Cervantes v. Int'l Hospitality Assocs.

261 F.Supp.3d 171

Alejandra LAVALLE CERVANTES, Plaintiff,

v.INTERNATIONAL HOSPITALITY ASSOCIATES, S. en C. (SE), d/b/a Hotel La Concha, et al., Defendants.

Civil No. 14–1356 (BJM)

United States District Court, D. Puerto Rico.

Signed May 31, 2016

Jane A. Becker–Whitaker, Jane Becker Whitaker, PSC, San Juan, PR, for Plaintiff.

Robert A. Fleming, Guaynabo, PR, for Defendants.

OPINION AND ORDER

BRUCE J. McGIVERIN, United States Magistrate Judge

Alejandra Lavalle Cervantes ("Lavalle") brought this action against International Hospitality, Inc. and International Hospitality Associates, S. en C. (SE), d/b/a Hotel La Concha (collectively, "the Hotel"), alleging discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. , and several state-law provisions.¹ Docket No. 25. Lavalle contends the Hotel failed to provide a reasonable accommodation, and that after she lodged a discrimination complaint and attended an administrative proceeding to explore that complaint, the Hotel fired her and cited her prior use of a false social security number as a pretext for her retaliatory termination. The Hotel successfully moved to dismiss some of the claims, leaving only the ADA discrimination and retaliation claims, the Law 44 claim, the Law 80 claim, and the Article 1802 claim.² Docket No. 24. The Hotel now moves for summary judgment on the remaining claims, Docket Nos. 54, 66, and Lavalle opposed. Docket No. 60. The case is before me on consent of the parties. Docket No. 29.

For the reasons set forth below, the motion is GRANTED IN PART .

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the movant shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" only if it "is one that could be resolved in favor of either party." Calero–Cerezo v. U.S. Dep't of Justice , 355 F.3d 6, 19 (1st Cir. 2004). A fact is "material" only if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions" of the record materials "which it believes demonstrate the absence" of a genuine dispute of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The court does not act as trier of fact when reviewing the parties' submissions and so cannot "superimpose [its] own ideas of probability and likelihood (no matter how reasonable those ideas may be) upon" conflicting evidence. Greenburg v. P.R. Mar. Shipping Auth. , 835 F.2d 932, 936 (1st Cir. 1987). Rather, it must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs–Ryan v. Smith , 904 F.2d 112, 115 (1st Cir. 1990). The court may not grant summary judgment "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. But the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and may not rest upon "conclusory allegations, improbable inferences, and unsupported speculation." Medina–Muñoz v. R.J. Reynolds Tobacco Co. , 896 F.2d 5, 8 (1st Cir. 1990).

BACKGROUND

Except where otherwise noted, the following facts are drawn from the parties' Local Rule 56³ submissions.⁴

International Hospitality Associates, S. en C. (SE), operated Hotel La Concha in San Juan, Puerto Rico, until 2014. SUMF ¶ 1.⁵ In September 2009, Lavalle applied to be a part-time bartender in the Hotel's Lobby Bar ("Lobby Bar"). SUMF ¶ 2. At that time, she completed an employment application in which she attested to the veracity of the information contained therein and provided a false social security number. SUMF ¶¶ 3–4; Docket No. 59–1 at 1. To establish her work eligibility, she completed an I–9 form, and submitted a forged social security card and certification of no prior criminal record that relied on the false social security number. SUMF ¶ 5. She also submitted a Florida identification card, the authenticity of which is not disputed. Lavalle was hired, received an employee handbook, and began working as a part-time bartender. SUMF ¶ 7. The employee handbook prohibits providing false information or documentation to the Hotel, and provides for termination of an employee who does so. SUMF ¶ 6. In October 2010, Lavalle became a lawful permanent resident (a fact unknown to the Hotel at the time), and voluntarily resigned in December of that year. SUMF ¶ 7; Docket No. 60–15.

In November 2011, Lavalle re-applied to work as part-time bartender in the Lobby Bar, this time using a different social security number. SUMF ¶ 8. To establish her work eligibility, she completed an I–9 form, and submitted a lawful-permanent-resident card, social security card, and certification of no prior criminal record. SUMF ¶ 9. The authenticity of these documents is not disputed. See SUMF ¶ 64. The Hotel re-hired Lavalle in December 2011. SUMF ¶ 8. That same month, Marianne Medero, the Hotel's payroll manager, received Lavalle's employment application and discovered an incongruity between the social security number she used during her first term of employment and the one she recently provided. SUMF ¶¶ 11–12; Docket No. 52–4 at ¶¶ 6, 7. She relayed the incongruity to Eduardo Ortiz Lopez ("Ortiz"), an external human resources consultant whom the Hotel contacted on a "regular basis" to "provid[e] recommendations" on employment matters. Docket No. 52–5 at ¶¶ 1–3. Ortiz advised the payroll manager to "continue business as usual until he investigated further." SUMF ¶ 13.

