15. Santiago filed his second formal complaint of discrimination with the Army on July 6, 2011, alleging that he had been reassigned for retaliatory reasons to another position at Fort Buchanan. Id. ¶ 16. Santiago initiated Civ. No. 11-1666 (GAG)

Santiago I on July 12, 2011, only 90 days after filing his appeal, and six days after filing his second administrative complaint. Id. In Santiago I, the court held that Santiago had started the process to exhaust his remedies based on the filing of two administrative claims, but ultimately failed to complete the process. Id. ¶ 19. With regard to the first, which raised claims for denial of training and non-selection, Santiago appealed to the EEOC, but then filed his claim in this court after 90 days, without allowing the EEOC to rule on the appeal or waiting for 180 days to pass as required by the applicable regulations. Id.; see 29 C.F.R. § 1614.409. The reassignment claim, the subject of Santiago as dismissed because he filed his judicial complaint six days after filing his formal complaint with the Army EEO office and before the Army had an opportunity to investigate the claim. DSMF ¶ 19; see 29 C.F.R. § 1614. 107(a)(3). Judgment was entered on June 19, 2012. Santiago I. Plaintiff did not appeal the dismissal. DSMF ¶ 19. A month later, on July 17, 2012, Santiago requested reinstallation of his appeal for non-selection before the OFO. Docket No. 13-3. After 180 days had passed, Santiago filed this action on September 16, 2013. Compl. On January 21, 2014, defendants filed a motion to dismiss on the grounds of res judicata and failure to exhaust administrative remedies, which was denied. Docket Nos. 11, 27. 4

DISCUSSION I. Exhaustion of Administrative Remedies Santiago claims that defendants retaliated against him for his protected activities by non-selection and reassignment. Compl. ¶ 7. In order to advance a discrimination claim in federal court, Santiago must first exhaust his available administrative remedies. Brown

4 Defendants again raise res judicata in this motion for summary judgment, but have not rejected. See Docket No. 27; see Lebron-Rios v. U.S. Marshal Serv., 341 F.3d 7, 14-15 (1st Cir. 2003); Murthy v. Vilsack, 609 F.3d 460, 466 (D.C. Cir. 2010).

v. Gen. Servs. Admin., 425 U.S. 820, 832 (1976). 5

A. Non-selection Exhaustion includes a statutory obligation to speak with an EEO counselor within 45 days of adverse employer action. 29 C.F.R. § 1614.105; Roman-Martinez v. Runyon, 100 F.3d 213, 216-17 (1st Cir. 1996). Defendants argue that Santiago failed to meet this requirement regarding his non-selection claim. 6 Failure to comply with these requirements does not erect a jurisdictional bar to suit, however, but operates as a statute of limitations defense. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). It is an affirmative defense, which the defendant must plead and prove. Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); see also Thomas v. Vilsack, 718 F. Supp. 2d 106, 118 (D.D.C. 2010). Where the moving party bears the ultimate burden of proof, it is not enough to point to an insufficient showing by the Torres Vargas v.

Santiago Cummings critical issue weighs against the party be it the movant or the nonmovant [that] would

Perez v. Volvo Car Corp., 247 F.3d 303, 310 (1st Cir. 2001). -selection was filed on June 21, 2010, alleging non-selection in February 2009. DSMF ¶ 13. Both parties admit that Santiago was again not selected after an emailed job posting in July 2009. ASMF ¶¶ 6-7. Both parties stipulate that Santiago made his first EEO contact on April 27, 2010, more than 45 days

5 ailure to exhaust administrative remedies, defendants here seek summary judgment contending that Santiago did not speak to an EEO counselor within 45 days of the adverse action of non-selection. Docket No. 27; 29 C.F.R. § 1614.105.

