OPINION AND ORDER
Bеfore the Court is Defendant RG Mortgage Corporation’s (hereinafter Defendant or RG) Motion for Summary Judgment (Docket #30) and Plaintiffs opposition thereto (Docket #36). Defendant also moved to strike one of the exhibits filed as support for Plaintiffs aforementioned opposition (Docket #42), to which Plaintiff opposed (Docket #49). Defendant further moved to deem as admitted its statement of uncontested facts
(see,
Docket # 43). Plaintiff filed an opposition thereto (Docket # 51). After reviewing the parties’ filings, the evidence in the record and the applicable law, Defendant’s Motion to
Standard of Review
Fed.R.Civ.P. 56(b) provides that: “A party against whom a claim ... is asserted ... may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part [of the claims asserted against him/her].” The Court may grant the mov-ant’s motion for summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see also, Anderson v. Liberty Lobby, Inc.,
Once the movant has averred that there is an absence of evidence to support the nonmoving party’s case, the burden shifts to the nonmovant to establish the existence of at least one fact in issue that is both genuine and material.
Garside v. Oseo Drug, Inc.,
In order to defeat summary judgment, the opposing party may not rest on conelusory allegations, improbable inferences, and unsupported speculation.
See, Hdfield v. McDonough,
Factual and Procedural Background
Plaintiff in this case is Ms. Elizаbeth Rocca (hereinafter Plaintiff or Ms. Rivera). She alleged that RG, her employer, discriminated against her because of her age, disability and reasonable accommodation requests. She also claims that she was retaliated against for requesting reasonable accommodation and filing a complaint.
RG filed the instant motion for summary judgment, which Plaintiff opposed. However, RG asked the Court to deem its Statement of Uncontested Facts (hereinafter SUF) (Docket # 30-2) as admitted because Plaintiffs Opposition thereto (“Plaintiffs Statement of Contested and Uncontested Facts in Support of her Opposition to Defendant’s Motion for Summary Judgment”, at Docket # 36-2) did not comply with the mandate of Local Rule 56(c).
Plaintiffs opposition to RG’s Motion for Summary Judgment completely disregarded Local Rule 56’s mandate. The first paragraph of Plaintiffs Opposing Statement of Uncontested Facts (POSUF) states “[t]he plaintiff does not oppose the following paragraphs from defendant’s statement of facts: 1, 2, 5, 6, 8, 9, 10, 13, 14, 16 and 21.” See, Docket # 36-2 ¶ 1. However, Defendant’s SUF ¶¶ 5, 9-10, which were admitted by the Plaintiff in the very first paragraph to her POSUF, were subsequently denied by Plaintiff. For example, Plaintiff, in paragraphs 15 & 16 appeared to propose some additional facts followed by the following statement: “[d]ue to the aforementioned, ¶ 5 of DSOF is denied.” Docket # 36, ¶¶ 15 & 16. Then again, in paragraphs 28-31, Plaintiff, after proposing some facts, stated: “[d]ue to the aforementioned ¶¶ 9-12, 25 of DSOF are denied.” See, Docket # 36-2, ¶ 28-31. Furthermore, POSUF is silent as to Plaintiffs position with regards to Defendant’s proposed facts at SUF ¶¶ 3-4, 7,11-12,15, 24 & 26. Plaintiff attempted to create controversy as to Defendant’s SUF by simply proposing additional facts mingled together with Plaintiffs opposition to Defendant’s SUF, in clear contravention to Local Rule 56’s mandate. Also, many of the facts proposed by the Plaintiff, apparently 1 as additional facts, were identical to some of the facts proposed by RG. See, Docket # 36-2 ¶¶ 5-8, 22, 27, 29, 33-34, 51 & 58. Finally, key material facts, as the lack of internal complaints regarding the alleged disсrimination suffered by the Plaintiff were acknowledged in one paragraph, 2 only to be later contradicted in a different paragraph. 3 This kind of practice made it impossible to the Court to discern Plaintiffs version of the facts.
