OPINION AND ORDER
Pending before the Court is Defendant’s motion for summary judgment, (Docket # 23), and the opposition thereof. (Docket # 26). For the reasons stated below, Defendant’s motion for summary judgment is GRANTED in part and DENIED in part.
Plaintiff Lenin Sepulveda (“Sepulveda”) filed this case on April 26, 1999, for facts occurring between 1995-97, which purportedly create a cause of action under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et. seq., the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et. seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701-9 et. seq. Plaintiff worked at all times relevant to the complaint at the United States Department of Agriculture, (“USDA”), holding the position of Rural Development Community Manager. He claims that between 1995-97 he was threatened with discharge through a reduction in force (“RIF”) by his immediate supervisor Andrés Irizarry, and by Ileana Echegoyen, then State Director of USDA Rural Development in Puerto Rico. Plaintiff also alleges that Andrés Irizarry specifically discriminated against him because of his age and diabetic condition, making pejorative remarks about him in front of other co-workers. In addition, Sepulveda alleges that Mr. Irizarry made attempts to transfer him from his assigned work area, Yauco, to USDA offices located elsewhere, which were scheduled for closing.
Defendant argued in his motion for summary judgment: (1) that Plaintiff has failed to establish a prima facie case under the Rehabilitation Act because his diabetes does not constitute a disability within the meaning of the Act; and (2) that Plaintiff has also failed to establish a prima facie case of age discrimination under ADEA because no adverse action has been taken against him, and he has not been substituted in his position by someone outside the protected age group.
Plaintiffs opposition to Defendant’s motion alleges that there are material facts in controversy which preclude the entry of summary judgment. Particularly, Plaintiff points out to the following: (1) that he has Diabetes Mellitus Type II and a renal insufficiency which requires him to make frequent visits to the bathroom; (2) that on one occasion his supervisor Mr. Andrés Irizarry, instructed him to personally attend to and service every person in the waiting room and that as a result of that, he was unable to have lunch that day, which triggered a diabetic reaction to lack of regular food intake, (Docket #26, Ex. C, pp. 136-7); (3) also, that he endured pejorative remarks from Andrés Irizarry, such as:
• “I have said that apparently he works [in] the restrooms.” (Docket # 26, Ex. E, pp. 159-160).
• “You (Sepulveda) are a member of the little group of Mendoza’s diabetics.” (Id. p. 163).
• Irizarry also suggested that Plaintiff was at a medical appointment for a gynecological procedure when he commented to other employees: “Oh yes, I understand that Lenin has some scrapes pending.” (Docket #26, Ex. C, p. 185).
• Irizarry also ridiculed Plaintiff by asking if he is “pregnant.” (Id. at p. 186).
As far as disparate treatment and adverse employment actions, Plaintiff points out to the following facts:
• Plaintiff was excluded from a cash award granted to all other personnel regularly in the Yauco office, which Plaintiff managed. (Docket # 26, Ex. C., p. 175-6).
• Plaintiff received an “Opportunity to Improve” letter informing an adverse performance evaluation, when no letter was sent to Yauco’s previous manager who had a similar long-standing serious loan delinquency problem. (Docket # 26, Ex. G., p. 8).
• Plaintiff was precluded from posting a sign with the office hours available for the general public. (Docket # 26, Ex. E, pp. 174-77, Ex. C, p. 180).
• Defendants impeded Plaintiff from working in the San Germán District Office with Andrés Irizarry. Plaintiffs request would have constituted a career enhancing assignment because “at the District level, he will deal with other county offices in acting capacity when the RDM [Rural District Manager] is absent and he will deal with more complex projects with these entities.” (Docket #26, Ex. E, p. 75-6).
• Defendant allegedly attempted to disguise the discrimination as justified by Sepulveda’s inability to recondition the habitual and highly problematic Yauco office in his first few weeks aboard. (Docket # 26, Ex. C, p. 59-60).
• As expressed by Plaintiff in his deposition, his supervisor Mr. Irizarry, specifically told him to refrain from answering or refuting the disciplinary letters sent to him. (Id. at p. 59).
• Allegedly, the Defendant fictitiously decreased the loan delinquency rate in the Yauco office when two persons came in from other offices to help, in order to make Sepulveda appear incompetent. He purportedly accomplished this by allowing a detailed official to reamortize delinquent loans in order to make them appear as current, all without strict adherence to the administrative procedures. (Docket # 26, Ex. C pp. 164-8).
• Allegedly, Mr. Irizarry excluded Plaintiff from participating in a commission to revise job descriptions because he preferred a younger employee, and he also eliminated Plaintiff as a candidate for another position in the Caguas office because Sepulveda “was an older fellow.” (Id. at 185-6).
• Irizarry scornfully and in a mocking manner said to a group of employees in Plaintiffs presence, that he would request Plaintiffs “Medicare card,” implying that Sepulveda was old. (Id. at 185-6, and 8-9).
• Mr. Irizarry expressed to another employee that he wanted Sepulveda out of Yauco, Juana Diaz, and the agency. (Docket # 26, Ex. J p. 3 ¶ 7).
