Bonilla-Ramirez v. MVM, Inc.

MARTHA I. BONILLA-RAMIREZ, Plaintiff, v. MVM, INC., et al. Defendants.

CIVIL NO. 15-1586 (PAD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

March 30, 2017

OPINION AND ORDER

Delgado-Hernández, District Judge.

Plaintiff Martha Bonilla-Ramírez was employed by MVM Security, a contractor of the United States Immigration and Customs Enforcement of the Department of Homeland Security "DHS-ICE"). Following her dismissal, she initiated this action against MVM, MVM's General Counsel Christopher McHale, DHS-ICE, the U.S. Department of Justice and various federal officials, complaining about gender discrimination, retaliatory discharge, defamation, tortious interference with employment contract, and intentional infliction of emotional distress under Federal and Puerto Rico law.¹

On May 23, 2016, the court dismissed (i) the RICO claims against the Federal Defendants and MMM; and (ii) the claims against McHale (Docket No. 66); on May 25, 2016, it dismissed the Law 80, Law 100 and Law 115 claims against the Federal Defendants (Docket No. 68); and on June 17, 2016, it dismissed the defamation and tortious interference with employment contract claims against them (Docket No. 83). Only the Title VII and state claims against MVM remain.Before the court is MVM's "Motion for Summary Judgment" (Docket No. 71), which plaintiff opposed (Docket No. 86). MVM replied (Docket No. 100).² For the reasons explained below, defendant's motion is GRANTED and the case DISMISSED.

I. STANDARD OF REVIEW

Summary judgment is appropriate 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 a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The purpose of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)(quoting, Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).

A factual dispute is "genuine" if it could be resolved in favor of either party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), and "material" if it potentially affects the outcome of the case in light of applicable law. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004). As to issues on which the nonmovant has the burden of proof, the movant need to no more than aver absence of evidence to support the nonmoving party's case. Celotex Corp., 477 U.S. at 325; Mottolo v. Fireman's Fund Ins. Co., 43 F.3d 723, 725 (1st Cir. 1995). All reasonablefactual inferences must be drawn in favor of the party against whom summary judgment is sought. Shafmaster v. United States, 707 F.3d 130, 135 (first Cir. 2013). The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Record review shows absence of genuine factual dispute as to the facts identified in the section that follows.

II. BACKGROUND

A. ICE Contract and Standard of Conduct Applicable to Plaintiff.

MVM is a security services firm serving U.S. Government clients including the US Immigration and Customs Enforcement of the Department of Homeland Security ("ICE"). See, Docket No. 71, MVM's "Statement of Uncontested Facts in Support of Motion for Summary Judgment" ("SUMF") at ¶ 1. ICE conducts detention, health, welfare, transportation and deportation of illegal alien detainees and coordinates their final removal from the United States. In Puerto Rico, MVM provides services to ICE pursuant to a Contract ("ICE Contract") at several facilities, including the General Services Administration ("GSA") Center in Guaynabo, which is located in the territory of Fort Buchanan, and the Luis Muñoz Marín International Airport ("LMM Airport"). SUMF at ¶ 2. Employees working under the ICE Contract and other MVM government contracts in Puerto Rico are required to obtain and maintain security clearance by the U.S. Government. SUMF at ¶ 3.³

Pursuant to the ICE Contract, MVM must immediately remove an employee from duty if any disqualifying information concerning the employee is received or confirmed by the ICE Contracting Officer Representative ("COR") or the Government. SUMF at ¶ 5.⁴ It provides that ICE may direct MVM to remove any employee who has been disqualified either for security reasons or for being unfit to perform duties as determined by the COR or other ICE representative. Upon such direction, MVM must take action immediately and notify the COR when the employee is removed from duty. SUMF at ¶ 6.⁵ Elpidio Nuñez-Cordero was Chief of Detention Operations, Department of Homeland Security and COR for the ICE Contract.

