Serrano-Colón v. Dep't of Homeland Sec.

ALMARIS SERRANO-COLÓN, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY ET AL., Defendants.

CIV. NO.: 16-1268 (SCC)

UNITED STATES COURT FOR THE DISTRICT OF PUERTO RICO

July 19, 2021

OPINION AND ORDER

Plaintiff Almaris Serrano-Colón filed this action pursuant to the Court's original jurisdiction against Defendants Department of Homeland Security ("DHS"), the Transportation Security Authority ("TSA")¹ and Richard Maldonado for alleged disability discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq; disability, gender and other forms of discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq; violations of the Administrative Procedures Act, 5 U.S.C. § 551 et seq ("APA")²; violations of her rights under the Fifth Amendment of the United States Constitution; and, invoking the Court's supplemental jurisdiction, negligence and negligent infliction of emotional distress against Defendant Richard Maldonadoin violation of the Puerto Rico Civil Code, 31 L.P.R.A. § 5141. See Docket No. 24.³ Pending before the Court is Defendants' Motion for Summary Judgment. See Docket No. 95. Plaintiff opposed. See Docket No. 109. Defendant then replied to Plaintiff's opposition, see Docket Number 136, and Plaintiff surreplied, see Docket Number 143. For the reasons stated herein, Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

I. Background

On February 16, 2016, Plaintiff filed this action against Jeh Charles Johnson, as Secretary of DHS; the TSA and Richard Maldonado, bringing claims under the Rehabilitation Act, the APA, the Fifth Amendment and the Puerto Rico Civil Code. See Docket No. 1. Plaintiff later amended the Complaint, adding a cause of action under Title VII. See Docket No. 24. Plaintiff alleges that from 2008 to 2011, she was denied accommodations for her disability (fibromyalgia), encountered difficulty in obtaining leave under the Family and Medical Leave Act ("FMLA") and wrongly had certain absences marked Absent Without Leave ("AWOL"). Plaintiff further alleges that between 2013 and 2015, TSA management denied her requests for reduced work schedule, placed her on sick leave restriction requiring medical documentation,declined to provide her with advanced sick leave or leave without pay and coded her AWOL, eventually terminating her position. Plaintiff alleges that such behavior constituted discrimination based on her disability, gender and parental status and retaliation for her past Equal Employment Opportunity ("EEO") activity.

Defendants moved to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Plaintiff failed to state a claim upon which relief could be granted. See Docket No. 26. However, the Court stayed this matter pending the appearance of new legal representation for Plaintiff after she filed to appear pro se. See Docket Nos. 39 and 42. Consequently, the Court denied without prejudice Defendants' Motion to Dismiss and administratively closed the case pending appearance of Plaintiff's counsel. See Docket No. 42. Counsel eventually filed an appearance on Plaintiff's behalf, and Defendants answered the Amended Complaint. See Docket Nos. 43, 45.

On February 17, 2017, Plaintiff filed a petition under Chapter 13 of the Bankruptcy Code, which was later converted into a case under Chapter 7 of the Bankruptcy Code. See Docket No. 76. As part of the bankruptcy case, the current matter became property of Plaintiff's bankruptcy estate, to which Noreen Wiscovitch-Rentas was named trustee. See id. As trustee, Ms. Wiscovitch-Rentas was named a co-plaintiff to this action, given that she was a party with interest due to her role in the bankruptcy matter. See id. The bankruptcy case was eventually settled, and Ms. Wiscovitch-Rentas was consequently dismissed as a plaintiff to the current action. See Docket Nos. 144, 145.

After discovery, Defendants filed a Motion for Summary Judgment, arguing that Plaintiff cannot establish a prima facie cause of action under Title VII, that Rehabilitation Act claims are not cognizable given First Circuit case law, that her remaining federal-law claims are preempted by the Civil Service Reform Act, Pub. L. No. 94-454, 92 Stat. 1111 (1978) ("CSRA"), and the individual claims against Defendant Maldonado fail for an array of reasons. See Docket No. 95, 96 and 98. After numerous extensions of time and procedural incidents, Plaintiff opposed. See Docket Nos. 109, 111.

II. Undisputed Facts

In order to make its factual findings for the purposes of this Opinion and Order, the Court considered Defendants' Undisputed Statement of Material Facts ("DUSMF") at Docket Number 96; Plaintiff's Response Statement of Material Facts ("PRSMF") at Docket Number 109, Exhibit 1; Plaintiff's Additional Statement of Uncontested Material Facts ("PASUMF") at Docket Number 109, Exhibit 1; and Defendants' Answer to Plaintiff's Undisputed Statement of Material Facts ("DAPUSMF") at Docket Number 136.

1. Plaintiff began working for TSA as a part-time Transportation Security Officer ("TSO") at Mercedita/Ponce International Airport ("PSE") in Puerto Rico on October 14, 2007. DUSMF ¶ 1; PRSMF ¶ 1.