6 Defendants make no similar failure-to-exhaust argument with respect to the 45 day obligation for the retaliatory reassignment claim.

after each of those instances of non-selection. DSMF ¶ 13. Summary judgment is therefore -selection occurring in February and July of 2009. The parties also stipulate, however, that a third instance of non-selection occurred in January 2011. ASMF ¶ 8. Defendants do not raise a date for first EEO contact (if any) following this non-selection. aintiff has never denied his failure to meet this obligatory deadline and offers no viable theory as to how these claims can be , at 16. However, defendants improperly assign this duty of establishment to plaintiffs. As an affirmative conclusive evidence on the issue. See Torres Vargas, 149 F.3d at 35. Summary judgment

on this ground is denied as to the January 2011 non-selection.

B. Reassignment Defendants next argue that Santiago has not exhausted administrative remedies with respect to his claim of retaliatory reassignment. This claim, it will be remembered, was dismissed by this court in Santiago I ustion process. DSMF ¶ 19. The question, then, is whether Santiago completed that process before returning to court to file the present case. The record establishes that he did not. Rather, the EEO dismissed his retaliatory reassignment claim pursuant to 29 C.F.R. 1614.107(a)(3) once he filed Santiago I, and Santiago does not allege that he ever attempted to revive this claim after its dismissal. DSMF ¶ 16. He requested reinstallation of his appeal for non- selection, but does not mention reassignment in that document. Docket No. 13-3. Santiago argues that the retaliatory assignment claim can be bootstrapped onto the non-selection claim and share in its proper exhaustion of remedies. Docket No. 47 at 6-7. A claim of retaliation for filing an administrative charge with the EEOC may ordinarily be bootstrapped onto the other Title VII claim or claims raised in the administrative charge and considered by the district court even though it has not been put through the administrative process. Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d 81, 86-87 (1st Cir. 2008); see also Clockedile v. N.H. Dep't of Corr., 245 F.3d 6 (1st Cir. 2001). This

discrimination complained of to the [EEOC] e.g., the retaliation is for filing the agency complaint itself Clockedile, 245 F.3d at 6. Shared factual allegations can also establish the requisite reasonable relation for bootstrapping. Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 22 (1st Cir. 2014). However, Santiago does not allege that he was reassigned in retaliation for filing an administrative charge with the EEOC; rather, he alleges only that he was reassigned in retaliation for his work as an EEO officer. Compl. As for shared factual allegations, the retaliatory reassignment claim is largely dependent on the actions of Cushman, the employee responsible for his reassignment. But Santiago does not allege in his first administrative complaint that Cushman played any role in his discrimination. This reassignment claim thus does not assert retaliation for his previous EEO filing for non- selection, nor does it grow out of the discrimination complained of to the agency at that time. Clockedile, 245 F.3d at 6. Without the ability to bootstrap this claim onto a properly exhausted Title VII claim, the reassignment claim has not exhausted its remedies and summary judgment is granted. II. Title VII Retaliation Claim

A. Non-Selection Despite proper exhaustion of administrative remedies for at least one of the non- selection claims, the government argues that Santiago matter of law.

Santiago can bring a claim of retaliation according to the anti-retaliation provision of Title VII. 42 U.S.C. § 2000e-3(a). To make out a prima facie case of retaliation Santiago must show that (1) he engaged in an activity protected by Title VII, (2) he suffered adverse employment decisions, and (3) that there is a causal connection showing that the adverse action was taken because of the protected activity. Calero-Cerezo v. U.S. , 355 F.3d 6, 55 (1st Cir. 2004).