After making "additional inquiries" into the incongruent social security numbers in December 2011, Ortiz "determined" that "unless [Lavalle] was lawfully issued two distinct social security cards ... [she] had provided false information" to the Hotel and "most likely ... was using" false documents. SUMF ¶ 16; Docket No. 52–5 at ¶ 5. Ortiz's declaration does not specify the nature of the "additional inquiries" he made. See Docket No. 52–5 at ¶ 5. Before providing a recommendation on the matter, Ortiz contacted the U.S. Department of Homeland Security ("Homeland Security") to obtain guidance. SUMF ¶ 17. Ortiz was referred to Agent Ricardo Morales ("Agent Morales"), who told Ortiz that he would check Homeland Security's records and allegedly asked him to put off any internal employment decision on the matter until he provided guidance.⁶ SUMF ¶ 18. Having received no response by January 2012, Ortiz again requested Agent Morales's guidance and the latter responded that he would provide information after reviewing Lavalle's file. SUMF ¶¶ 19–20. Ortiz did not hear back from Agent Morales and "placed [the] investigation on hold" until the latter provided a response. SUMF ¶¶ 20–21; Docket No. 52–5 ¶ 10. This being the case, Lavalle continued working in the Lobby Bar. SUMF ¶ 22.

The Lobby Bar opens at 10:00 a.m., generally closes sometime after midnight, and is busiest during nights and weekends. SUMF ¶ 23. The Lobby Bar is staffed by one daytime bartender and three to five nighttime bartenders. SUMF ¶¶ 23–24.

The single daytime shift starts when the bar opens and runs until approximately 5:30 p.m. SUMF ¶ 23. From Monday through Friday, this shift was occupied by full-time employee Jonathan Ruiz ("Ruiz"); Ruiz's days off were covered by other full- or part-time bartenders. SUMF ¶ 26. The various nighttime shifts are staggered throughout the night, fluctuate throughout the week, and are rotated among the various nighttime bartenders. SUMF ¶¶ 23–25. Lavalle worked as one of the nighttime bartenders three to four times per week. SUMF ¶ 31. While the Hotel claims bartenders are responsible for preparing and serving beverages, cleaning the bar area, and charging customers, SUMF ¶ 25, Lavalle claims that bartenders did not clean the bar area. Docket No. 60–2 ¶ 14.

In October 2012, Lavalle informed the Hotel's food and beverage director, Mike Rivera ("Rivera"), that she could no longer work the nighttime bartender shift because she was taking medication that required her to sleep at night. SUMF ¶ 27. She also provided documents from her doctor, William Noguera ("Noguera"), who diagnosed Lavalle with cerebral dysrhythmia. SUMF ¶ 27. The Hotel now disputes the authenticity of those documents.⁷ At the time, however, Rivera interpreted Lavalle's request as one for a reasonable accommodation, and so discussed the various ways the Hotel could accommodate her. SUMF ¶¶ 27, 29–30. When queried about the single day shift position at the Lobby Bar, Rivera told Lavalle that he could not offer that shift because Ruiz occupied it. SUMF ¶ 30. And because Rivera could not identify any other daytime bartender vacancies, he offered Lavalle a waiter position at Voga, a restaurant in the Hotel that serves breakfast and lunch. SUMF ¶ 28. Lavalle accepted the position, and so the Hotel scheduled Nicolas Lambides to work the nighttime bartender position she vacated. SUMF ¶ 35. Lavalle claims that at some point after she requested an accommodation, another employee, Melissa Fiallos, was hired to occupy a daytime bartender position in the Hotel's pool bar, and that she was never offered that position. OSMF ¶ 30; Docket No. 60–2 at ¶¶ 13, 18. She does not specify, however, the date or approximate time period when that position became vacant. See Docket No. 60–2 at ¶¶ 13, 18.

As a waiter at Voga, Lavalle worked during the daytime and was responsible for making beverages, serving food and drinks, and charging customers for their meals. SUMF ¶¶ 36–37. Lavalle...