Local Rule 56(c) provides that
“[a] party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts. The opposing statement shall admit, deny orqualify the facts by reference to each numbered paragraph of the moving party’s statement of material facts and unless a fact is admitted shall support each denial or qualification by a record citation as required by this rule. The opposing statement may contain in a separate section additional facts, set forth in separate numbered paragraphs and supported by a record citation as required by subsection (e) of this rule.” (Our emphasis).
Notwithstanding the clear language of the aforementioned rule, Plaintiff ran afoul of it and filed an opposition in a convoluted way, failing to admit, qualify or deny at least eight facts proposed by Defendant and submitting additional facts that were not included in a separate section as required by the Rule. Furthermore, in some cases, Plaintiff merely re-stated facts already submitted by the Defendant in its SUF. By failing to comply with Local Rule 56, Plaintiff made the Court’s ruling in RG’s motion for summary judgment a very difficult task. Therefore, the Court will disregard Plaintiffs Oрposing Statement of Contested and Uncontested Facts (Docket # 36-2) and will deem Defendant’s SUF as admitted.
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This solution is consistent with Local Rule 56, and First Circuit precedent.
See,
Local Rule 56(e);
see also, Cabán Hernández v. Philip Morris USA, Inc.,
The Court will now narrate the uncontested facts, as supported by the record.
Uncontested Facts
Ms. Rivera began working for RG as a Closing Clerk on May 10, 1989. SUF ¶ 1. On or around February 2001, Plaintiff was promoted to the position of Closing Supervisor. She was supervised by Ms. Ritzi Robles (hereinafter “Robles”). SUF ¶2. At the beginning of her employment with RG, her relationship with Robles was normal, however, it changed when Plaintiff became a supervisor and Robles became a Manager. SUF ¶ 3. Plaintiff perceived that Robles had an attitude problem towards her, as well as towards other employees; Robles was rude, intransigent and a bad mouth. She yelled at employees and exerted too much pressure on them. Plaintiff believed that Robles had no business ethics. SUF ¶ 4.
On March 2005, Plaintiff complained with Mr. Víctor Galán (hereinafter Galán) and Ms. Marian Pereira, Human Resources Vice Prеsident (hereinafter Per-eira) about Robles’ behavior and attitude, and she asked Pereira to check up on Robles because she believed her attitude was improper. SUF ¶ 5. Around May 25, 2005, Plaintiff requested Robles some time off in order to attend her nephew’s high school graduation which was to be held on June 30, 2005. Robles, disrespectfully, suggested that Plaintiff take her nephew to the graduation, attend the ceremony, and then return to work that same day. Plaintiff complained and told Robles that she could not do that, to which Robles replied that she was the boss and would not discuss the matter any further. SUF
After the graduation incident, Plaintiff went to the State Insurance Fund (SIF) and alleged that she had psychological problems due to her work, that she was subject to a hostile work environment, and that her supervisor cursed in a loud voice. SUF ¶ 8. On June 22, 2005, Dr. Rinorah Saldaña Camacho (hereinafter Dr. Salda-ña), from the SIF, issued a Report of Psychological Evaluation (hereinafter the June 2005 Report) indicating that Plaintiff drove herself to the appointment, that her appearance was appropriate, that Plaintiff took care of her personal hygiene, did house chores and that she could administer her assets. The June 2005 Report also indicated that Plaintiffs memory was good and that her concentration and attention levels were appropriate. SUF ¶9. On July 12, 2005, Dr. Liliana Bicchi Consueg-ra (hereinafter Dr. Bicchi), from the SIF, issued a Special Medical Report regarding Plaintiffs psychiatric condition. According to Dr. Bicchi’s report, Plaintiff walked without help, appeared logical, coherent and relevant and her memory was good. SUF ¶ 10. Dr. Bicchi’s diagnosis was Panic Disorder. Id.