For purposes of summary judgment, defendants do not contest the first two elements of a retaliation claim, but assert that Santiago cannot establish the third element of his prima facie case, namely, a causal connection between the protected conduct and the must establish that his or her protected activity was a but-for cause of the alleged adverse action Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2520 (2013).

action. Ponte v. Steelcase Inc., 741 F.3d 310, 321 (1st Cir. 2014). The causal connection is, h Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003). burden of establishing a prima facie case o DeCaire v. Mukasey, 530 F.3d 1,

19 (1st Cir. 2008); see also Collazo, 617 F.3d at 49 50 (finding temporal proximity of 11 days between first protected activity and termination sufficient to establish prima facie case). However, three- and four-month periods have been held insufficient to establish a causal connection based on temporal proximity. See Calero-Cerezo, 355 F.3d at 25; Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997); Hughes v. Derwinski, 967 F.2d 1168, 1174 75 (7th Cir. 1992). Santiago describes his protected activity as his involvement as a counselor in six EEO claims. The six claims occurred between 2007 and 2009, and his remaining non-selection claim arose in 2011. Docket No. 37-2; ASMF ¶ 8. More than two years had lapsed between the allegedly protected activity and the adverse action. While causality is not shown through temporality here, evidence of discriminatory or disparate treatment between the protected activity and the adverse employment action can be sufficient to show the required causal connection. Che, 342 F.3d at 38. If names, dates, incidents, and supporting testimony . . . give rise to an inference of discriminatory animus, the dispute must be subjected to the fact finding process. Petitti v. New England

Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir. 1990) (quoting Lipsett v. Univ. of P.R., 864 F.2d 881, 895 (1st Cir. 1988)). Santiago alleges that the Executive Officer and Deputy Commander Figueroa, and Pedersen were openly bothered by six EEOC claims against management. DSMF ¶¶ 3-4, 6. The installation commander, Cushman, subject of complaints. DSMF ¶ 6. Figueroa accused Santiago of not watching Pederse

back. Id. ¶ 3. Santiago expressed in his deposition that Pederse changed once Figueroa made that comment. PSMF ¶ 3. Pedersen discouraged Santiago

from applying for the permanent director position and ultimately he was not hired, despite the fact that he had been acting as director for three years. DSMF ¶¶ 2-3, 9. Santiago does not mention in the record which personnel are responsible for decisions on hiring. Statements made by non-decision-lly are insufficient, Gonzalez v. El Dia, Inc., 304 F.3d 63, 70 (1st Cir. 2002) (citing Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36 (1st Cir.2001)); see also Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 96 (1st Cir.1996). All statements and comments made by Pedersen, Figueroa, and Cushman are therefore not informative as to the discriminatory animus preceding the reassignment without information as to who operates as the decision-maker. Moreover, Santiago does not cite to animus arising from management other than expressed unhappiness at being the subject of claims, and DSMF. ¶ 6, 13. Ambiguous comments or stray remarks

Torres-Alman v. Verizon Wireless Puerto Rico, Inc., 522 F. Supp. 2d 367, 391 (D.P.R. 2007) (citing Moreno Morales v. ICI Paints, 383 F.Supp.2d 304, 316 (D.P.R.2005)). Santiago thus does not establish causation through either temporality or discriminatory animus. See Collazo, 617 F.3d at 46; Che, 342 F.3d at 38. Accordingly, summary judgment is granted as to -selection claim.

B. Reassignment Even if Santiago had exhausted all administrative remedies for his retaliatory reassignment claim, dismissal as a matter of law is still warranted. For many of the same reasons discussed above, Santiago does not establish a genuine dispute as the material element of causation. The parties agree that Santiago requested reassignment in 2011, but once offered other positions said he preferred to stay at his current post. Id. ¶ 8. Cushman then proceeded to transfer Santiago to logistics. Id. Santiago asserts that his reassignment would not have transpired but for his protected work for the EEOC. Temporality is not shown, as the six claims comprising the protected activity transpired between 2007 and 2009, and Santiago was reassigned on March 8, 2011. As for discriminatory animus, Santiago does not allege that Figueroa and Pedersen were involved in his reassignment, thus their alleged behavior is not probative. It is unclear whether Cushman was the final decision-maker regarding the reassignment. Even assuming that was his role, Santiago does not cite to animus arising from Cushman other than his expressed unhappiness at being the subject of claims. Ambiguous comments and stray remarks are not probative. Accordingly, and in the alternative to judgment for failure to exhaust, summary judgment is granted as to the reassignment claim.