2. As a TSO, Plaintiff was responsible for screening passengers and their property at PSE to mitigate threats of aviation security. DUSMF ¶ 2; PRSMF ¶ 2.

3. TSOs must, as part of their job description, demonstrate the ability to repeatedly lift and carry items weighing up to seventy pounds, maintain the physical agility to ensure the ability to squat and bend and maintain the ability to walk up to two miles during a shift and to stand for prolonged periods of time. DUSMF ¶ 4; PRSMF ¶ 3.

4. Generally, Plaintiff's work schedule consisted of five days of work with two consecutive days off, although for some periods of time TSA permitted Plaintiff to work for four days each week and take three days off. DUSMF ¶ 8; PRSMF ¶ 8.

5. During her employment as TSO, Plaintiff was a single mother with two children. DUSMF ¶ 10, n.2; PRSMF ¶ 10.

6. Defendant Transportation Security Manager ("TSM") Richard Maldonado was aware of Plaintiff's parental status since 2008. PASUMF ¶ 4; DAPUSMF ¶ 4. 7. Plaintiff claims she was diagnosed with fibromyalgia in 2008. DUSMF ¶ 11; PRSMF ¶ 11.

8. Plaintiff's supervisor granted numerous paid and unpaid leave requests of Plaintiff from 2010 through 2015, permitting her to take time off to attend to personal needs and to take vacation. DUSMF ¶ 12; PRSMF ¶ 12.

9. Plaintiff was twice approved for TSA's voluntary leave transfer recipient program, through which she was eligible for other TSA employees to donate leave to her. Plaintiff received donated leave on one of the two occasions. DUSMF ¶ 13; PRSMF ¶ 13.

10. From 2010 to Plaintiff's removal in 2015, TSA took issue with Plaintiff's attendance record. DUSMF ¶ 16; PRSMF ¶ 16.

11. TSOs were required to request scheduled absences at least seven days in advance, and unscheduled absences at least sixty minutes in advance. DUSMF ¶ 17; PRSMF ¶ 17.

12. TSA attendance policies concerning absences without leave ("AWOL") required TSOs to obtain prior approval for all absences from duty, including requests for leave without pay ("LWOP"), except in the event of emergencies. DUSMF ¶ 18; PRSMF ¶ 18.

13. Pursuant to TSA policy, an employee is placed on AWOL status if she takes an unauthorized absence without providing the required administratively acceptable documentation in support of such an absence. AWOL is not a disciplinary action itself but may serve as the basis for a disciplinary action. DUSMF ¶ 18; PRSMF ¶ 19.

14. Beginning in 2014, TSA policy also stated that an employee's time may be charged as AWOL when an employee fails to report for duty without approval, has an unauthorized absence from the workplace during the workday or does not give proper notification for an absence. DUSMF ¶ 21; PRSMF ¶ 21.

15. Between January 10, 2010 and June 18, 2010, Plaintiff requested ten unscheduled absences, four of which fell immediately before or immediately after her days off. For nine of those ten absences, Plaintiff requested for leave under the Family and Medical Leave Act ("FMLA"). DUSMF ¶ 23; PRSMF ¶ 23.

16. On July 12, 2010, Supervisory Transportation Security Officer ("STSO") Lyanne Díaz issued Plaintiff a Letter of Counseling, which explained to Plaintiff that she was required to arrive at her assigned shift when scheduled. The Letter also cautioned Plaintiff that further unexcused absences could result in her being placed on leave restriction or in disciplinary action, including removal. The Letter itself did not constitute a disciplinary measure. DUSMF ¶¶ 24-26; PRSMF ¶¶ 24-26.

17. After three more unscheduled absences for which Plaintiff did not notify at least sixty minutes prior to her shift, STSO Díaz issued Plaintiff a non-disciplinary Letter of Guidance on November 25, 2010. The Letter cited Plaintiff for unacceptable performance for failing to follow instructions to call in a minimum of sixty minutes prior to her shift, and she must do so going forward. DUSMF ¶ 27; PRSMF ¶ 27.

18. During the following pay period, Plaintiff called out of work five more days. DUSMF ¶ 30; PRSMF ¶ 30.

19. Plaintiff submitted a letter to Maldonado on November 11, 2010 in which she explained that she was out of work on the five days in question due to her alleged medical condition but did not include supporting medical evidence or documentation from her physician. DUSMF ¶ 32; PRSMF ¶ 32.

20. Her AWOLs from the prior period were not removed, and she was informed that management did not find the documentation sufficient for the absences. DUSMF ¶¶ 33-34; PRSMF ¶¶ 33-34.

21. Plaintiff cannot point to any comments made by Defendants regarding her medical condition. DUSMF ¶ 35; PRSMF ¶ 35.

22. By December 13, 2010, Plaintiff had accumulated eleven instances of unscheduled absences and one tardy over the prior two months, including her five AWOLs from the prior pay period.

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