On August 11, 2005, Dr. Rafael H. Mi-guez (hereinafter Dr. Miguez), issued another Special Medical Report concluding that Plaintiffs emotional condition was not work related, and confirmed Dr. Bicchi’s diagnosis of Panic Disorder. SUF ¶ 11. On August 16, 2006, Plaintiffs psychiatrist diagnosed Plaintiff with recurrent moderate major depression, and a panic attack disorder. The doctor indicated that Plaintiff had no limitation of functional capacity, and that' she was able to engage in limited stress situations and engage in only limited interpersonal relations. His prognosis was: good with treatment. SUF ¶ 12. On August 17, 2005, Plaintiff was released from the SIF. SUF ¶ 13. On August 30, 2005, Plaintiffs psychiatrist issued a medical certificate indicating that she was receiving psychiatric treatment and needed to rest for seven days. SUF ¶ 14. On September 13, 2005, the SIF issued a decision concluding that Plaintiffs condition of Panic Disorder was not related to her employment. SUF ¶ 15. Plaintiff was on Worker’s Compensation leave from May 27, 2005 until August 17, 2005. SUF ¶ 16.
On August 2005, RG, voluntarily, and in order to avoid possible friction between Rivera and Robles, communicated to Plaintiff the opportunity to move to the REO Branch. Said division, which is part of the Closing Department, deals with the closing of repossessed properties. SUF ¶ 17. Plaintiff accepted the change and, on September 12, 2005, she was laterally transferred to the position of Supervisor in the REO Branch. At the REO Branch, Rivera was supervised by Carmen Sonia Me-léndez (Meléndez) and continued to enjoy the same salary and benefits. After Plaintiff moved to the REO Branch, she basically continued performing the same duties, only in a different floor. Plaintiff indicated that the REO area was a more relaxed area, and that she felt less pressured there. SUF ¶ 19. On September 26, 2005, Plaintiff filed a discrimination charge with the Puerto Rico Anti-Discrimination Unit (“ADU”), alleging age and disability discrimination. SUF ¶ 21. The only employee who allegedly participated in the discrimination against Plaintiff was Robles. SUF ¶ 26.
On June 23, 2006, Ms. Ismenia Isidor, Director of Servicing (hereinafter Isidor),
Applicable Law and Analysis
Plaintiffs claims are for discrimination under the American with Disabilities Act of 1990, 42 U.S.C.A. § 12101, et seq. (hereinafter ADA); the Age Discrimination in Employment Act 29 U.S.C.A. § 621-634 (hereinafter ADEA); and various Puerto Rico anti-discrimination laws. She also seeks relief for the alleged retaliation she suffered as a result of her complaint with the ADU and requests for reasonable accommodation. Defendant moves to dismiss Plaintiffs ADA claims on various grounds: (1) that Plaintiff is not a qualified individual with a disability; (2) that Plaintiff has suffered no adverse employment action, (3) that Plaintiff was not replaced by a non-disabled persоn nor was she treated less favorably than a non-disabled employee; (4) that, even if Plaintiff is considered a qualified individual with a disability, Plaintiff was, in fact, provided with the reasonable accommodation requested by her.
On the other hand, RG also alleges that Plaintiffs ADEA claim is without merit because she suffered no adverse employment action. Finally, RG posits that Plaintiff fails to establish a prima facie case of retaliation under either statute, because she suffered no adverse employment actions, these were not sufficiently severe to constitute the retaliatory action prohibited by the discrimination statutes, or they are not causally linked to her proteсted conduct. We will analyze each argument below.
ADA claim
The ADA prohibits “discrimination against an otherwise qualified individual based on his or her disability.”
Calero-Cerezo v. United States Department of Justice,
It is undisputed that Plaintiff suffered impairments in the period of time relevant to this case, to wit, a depression and panic disorder. See, SUF ¶¶ 9-11. However, Defendant contends that there is no evidence that Plaintiffs impairments limited any major life activity, nor that this limitation was substantial. Let’s see.