CONCLUSION For the reasons above, defendant s motion for summary judgment is GRANTED. IT IS SO ORDERED. In San Juan, Puerto Rico, this 31st day of July, 2015. S/Bruce J. McGiverin BRUCE J. MCGIVERIN

United States Magistrate Judge

HECTOR SANTIAGO,

Plaintiff, v. UNITED STATES DEPARTMENT OF THE ARMY, et al., Defendants.

Civil No. 13-1700 (BJM)

OPINION AND ORDER Hector Santiago filed a complaint against the United States Department of the Army and John McHugh, Secretary of the Army. Santiago, a civilian Army employee who

retaliated against him for his role in processing discrimination claims, resulting in his non- selection for a promotion and his reassignment, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and other federal laws. 1

government moves to dismiss on the grounds of res judicata and failure to exhaust

administrative remedies, and in the alternative moves for summary judgment for failing to adduce admissible evidence of retaliation. Docket No. 34. 2

Santiago opposed the motion. Docket No. 47. The government replied. Docket No. 55. This case is before me on consent of the parties. Docket Nos. 14- granted.

1 Santiago also claims a constitutional violation, and retaliation by the denial of training. Compl. ¶¶ 5.15, 6.2. Defendants allege that the constitutional claim is preempted by Title VII and the Civil Service Reform Act. Docket No. 34 at 12-14. Defendants also allege that the denial of training was a direct result of budget cuts, and affected employees other than Santiago. Id. at 4-5. motion. Docket No. 47 at 6, 8.

2 The government cannot move to dismiss at this stage in the proceedings, having filed a responsive pleading and presented matters outside the pleadings to the court. Fed. R. Civ. P. 12. The res judicata and failure to exhaust arguments are thus considered under the summary judgment standard. Id.

STANDARD OF REVIEW Fed. R. Civ. P. 56(a). lved in

Calero- , 355 F.3d 6, 19 (1st Cir. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The initial

burden on summary judgment lies always with the moving party; it is tasked with of a genuine dispute as

to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where, as in the usual case, the moving party would not at trial be saddled with the burden of proof, it may discharge this threshold responsibility in two ways, either by Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000), or Celotex, 477 U.S. at 325; see

Plumley v. S. Container,

Inc. the record revealing the presence of a meaningful dispute, McCarthy v. Nw. Airlines, Inc.,

56 F.3d 313, 315 (1st Cir. 1995). cannot

Greenburg v. P.R. Mar. Shipping Auth., 835 in the light most hospitable to the party opposing summary judgment, indulging all Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st

meta Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 Medina-Muñoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

BACKGROUND Except as otherwise noted, the following facts are those I consider undisputed and facts. 3

See Docket Nos. I. Factual Background Santiago started his career as a civilian employee of the Army in 2001 when he accepted a Management Assistant position at Fort Buchanan. DSMF ¶ 1. In 2002, Santiago started doing collateral duty as an EEO Counselor, and moved to the EEO office full time as an EEO specialist in August 2007. Id. In April 2008, the EEO Director, Magda Figueroa Acting EEO Director. Id. ¶ 2. Santiago continued to perform those duties, as well as the duties of EEO Specialist and EEO Counselor, until his reassignment in May 2011. Id. Santiago claims that while acting as Director he performed the same duties that Figueroa performed as Director. ASMF ¶¶ 23, 29-32, 57-58. Defendants present evidence to the contrary and claim that Santiago was not responsible for writing letters of acceptance and dismissal, nor for completing supervisory duties. RSMF ¶¶ 23, 29-32, 57-58.

3 Local Rule 56 requires parties at summary judgment to submit brief, numbered statements of facts, supported by citations to admissible evidence. It responsibility to ferret through the record to discern whether any material fact is genuinely in CMI Capital Market Inv. v. González-Toro, 520 F.3d 58, 62 (1st Cir. 2008), and prevents litigants iven case to the district court, Mariani- , 511 F.3d 216, 219 (1st Cir. 2007). The when not properly opposed, and litigants ignore it Id.