B. Plaintiff's Employment.

On March 5, 2007, plaintiff began working for MVM as an on-call Detention Officer ("DO") at the GSA Center. Sometime between 2011 and 2012, she was assigned to a post at the LMM Airport. SUMF at ¶ 7. Assigned posts are covered at all times by DO's. SUMF at ¶ 4.⁶ Thus, plaintiff had to comply with the General Post Order applicable to her assigned post at the LMM Airport, which provides that the detention officer cannot "leave the post to which you are assigned until properly relieved or reassigned by the Shift Supervisor or the COR." SUMF ¶ 8.⁷To this end, if a DO has to take a break while on duty, he/she has to notify the supervisor. SUMF at ¶ 4.⁸

C. MVM's and ICE's Standards of Conduct.

According to the MVM Standards of Conduct, which plaintiff received as part of her employment with MVM, the following are examples of inappropriate conduct that "will not be tolerated by MVM" and may result in discipline up to and including immediate termination of employment: (1) abandoning post or leaving post without proper authority (Docket No. 74, Exh. 4, p. 1 at ¶ 13); (2) violation of MVM or client policies, procedures, rules, regulations, or contract requirements, including security regulations (id. at ¶¶ 10 and 20); (3) unauthorized activities on post duty including but not limited to working on personal projects or hobbies (id. at ¶ 22); (4) utilization of personal cellular phones and any other personal communications equipment (id. at ¶ 24); (5) fraternization with MVM employees while on duty (id. at ¶ 25); (6) any other reason deemed by MVM to be contrary to the interests of the company or its clients (id. at ¶ 29). See also, SUMF ¶ 9.⁹

Pursuant to the ICE PR "Minimum Standards of Conduct" and "Removal from Duty" (Docket No. 74, Exh. 4 at pp. 4-6), which plaintiff received as part of her employment with MVM, the following are examples of disqualifying information, which require immediate removal from the ICE Contract: (1) unethical or improper use of official authority or credentials (id. at p. 5 ¶ 14); (2) violation of security procedures or regulations (id. at ¶ 17); (3) misuse of equipment (id. at ¶ 16); and (4) conducting personal affairs during official time (id. at ¶ 10); see also, SUMF at ¶ 10.¹⁰

D. The LMM Airport Badge, Access to Secured Doors and Prohibited Piggyback.

In order to work at the airport, plaintiff had to go through a process to obtain an Airport Identification Badge, which is different from plaintiff's employee badge. SUMF at ¶ 11. To obtain this ID, DOs, including plaintiff, must fill out an application form and go through the Security Identification Display Area ("SIDA") training which explains the use of the ID and related security issues. The Airport ID application provides that the holder of the ID has to comply with certain federal regulations including 49 C.F.R. §1540. SUMF at ¶ 12.

To access LMM Airport's secured and restricted doors (not open to the general public), an authorized person has to register the Airport ID through a card reader, enter her personal code (chosen by the person), wait for a green light on the reader and then open the door. In order to avoid the entrance of unauthorized persons to sterile areas, only one person, with limited exceptions, should go through the door at a time. Thus, the person has to wait to ensure that the door closes so that the next person goes through the same process. SUMF at ¶ 13.¹¹

Everyone who has an Airport ID has to take the SIDA training and comply with the Aerostar rules for accessing sterile doors, which includes a class that advises what they can and cannot do, including piggybacking.¹² SUMF at ¶¶ 14, 16. Piggyback is a serious security violation which places the security of the Airport at risk. SUMF at ¶ 18.¹³ The sterile area in the Airport,which has stricter security measures than other areas, is the area beyond the Transportation Security Association ("TSA") checkpoint that leads to the gates. SUMF at ¶ 15.

E. The June 14, 2014 Events.

On June 14, 2014, plaintiff was assigned to work at MVM's Post at the LMM Airport. Although the parties disagree as to the exact time when plaintiff began her shift that day, it is uncontested that she was on her shift during the time relevant to this case (9:00 a.m. to 11:00 a.m.). SUMF at ¶ 19.¹⁴ The assigned Supervisor DO was César Méndez. SUMF at ¶ 20. DOs had to report any issues or problems arising during the shift to Méndez. Id.¹⁵

Early in the morning of June 14, 2014, another DO, Alexandra Rodríguez, called plaintiff by phone and later met her at the LMM Airport Post.¹⁶ SUMF at ¶ 21. Rodríguez went in uniform to the LMM Airport, before going to her work shift at the GSA Center, in order to leave her boyfriend at the airport. SUMF at ¶ 22. Rodríguez and plaintiff met with Rodríguez' boyfriend at the Jet Blue terminal/gate, where his flight was leaving from, and went to have coffee. SUMF at ¶ 23.¹⁷ To reach the Jet Blue terminal, plaintiff and Rodríguez went through the LMM Airport'ssecurities doors and accessed restricted areas, where they were supposed to comply with the established procedure,...