A major life activity is one that is of “central importance to daily life.”
Sullivan,
As such, the record before the Court shows that Plaintiffs impairments (depression and panic disorder) did not affect her major life activities. In any event, not every limitation complies with the ADA requirements. The limitation must be substantial and not only temporary, but permanent.
See, Ruiz Rivera,
Plaintiff alleges, that even if the record did not support a conclusion that she was disabled, as defined by the ADA, she still met the “regarded as” prong of the statute. Plaintiff is mistaken. There are two ways in which Plaintiff can demonstrate that her employer regarded her as a disabled, in order to qualify for ADA protection, to wit: (1) that the employer mistakenly believed that she had a physiсal impairment that substantially limited one or more major life activities, or (2) that the employer mistakenly believed that an actual, non-limiting impairment substantially limited one or more of her major life activities.
Sullivan,
In support of her contention that she was regarded as disabled by her employer, Plaintiff posits that her initial suрervisor, Ritzi Robles, would usually refer to her as the crazy one. Even if the Court was to admit this fact as an uncontested fact,
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it would still be insufficient to establish that RG regarded her as a disabled individual as defined by the ADA. Plaintiff presents no evidence to show that Robles was a decision-maker. It is well settled law that “stray work-place remarks, as well as statements made either by non-decision makers or by decision makers not involved in the decisional process, normally are insufficient, standing alone, to establish either pretext or discriminatory animus.”
González v. El Día, Inc.,
On this record, we cannot conclude that Plaintiff met her burden to еstablish that she was disabled under the meaning of the ADA, or that she was regarded as disabled byRG.
Because Plaintiff failed to establish that she was disabled or regarded as disabled by RG, the Court needs not entertain her claims regarding RG’s alleged failure to afford her with reasonable accommodation.
See, Freadman v. Metropolitan Property & Casualty Ins. Co.,
However, even if the Court assumed,
arguendo,
that she is disabled under the ADA, Plaintiffs arguments regarding RG’s failure to accommodate her disability also lack merit. First, it is uncontested that Plaintiff never requested reasonable accommodation from the Defendant.
See,
SUF ¶ 24. The ADA only imposes liability for an employer’s failure “to accommodate known physical or mental limitations.”
Freadman,
Plaintiffs only complaint to RG was that Robles was rude to her, and that she had an attitude problem. Specifically, she told Mrs. Pereira, Human Resources Vice President, that she could not deal with Robles anymore because she was bratty and inconsiderate. See, Docket # 38, Ex. 1A, at pp. 63-65. This complaint does not comply with the standard set forth above. However, even if we were to consider said request as a request for reasonable accommodation, after Plaintiff talked to Mrs. Pereira, and after the end of her sick leave, RG offered her a transfer to the REO Branch, and, in Plаintiffs own words, she agreed “because I [would] have nothing to do with [Robles].” Docket # 38, Ex. 1A, Plaintiffs Deposition at p. 72. Therefore, even if we concede that Plaintiff was disabled under the ADA, and that she requested accommodation, the record only shows that her one complaint to RG’s Human Resources was that she could no longer deal with Robles, and upon her return, RG granted her with just that. As such, her claim for failure to provide reasonable accommodation under the ADA fails. As such, Plaintiffs ADA claims will be DISMISSED with prejudice.
Retaliation
“The ADA’s retaliation provision states that no person shall discriminate against any individual because such individual has opposed any act or practice made unlаwful by this chapter.”
Freadman,
As to Plaintiffs alleged demotion, the record shows that Plaintiff changed positions twice after her problems with Robles began. First, when she returned from sick leave around September 2005, RG offered her a position as a Closing Supervisor (the same position she held before) in the REO Branch, which sells repossessed properties. This change cannot constitute a retaliatory adverse employment action. Plaintiff had requested a change in employment because she could no longer work with Robles. Furthermore, this change, which occurred in August 2005, took place before Plaintiff filed the discrimination charge on September 2005. See, SUF ¶¶ 17, 21. As such, there is no causal link between the employment action and the protected conduct. Also, the employment action cannot be said to be adverse, as Plaintiff retained basically the same duties, the same salary and benefits, and was now under the supervision of another person, as requested by her. See, SUF ¶ 19.