While acting in his EEO capacity, Santiago was not a witness in any case and did not make determinations of discrimination, but served a management role and tried to coordinate potential mediation between the parties. DSMF ¶ 5. Santiago never opined that discrimination had occurred in any case; nor was he ever in a situation where he felt like he was opposing discrimination against another employee. Id. Santiago asserts that Figueroa and Gu Deputy to the Commander, retaliated against him based on his handling of six specific EEO claims transpiring between 2007 and 2009 that involved allegations against management. Id. ¶ 4; Compl. ¶¶ 5.11, 5.15. Defendants claim that Santiago does not remember the six claims or know anything about those claims that would cause management to retaliate. DSMF ¶ 4. Santiago admits to this lack of knowledge with the exception that he knows name was mentioned in one of these claims. PSMF ¶ 4.

Santiago contends that Figueroa was disappointed that her name was written into a settlement agreement for an EEO claim in which she was not a proper defendant, as the employer is the only proper defendant under federal discrimination laws. DSMF ¶ 3. Santiago t that Santiago irector of the EEO Office. Id. Santiago claims management did not hire him as the permanent Director because DSMF ¶¶ 3, 7. Santiago claims that Pederse him changed after Figueroa said that he s back. PSMF ¶ 3. Santiago felt it was retaliation when Pedersen expressed his anger that claims filed against him were unfair or outrageous. DSMF ¶ 6. Colonel Cu nstallation Commander, also expressed unhappiness at being the subject of complaints. Id. Santiago contends that he applied for the position of Supervisory EEO Specialist, informally known as the Director position, three times. ASMF ¶ 1. Defendants allege that Santiago has been inconsistent on this subject, and cite to his deposition where he claimed . RSMF ¶ 1. The parties agree, however, that the job was

advertised and Santiago was not selected in February 2009, July 2009, and January 2011. ASMF ¶¶ 3-4, 6-8. Santiago adds that he was interviewed for the Director position but was not hired. PSMF ¶¶ 3, 9. In 2011, Santiago requested a transfer from the EEO Office due to health problems and stress created by a work load and by doing two full-time jobs. DSMF ¶ 8. Cushman offered Santiago other positions, but he did not like them and said he preferred to stay in his EEO position. Id. Santiago expressed interest in applying for the Director position, but Pedersen discouraged him from doing so. Id. ¶ 9. Cushman transferred Santiago to a Logistics Management Specialist position on May 8, 2011. Id. ¶ 8. II. Procedural Background Equal Employment Opportunity office on April 27, 2010, alleging that he had been subjected to discrimination based on age, gender, and national origin, and in reprisal for his processing of various administrative complaints during his tenure in the EEO office. DSMF ¶ 13. Santiago subsequently filed his first administrative complaint of discrimination on June 21, 2010. Id. Santiago asserted a laundry list of alleged wrongs, including that he was subjected to retaliation when he was not selected for the EEO Director position in February 2009. Id.

denial of training in March 2010, but dismissed his non-selection claim and the denial of training in July 2009, as well as others, because they were not timely raised with the EEO counselor. Id. ¶ 14. Santiago qualifies that not all of his claims were dismissed for timeliness, but rather the majority were dismissed for failure to state a claim. PSMF ¶ 14. On May 27, 2011, Santiago appea Federal Operations ( OFO ) at the Equal Employment Opportunities Commission ( EEOC ). DSMF ¶ 15. Santiago filed his second formal complaint of discrimination with the Army on July 6, 2011, alleging that he had been reassigned for retaliatory reasons to another position at Fort Buchanan. Id. ¶ 16. Santiago initiated Civ. No. 11-1666 (GAG)

