Alicea v. Wilkie

BLANCA ALICEA, Plaintiff, v. ROBERT WILKIE, Secretary Department of Veterans Affairs Defendant.

CIVIL NO. 17-2298 (RAM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

March 31, 2020

OPINION AND ORDER

RAÚL M. ARIAS-MARXUACH, U.S. District Judge

Pending before the Court is Defendant David J. Shulkin's, Secretary of the Department of Veterans Affairs, Motion for Summary Judgment, accompanied by a Statement of Uncontested Facts and Memorandum of Law in Support of Summary Judgment. (Docket Nos. 50, 51 and 54). For the reasons discussed below, having considered the parties' submissions both in opposition and support of the same, the Court hereby GRANTS Defendant's Motion for Summary Judgment. (Docket No. 50).

I. PROCEDURAL BACKGROUND

On November 17, 2017, Plaintiff Blanca Alicea ("Alicea" or "Plaintiff") sued David J. Shulkin, M.D., the Secretary of the United States Department of Veterans Affairs, and the United States Department of Justice requesting that the Court prohibit the Veteran Affairs Caribbean Health Center (the "VA") from terminating her employment at said hospital. (Docket No. 1). This filing was defective for failure to comply with Local Rule 3. See L. CV. R. 3.

Plaintiff filed her Verified Amended Complaint on November 20, 2017. (Docket No. 3). As in her original Complaint, Plaintiff alleged that Defendant violated Equal Employment Opportunity ("EEO") waiver requirements under 29 U.S.C. § 626(f). Furthermore, Alicea argues that Defendant unlawfully interfered with her federal statutory employment rights as prohibited by 29 U.S.C. § 626(f)(4) and/or 42 U.S.C. § 1983. (Id. ¶¶ 17-20) by attempting to "unlawfully coerce plaintiff into withdrawing an EEO discrimination complaint under threat of termination." (Id. ¶ 14). Lastly, Alicea contends that Defendant may be subject to prosecution for interference with a pending administrative investigation as well as tampering with and retaliating against witnesses in connection with an administrative proceeding. (Id. ¶ 22). Defendant filed his Answer to Amended Complaint on February 22, 2018, denying all allegations. (Docket No. 13).

Plaintiff filed her Second Amended Complaint on June 30, 2018. (Docket No. 21). In addition to reiterating her aforementioned claims regarding unlawful interference with statutory rights, witness tampering and violation of waiver requirements, Plaintiff added two additional causes of action: (1) violations of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et. seq.; and (2) unlawful workplace retaliation. (Id. ¶ 27-34). Defendant subsequently filed his Answer to Second Amended Complaint, once again denying all of Plaintiff's claims. (Docket No. 23).

On September 25, 2019, Defendant filed a Motion for Summary Judgment and Statement of Uncontested Facts ("SUF"). (Docket Nos. 50 and 51). Defendant filed a Memorandum of Law in Support of Motion for Summary Judgment on September 30, 2019. (Docket No. 54). In response, on October 29, 2019, Plaintiff filed an Opposition to Defendant's Motion for Summary Judgment, accompanied by an Opposing Statement of Material Facts ("Opposition"). (Docket Nos. 57 and 57-1). Additionally, Plaintiff filed a Supplement to her Opposition that included a statement of additional facts in dispute. (Docket No. 62).

On November 22, 2019, Defendant filed a Reply asserting that Plaintiff's Opposition was not supported by record citations nor cross references her Opposing Statement of Material Facts in violation of Local Rule 56(c) and thus, should not be considered by the Court. (Docket No. 63 ¶¶ 2-3).

II. LEGAL STANDARD

A motion for summary judgment is governed by Fed. R. Civ. P. 56(a). Summary judgment is proper if the movant shows that (1) there is no genuine dispute as to any material fact and (2) they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A dispute is 'genuine' if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party." Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008). A fact is considered material if it "may potentially 'affect the outcome of the suit under governing law.'" Albite v. Polytechnic Univ. of Puerto Rico, Inc., 5 F. Supp. 3d 191, 195 (D.P.R. 2014) (quoting Sands v. Ridefilm Corp., 212 F.3d 657, 660-661 (1st Cir. 2000)).

The moving party has "the initial burden of demonstrat[ing] the absence of a genuine issue of material fact with definite and competent evidence." Mercado-Reyes v. City of Angels, Inc., 320 F. Supp. 344, at 347 (D.P.R. 2018) (quotation omitted). The burden then shifts to the nonmovant, to present "competent evidence to rebut the motion." Bautista Cayman Asset Co. v. Terra II MC & P, Inc., 2020 WL 118592, at 6* (quoting Méndez-Laboy v. Abbott Lab., 424 F.3d 35, 37 (1st Cir. 2005)). A nonmoving party must show "that a trialworthy issue persists." Paul v. Murphy, 2020 WL 401129, at *3 (1st Cir. 2020) (quotation omitted).