The second change of which Plaintiff complained was that, after she filed the discrimination charge, RG moved her back to the Closing Department, where Robles worked as a supervisor, taking away the accommodation previously afforded to her. See, Docket #36, p. 8. Although this move constituted an employment action, it was not an adverse one. Back in the Closing Department, Plaintiff was to hold the same position she held before being laterally transferred to the REO Branch, that is Supervisor of the Closing Department. See, SUF ¶ 20. Furthermore, Plaintiff admitted in her deposition that she was no longer supervised by Robles, and that she gets along with her new supervisor, enjoys working with him, and is happy working there. See, Docket # 38, Ex. 1A 80-81. As such, the change cannot be said to be an adverse employment action.
Even is we were to assume that the transfer back to the Closing Department was adverse, a causal link between that change and Plaintiffs complaint with the ADU is missing. Plaintiffs complaint with the ADU was filed on September 2005, and her transfer back to the Closing Department took place on June 23, 2006, that is, nine months after the complaint was filed. It is well settled law, that a large lapse of time between the protected conduct and the adverse employment аction militates against a plaintiff alleging retaliation who, as Plaintiff here, does not have direct evidence of discrimination.
See, Bennett v. Saint-Gobain Corp.,
Plaintiff further argued that Robles retaliated against her by making derogatory comments, calling her names and warning other employees that they should be careful because some employees could file grievance complaints against them, which Plaintiff took as a referenсe to her complaint. However, in order for an adverse employment action to be actionable for retaliation, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge for discrimination.”
Carmona-Rivera v. Puerto Rico,
As such, Plaintiffs retaliation claim under the ADA lacks merit and will be DISMISSED with prejudice.
ADEA claim
Under the ADEA, “an employer is prohibited from taking an adverse employment action against an employee because of the latter’s age.”
Bennett,
Retaliation under the ADEA
As explained above, there is no evidence in this record to support a finding that RG took any adverse employment action against the Plaintiff following her complaint with the ADU, and, as such, Plaintiff failed to make out a prima facie case of discrimination under the ADEA as well as under the ADA. Therefore, Plaintiffs retaliation claim under the ADEA is also DISMISSED with prejudice.
Pendent State Law Claims
The remainder of Plaintiffs claims are grounded on Puerto Rico law. Exer
SO ORDERED.
Notes
. We say ''apparently” because they were not included in a separate section as mandated by Local Rule 56, nor did they refer to a specific fact included by Defendant in its SUF.
. See, Docket # 36-2 ¶ 8 (stating that Plaintiff "never complained, nor filed any type of discrimination charge, nor an internal discrimination complaint, because of Robles' actions and omission against her.”)
.See, Docket # 36-2 ¶ 15 (stating that Plaintiff “complained about Robles' actions and omissions against her to Mr. Víctor Galán, Jr.”).
. Local Rule 56 allows the Court to deem proposed uncontested facts admitted only if these facts are supported by record citations. Defendant's SUF was properly supported by the record. Because Plaintiff failed to properly controvert these facts, Defendant's SUF is deemed admitted pursuant to Local Rule 56(e).
. Plaintiffs memorandum of law draw the Court's attention to Plaintiff's allegations to
the effect
that she cannot
engage in any
of the aforementioned major life activities. However, the Court does not take into consideration Plaintiff's complaints for two reasons. First, as stated earlier in this Opinion, the Court will not consider Plaintiff’s statement of uncontested facts because
she
failed
to
comply with Local Rule 56. Furthermore, Plaintiff's complaints are contrary to the medical evi
. As stated above, the Court rejected Plaintiff's statement of facts as non-compliant with the Local Rules, and inconsistent with her deposition testimony.