Santiago I on July 12, 2011, only 90 days after filing his appeal, and six days after filing his second administrative complaint. Id. In Santiago I, the court held that Santiago had started the process to exhaust his remedies based on the filing of two administrative claims, but ultimately failed to complete the process. Id. ¶ 19. With regard to the first, which raised claims for denial of training and non-selection, Santiago appealed to the EEOC, but then filed his claim in this court after 90 days, without allowing the EEOC to rule on the appeal or waiting for 180 days to pass as required by the applicable regulations. Id.; see 29 C.F.R. § 1614.409. The reassignment claim, the subject of Santiago as dismissed because he filed his judicial complaint six days after filing his formal complaint with the Army EEO office and before the Army had an opportunity to investigate the claim. DSMF ¶ 19; see 29 C.F.R. § 1614. 107(a)(3). Judgment was entered on June 19, 2012. Santiago I. Plaintiff did not appeal the dismissal. DSMF ¶ 19. A month later, on July 17, 2012, Santiago requested reinstallation of his appeal for non-selection before the OFO. Docket No. 13-3. After 180 days had passed, Santiago filed this action on September 16, 2013. Compl. On January 21, 2014, defendants filed a motion to dismiss on the grounds of res judicata and failure to exhaust administrative remedies, which was denied. Docket Nos. 11, 27. 4

DISCUSSION I. Exhaustion of Administrative Remedies Santiago claims that defendants retaliated against him for his protected activities by non-selection and reassignment. Compl. ¶ 7. In order to advance a discrimination claim in federal court, Santiago must first exhaust his available administrative remedies. Brown

4 Defendants again raise res judicata in this motion for summary judgment, but have not rejected. See Docket No. 27; see Lebron-Rios v. U.S. Marshal Serv., 341 F.3d 7, 14-15 (1st Cir. 2003); Murthy v. Vilsack, 609 F.3d 460, 466 (D.C. Cir. 2010).

v. Gen. Servs. Admin., 425 U.S. 820, 832 (1976). 5

A. Non-selection Exhaustion includes a statutory obligation to speak with an EEO counselor within 45 days of adverse employer action. 29 C.F.R. § 1614.105; Roman-Martinez v. Runyon, 100 F.3d 213, 216-17 (1st Cir. 1996). Defendants argue that Santiago failed to meet this requirement regarding his non-selection claim. 6 Failure to comply with these requirements does not erect a jurisdictional bar to suit, however, but operates as a statute of limitations defense. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). It is an affirmative defense, which the defendant must plead and prove. Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); see also Thomas v. Vilsack, 718 F. Supp. 2d 106, 118 (D.D.C. 2010). Where the moving party bears the ultimate burden of proof, it is not enough to point to an insufficient showing by the Torres Vargas v.

Santiago Cummings critical issue weighs against the party be it the movant or the nonmovant [that] would

Perez v. Volvo Car Corp., 247 F.3d 303, 310 (1st Cir. 2001). -selection was filed on June 21, 2010, alleging non-selection in February 2009. DSMF ¶ 13. Both parties admit that Santiago was again not selected after an emailed job posting in July 2009. ASMF ¶¶ 6-7. Both parties stipulate that Santiago made his first EEO contact on April 27, 2010, more than 45 days

5 ailure to exhaust administrative remedies, defendants here seek summary judgment contending that Santiago did not speak to an EEO counselor within 45 days of the adverse action of non-selection. Docket No. 27; 29 C.F.R. § 1614.105.

6 Defendants make no similar failure-to-exhaust argument with respect to the 45 day obligation for the retaliatory reassignment claim.

after each of those instances of non-selection. DSMF ¶ 13. Summary judgment is therefore -selection occurring in February and July of 2009. The parties also stipulate, however, that a third instance of non-selection occurred in January 2011. ASMF ¶ 8. Defendants do not raise a date for first EEO contact (if any) following this non-selection. aintiff has never denied his failure to meet this obligatory deadline and offers no viable theory as to how these claims can be , at 16. However, defendants improperly assign this duty of establishment to plaintiffs. As an affirmative conclusive evidence on the issue. See Torres Vargas, 149 F.3d at 35. Summary judgment

on this ground is denied as to the January 2011 non-selection.