• As a result of all these incidents, Plaintiff is currently suffering from “Major Depression single in partial remission.” (Docket # 26, Ex. K).
II. Legal Analysis
A. Summary Judgment Standard
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 movant’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.,
In this regard, the First Circuit Court of Appeals has noted that for a dispute to be “genuine”, there must be sufficient evi
By like token, “material” means that the fact is one that might affect the outcome of the suit under the governing law.
Morris v. Government Development Bank of Puerto Rico,
In addition, when determining whether to grant summary judgment, the Court may not weigh the evidence.
Casas Office Machines, Inc. v. Mita Copystar America, Inc.,
B. American With Disabilities Act
Defendant cites the Supreme Court case of
Sutton v. United Air Lines,
Under [the EEOC approach, which defined a disability without regard to corrective or mitigating measures], courts would almost certainly find all diabetics to be disabled, because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities. A diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes. Thus, the [EEOC] guidelines approach would create a system in which persons often must be treated as members of a group of people with similar impairments, rather than as individuals. This is contrary to both the letter and the spirit of the ADA.
Id. at 2139.
In the aftermath of
Sutton,
several courts have had the opportunity to rule on the issue of when and under what conditions diabetes can be considered a disability for ADA purposes. By all accounts, it is a matter of degree. In partic
In the case at bar, Plaintiff has been unable to satisfy this standard. He has only come forward on his opposition to summary judgment with proof that his diabetes “requires medication, a fixed meal schedule, timely snack breaks, and the opportunity to use the bathroom very frequently during the work day.” Under these conditions, and taking into account the availability of corrective and mitigating measures, Plaintiffs diabetes does not constitute a substantial limitation to any major life activity.
See Williamson v. Int’l Paper Co.,
In addition, Plaintiff fails to show which, if any, of his major life activities are
C. Rehabilitation Act
Section 504(a) of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability ... be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The definition of disability by the statute is identical to the one provided by the ADA.
Tardie v. Rehabilitation Hosp. of Rhode Island,
[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standard applied under Title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et. seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections relate to employment.
29 U.S.C. § 794. Therefore, this Court’s finding that Plaintiff failed to satisfy her burden of showing a “disability” under the ADA mandates a dismissal of the Rehabilitation Act claim for the same reasons.
D. Age Discrimination in Employment Act
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a). The First Circuit has established that plaintiffs in ADEA discrimination lawsuits “bear the ultimate burden of proving that their ages were the determinative factor in their discharge, ‘that is that [they] would not have been fired but for [their] age.’ ”
Pages-Cahue v. Iberia Lineas Aereas de España,
In some cases, the plaintiff will have enough direct or “smoking gun” evidence to establish discrimination without more. Most likely, however, the plaintiff will possess little overt evidence of discrimination, and will have to rely on the much utilized burden-shifting standard enunciated in
McDonnell Douglas v. Green,
Under the standard first set forth in
McDonnell Douglas,
and later adapted to cases filed under the ADEA, plaintiff may establish a
prima facie
case by show
The statute is broad in terms of the conduct which it prohibits. It is not limited to proscribing discriminatory discharge, rather it includes discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment.” 29 U.S.C. § 623(a). “Courts have uniformly read this language to require a plaintiff ... to establish, as part of his
prima, facie
case, that he suffered so-called ‘adverse employment action.’ ”
Davis v. Town of Lake Park, Fla.,
In this case, the Court finds that Plaintiff has provided minimal factual evidence to satisfy the standard required to establish an adverse employment action. Although some of his allegations do not satisfy this standard
1
, he in fact has evidence which controverts defendants’ arguments. For example, Plaintiff has proof that he was unjustly excluded from a cash award granted regularly to all other personnel in the Yauco office, which Plaintiff managed. (Docket # 26, Ex. C., p. 175-6). He also stated that he received an “Opportunity to Improve” letter informing an adverse performance evaluation, when no letter was sent to Yauco’s previous manager who had a similar long-standing serious loan delinquency problem. (Docket # 26, Ex. G., p. 8). He stated that he was impeded from working in the San Germán District Office with Andrés Irizarry, when his request would have constituted a career enhancing assignment because “at the District level, he will deal with other county offices in acting capacity when the RDM [Rural District Manager] is absent and he will deal with more complex projects with these entities.” (Docket #26, Ex. E, p. 75-6). In addition, Mr. Irizarry, Plaintiffs supervisor, allegedly ordered him to refrain from answering or refuting the disci
Defendant alleges that Irizarry’s comments did not constitute harassment because Irizarry is ten (10) years older than Plaintiff. 2 In addition, Defendant argues that Irizarry’s comments constituted stray remarks unrelated to the decisional process itself and that they did not constitute direct evidence of discrimination.
Although stray remarks by themselves, lack the necessary link between the alleged speaker’s discriminatory remark and the adverse employment decision,
Ayala-Gerena v. Bristol Myers
—Squibb
Co.,
III. Conclusion
Based on the above, Defendant’s motion for summary judgment on Plaintiffs ADEA claim is DENIED. Defendants’ motion on Plaintiffs Americans With Disabilities Act/Rehabilitation Act claims (Count III) are GRANTED.
SO ORDERED.