While a court will draw all reasonable inferences in favor of the non-movant, it will disregard conclusory allegations, unsupported speculation and improbable inferences. See Johnson v. Duxbury, Massachusetts, 931 F.3d 102, 105 (1st Cir. 2019). Moreover, the existence of "some alleged factual dispute between the parties will not affect an otherwise properly supported motion for summary judgment." Scott v. Harris, 550 U.S. 372, 379 (2007) (quotation omitted). Hence, a court should review the record in its entirety and refrain from making credibility determinations or weighing the evidence. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000).

In this District, summary judgment is also governed by Local Rule 56. See L. CV. R. 56(c). Per this Rule, an opposing party must "admit, deny or qualify the facts supporting the motion for summary judgment by reference to each numbered paragraph of the moving party's statement of material facts." Id. Furthermore, unless the fact is admitted, the opposing party must support each denial or qualification with a record citation. Id.

Additionally, Local Rule 56(c) allows an opposing party to submit additional facts "in a separate section." L. CV. R. 56(c). Given that the plain language of Local Rule 56(c) specifically requires that any additional facts be stated in a separate section, parties are prohibited from incorporating numerous additional facts within their opposition. See Natal Pérez v. Oriental Bank & Trust, 291 F. Supp. 3d 215, 218-219 (D.P.R. 2018) (quoting Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 32 (1st Cir. 2010) and Malave-Torres v. Cusido, 919 F.Supp. 2d 198, 207 (D.P.R. 2013)).

If a party opposing summary judgment fails to comply with the rigors that Local Rule 56(c) imposes, "a district court is free, in the exercise of its sound discretion, to accept the moving party's facts as stated." Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007). Thus, litigants ignore this rule at their peril. See Natal Pérez, 291 F. Supp. 3d at 219 (citations omitted).

III. FINDINGS OF FACT

To make findings of fact, the Court analyzed Defendant's Statement of Uncontested Facts in support of Motion for Summary Judgment ("SUF") (Docket No. 51) and Plaintiff's Opposing Statement of Material Facts (Docket No. 57-1), as well as her statement of additional facts in dispute provided in the Supplement to her Opposition. (Docket No. 62). It is worth noting that Plaintiff uses identical language and record citations in every one of her fourteen (14) denials to the VA's SUF. (Docket No. 57-1 ¶¶ 9-15; 17-22; 28). In other words, Plaintiff relies exclusively on the same nine (9) pages of her deposition testimony as well as her statements to the EEO to attempt to controvert facts.¹

After only crediting material facts that are properly supported by a record citation and uncontroverted, the Court makes the following findings of fact:

1.Plaintiff was born on January 13, 1962. (Docket No. 51 ¶ 1).

2.Plaintiff was fifty-five (55) years old when she was terminated in 2017. (Id.).

3.On August 2, 2010, Alicea was assigned to the position of "Health Science Specialist" in the Office of the Chief of Staff, Infection Control Program at the Veterans Administration Caribbean Healthcare System (the "VACHCS" or "VA"). (Id. ¶ 2).

4.Alicea maintained this position throughout her employment at the VACHCS. (Id.).

5.Plaintiff received within-grade pay increases in 2012, 2014 and 2016. (Id. ¶ 6).

6.Mirsonia M. Martínez-Morales (Martínez) held the position "Infection Control Coordinator GS-13" and was Plaintiff's immediate supervisor from 2010 through 2017. (Id. ¶ 3).

7.Martinez was born in April 1965 and was fifty-two (52) years old at the time of Plaintiff's termination. (Id. ¶ 4).

8.Plaintiff had five (5) coworkers, namely: Rafael Cabán, fifty-nine (59) years old; Veronika Kerkado, sixty (60) years old; Nancy Roman, forty-three (43) years old; Damaris Román, thirty-eight (38) years old; and Zydnia Pomales, sixty-six (66) years old. (Id. ¶ 5).

9.These coworkers also received within-grade increases during their employment. (Id. ¶ 7).

10.Plaintiff received performance appraisals during her employment at the VA. (Id.).

11.Plaintiff's overall performance rating for the year 2010 was "outstanding." (Exhibit No. 62-14 at 1).

12.Plaintiff's overall performance rating for the year 2011 was "outstanding." (Exhibit No. 62-14 at 3).

13.Plaintiff's overall performance rating for the year 2012 was "fully successful." (Exhibit No. 62-14 at 5).

14.Plaintiff's overall performance rating for the year 2013 was "fully successful." (Exhibit No. 62-14 at 7).

15.Plaintiff's overall performance rating for the year 2014 was "fully successful." (Exhibit No. 62-14 at 9).

16.Plaintiff's overall performance rating for the year 2015 was "fully successful." (Exhibit No. 62-14 at 11).

17.Plaintiff's overall performance rating for the year 2016 was "fully successful." (Exhibit No. 62-14 at 13).

18.Said appraisals contained the following five

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