B. Reassignment Defendants next argue that Santiago has not exhausted administrative remedies with respect to his claim of retaliatory reassignment. This claim, it will be remembered, was dismissed by this court in Santiago I ustion process. DSMF ¶ 19. The question, then, is whether Santiago completed that process before returning to court to file the present case. The record establishes that he did not. Rather, the EEO dismissed his retaliatory reassignment claim pursuant to 29 C.F.R. 1614.107(a)(3) once he filed Santiago I, and Santiago does not allege that he ever attempted to revive this claim after its dismissal. DSMF ¶ 16. He requested reinstallation of his appeal for non- selection, but does not mention reassignment in that document. Docket No. 13-3. Santiago argues that the retaliatory assignment claim can be bootstrapped onto the non-selection claim and share in its proper exhaustion of remedies. Docket No. 47 at 6-7. A claim of retaliation for filing an administrative charge with the EEOC may ordinarily be bootstrapped onto the other Title VII claim or claims raised in the administrative charge and considered by the district court even though it has not been put through the administrative process. Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d 81, 86-87 (1st Cir. 2008); see also Clockedile v. N.H. Dep't of Corr., 245 F.3d 6 (1st Cir. 2001). This

discrimination complained of to the [EEOC] e.g., the retaliation is for filing the agency complaint itself Clockedile, 245 F.3d at 6. Shared factual allegations can also establish the requisite reasonable relation for bootstrapping. Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 22 (1st Cir. 2014). However, Santiago does not allege that he was reassigned in retaliation for filing an administrative charge with the EEOC; rather, he alleges only that he was reassigned in retaliation for his work as an EEO officer. Compl. As for shared factual allegations, the retaliatory reassignment claim is largely dependent on the actions of Cushman, the employee responsible for his reassignment. But Santiago does not allege in his first administrative complaint that Cushman played any role in his discrimination. This reassignment claim thus does not assert retaliation for his previous EEO filing for non- selection, nor does it grow out of the discrimination complained of to the agency at that time. Clockedile, 245 F.3d at 6. Without the ability to bootstrap this claim onto a properly exhausted Title VII claim, the reassignment claim has not exhausted its remedies and summary judgment is granted. II. Title VII Retaliation Claim

A. Non-Selection Despite proper exhaustion of administrative remedies for at least one of the non- selection claims, the government argues that Santiago matter of law.

Santiago can bring a claim of retaliation according to the anti-retaliation provision of Title VII. 42 U.S.C. § 2000e-3(a). To make out a prima facie case of retaliation Santiago must show that (1) he engaged in an activity protected by Title VII, (2) he suffered adverse employment decisions, and (3) that there is a causal connection showing that the adverse action was taken because of the protected activity. Calero-Cerezo v. U.S. , 355 F.3d 6, 55 (1st Cir. 2004).

For purposes of summary judgment, defendants do not contest the first two elements of a retaliation claim, but assert that Santiago cannot establish the third element of his prima facie case, namely, a causal connection between the protected conduct and the must establish that his or her protected activity was a but-for cause of the alleged adverse action Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2520 (2013).

action. Ponte v. Steelcase Inc., 741 F.3d 310, 321 (1st Cir. 2014). The causal connection is, h Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003). burden of establishing a prima facie case o DeCaire v. Mukasey, 530 F.3d 1,

19 (1st Cir. 2008); see also Collazo, 617 F.3d at 49 50 (finding temporal proximity of 11 days between first protected activity and termination sufficient to establish prima facie case). However, three- and four-month periods have been held insufficient to establish a causal connection based on temporal proximity. See Calero-Cerezo, 355 F.3d at 25; Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997); Hughes v. Derwinski, 967 F.2d 1168, 1174 75 (7th Cir. 1992). Santiago describes his protected activity as his involvement as a counselor in six EEO claims. The six claims occurred between 2007 and 2009, and his remaining non-selection claim arose in 2011. Docket No. 37-2; ASMF ¶ 8. More than two years had lapsed between the allegedly protected activity and the adverse action. While causality is not shown through temporality here, evidence of discriminatory or disparate treatment between the protected activity and the adverse employment action can be sufficient to show the required causal connection. Che, 342 F.3d at 38. If names, dates, incidents, and supporting testimony . . . give rise to an inference of discriminatory animus, the dispute must be subjected to the fact finding process. Petitti v. New England

Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir. 1990) (quoting Lipsett v. Univ. of P.R., 864 F.2d 881, 895 (1st Cir. 1988)). Santiago alleges that the Executive Officer and Deputy Commander Figueroa, and Pedersen were openly bothered by six EEOC claims against management. DSMF ¶¶ 3-4, 6. The installation commander, Cushman, subject of complaints. DSMF ¶ 6. Figueroa accused Santiago of not watching Pederse

back. Id. ¶ 3. Santiago expressed in his deposition that Pederse changed once Figueroa made that comment. PSMF ¶ 3. Pedersen discouraged Santiago

from applying for the permanent director position and ultimately he was not hired, despite the fact that he had been acting as director for three years. DSMF ¶¶ 2-3, 9. Santiago does not mention in the record which personnel are responsible for decisions on hiring. Statements made by non-decision-lly are insufficient, Gonzalez v. El Dia, Inc., 304 F.3d 63, 70 (1st Cir. 2002) (citing Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36 (1st Cir.2001)); see also Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 96 (1st Cir.1996). All statements and comments made by Pedersen, Figueroa, and Cushman are therefore not informative as to the discriminatory animus preceding the reassignment without information as to who operates as the decision-maker. Moreover, Santiago does not cite to animus arising from management other than expressed unhappiness at being the subject of claims, and DSMF. ¶ 6, 13. Ambiguous comments or stray remarks

Torres-Alman v. Verizon Wireless Puerto Rico, Inc., 522 F. Supp. 2d 367, 391 (D.P.R. 2007) (citing Moreno Morales v. ICI Paints, 383 F.Supp.2d 304, 316 (D.P.R.2005)). Santiago thus does not establish causation through either temporality or discriminatory animus. See Collazo, 617 F.3d at 46; Che, 342 F.3d at 38. Accordingly, summary judgment is granted as to -selection claim.

B. Reassignment Even if Santiago had exhausted all administrative remedies for his retaliatory reassignment claim, dismissal as a matter of law is still warranted. For many of the same reasons discussed above, Santiago does not establish a genuine dispute as the material element of causation. The parties agree that Santiago requested reassignment in 2011, but once offered other positions said he preferred to stay at his current post. Id. ¶ 8. Cushman then proceeded to transfer Santiago to logistics. Id. Santiago asserts that his reassignment would not have transpired but for his protected work for the EEOC. Temporality is not shown, as the six claims comprising the protected activity transpired between 2007 and 2009, and Santiago was reassigned on March 8, 2011. As for discriminatory animus, Santiago does not allege that Figueroa and Pedersen were involved in his reassignment, thus their alleged behavior is not probative. It is unclear whether Cushman was the final decision-maker regarding the reassignment. Even assuming that was his role, Santiago does not cite to animus arising from Cushman other than his expressed unhappiness at being the subject of claims. Ambiguous comments and stray remarks are not probative. Accordingly, and in the alternative to judgment for failure to exhaust, summary judgment is granted as to the reassignment claim.

CONCLUSION For the reasons above, defendant s motion for summary judgment is GRANTED. IT IS SO ORDERED. In San Juan, Puerto Rico, this 31st day of July, 2015. S/Bruce J. McGiverin BRUCE J. MCGIVERIN

United States Magistrate Judge

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