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

1

Almaris Serrano-Colón, Plaintiff, v. Department of Homeland Security, Alejandro Mayorkas^[1] in his Official Capacity as Secretary of the Department of Homeland Security, and Richard Maldonado, Defendants.

Civ. No. 16-1268 (SCC)

United States District Court, D. Puerto Rico

December 22, 2021

OPINION AND ORDER

ILVIA CARREÑO-COLL UNITED STATES DISTRICT COURT JUDGE

Plaintiff Almaris Serrano-Colón brings this lawsuit against the Department of Homeland Security (“DHS”) and her supervisor Richard Maldonado, claiming that they violated the Rehabilitation Act, the Administrative Procedure Act, Title VII of the Civil Rights Act of 1964, the Fifth Amendment and Puerto Rico law by discriminating against her based on her fibromyalgia, pregnancy, status as a single mother, and Equal Employment Opportunity Commission (“EEOC”) complaints. Docket No. 24. The defendants moved for summary judgment, Docket No. 95, which we granted in part and denied in part, Docket No. 146. We granted them summary judgment on all but the Title VII claim. Id. Both the defendants and Serrano-Colón now move the Court to reconsider our decision. Docket Nos. 151, 157.

I. Motions for Reconsideration

The defendants and Serrano-Colón believe that either Federal Rule of Civil Procedure 59(e) or Rule 60(b) governs our reconsideration. Docket No. 151, pg. 2; Docket No. 157 pg. 2. We disagree. Rule 59(e), which is a procedural vehicle to alter or amend a judgment, “does not apply to motions for reconsideration of interlocutory orders from which no immediate appeal may be taken, including summary judgment denials.” Nieves-Luciano v Hernández-Torres, 397 F.3d 1, 4 (1st Cir. 2005) (citation omitted). And Rule 60(b), which is a procedural vehicle to seek relief from a final judgment, similarly does not apply to interlocutory orders. Farr Man & Co. v. M/V Rozita, 903 F.2d 871, 874 (1st Cir. 1990); see generally Watchtower Bible & Tract Soc'y of N.Y. v. Colombani, 712 F.3d 6, 10 (1st Cir. 2013) (“Ordinarily, a judgment is final . . . only if it conclusively determines all claims of all parties to the action.”). We are not bound by either of them. Roberts v. Winder, 16 F.4th 1367, 1385 (10th Cir. 2021) (“When determining whether to reconsider an interlocutory order, ‘the district court is not bound by the strict standards for altering or amending a judgment encompassed in Federal Rules of Civil Procedure 59(e) and 60(b),' which govern a district court's reconsideration of its final judgments.” (quoting Spring Creek Expl. & Prod. Co. v. Hess Bakken Inv., LLC, 887 F.3d 1003, 1024 (10th Cir. 2018))).

We, however, have the “inherent power” to reconsider our interlocutory orders “where error is apparent.” Fernández-Vargas v. Pfizer, 522 F.3d 55, 61 n.2 (1st Cir. 2008); see also Farr Man & Co., 903 F.2d at 875 (providing that an interlocutory order is “subject to the district court's discretionary power to alter it at any time prior to the entry of the final decree”). So we will evaluate the parties' motions for reconsideration under our discretionary power to revisit interlocutory orders.

A. Undisputed Facts^[2]

To provide context for our analysis, we recount the relevant undisputed facts. Serrano-Colón began working for the Transportation Security Administration (“TSA”) as a Transportation Security Officer (“TSO”) in 2007. UF 1. She is a single mother who claims that she was diagnosed with fibromyalgia in 2008. UF 5, 7. Generally, she worked for five days and then enjoyed two off. UF 4. But sometimes the TSA allowed her to work four days and then take three off. Id.

From 2010 until it dismissed her in 2015, the TSA had well-documented concerns about Serrano-Colón's attendance, timeliness, and ability to follow its procedures. UF 10. But she says that most of her absences were an unavoidable consequence of her fibromyalgia and 2015 pregnancy. UF 36. Absent an exigency, the TSA requires employees to arrive to work on time and follow specific attendance procedures. UF 11. If the employee fails to follow them, her absence may be coded as an absence without leave (“AWOL”). UF 12. From January to June 2010, Serrano-Colón took ten unscheduled absences. UF 15. A supervisor sent her a letter informing her that additional absences may lead to disciplinary measures. UF 16. But her absenteeism continued, resulting in another letter which cited her for unacceptable performance. UF 17. In the two months preceding December 13, 2010, she took eleven unscheduled absences. UF 22. She then received a letter placing her on restricted leave and a letter of reprimand. UF 23.

In 2013, the TSA charged her with submitting inaccurate time and attendance reports, being tardy, and failing to follow instructions. UF 27. Management sought to dismiss her, but an internal TSA board reduced her punishment to a fifteen-day suspension. Id. From October 2013 to May 2014, she took eleven unscheduled absences and was late to work seven times. UF 29. From August 2014 to January 2015, she took ten unscheduled absences, seven of which she reported less than sixty minutes before her shift or after her shift had started. UF 30. The TSA then issued her another letter placing her on restricted leave. UF 31. Her leave-restriction letters required her to submit medical documents justifying her absences, UF 31, but she provided acceptable documents for only some of them, Docket No. 109-1, pgs. 53-54; see also Id. at 57-58. From January to June 2015, she took thirty unscheduled absences. UF 30, 33. And in March 2015, she informed her supervisor that she was pregnant. UF 35.

In July 2015, the TSA issued her a notice of proposed removal based on her attendance issues. UF 50. In response, she said that her supervisors' disciplinary actions regarding her attendance constituted discrimination based on her disability and pregnancy, which, she says, made her absences and tardiness unavoidable. UF 51. In August 2015, the TSA dismissed her. UF 52. She appealed to an internal TSA board, which affirmed her dismissal. UF 54.

Between 2010 and 2015, she filed two complaints with the EEOC. The first, in 2011, alleged that the defendants had discriminated against her based on her disability. UF 24. And the second, in 2015, alleged that the defendants had discriminated against her based on her sex, pregnancy, single-mother status, and disability. UF 56.

As to her alleged disability, in her 2008 Family and Medical Leave Act (“FMLA”) paperwork, her doctor said that when her fibromyalgia flares up, she may miss a few days of work. Docket No. 109-1, pg. 71. Flare-ups might occur once or twice a month. Id. But the FMLA does not excuse an employee from providing notice of her absence according to TSA policy. Id. at 72. In her 2011 FMLA paperwork, her doctor said that she “had no restrictions, but may require frequent physician visits.” Id. at 80. Her medical documents did not say that she needed to be excused from the TSA's attendance procedures, such as arriving to work on time and reporting an unscheduled absence at least sixty minutes prior to her shift. Id. at 76-77.

Before we turn to the parties' motions for reconsideration, we preview why Serrano-Colón's claims fail. They all suffer from the same infirmities. The defendants have provided the Court ample evidence that they denied her advanced leave requests, reprimanded her, and ultimately dismissed her because of her long history of absenteeism, tardiness, and failure to follow TSA procedures. And even when she had the four-day work week that she says would have allowed her to fulfill the essential functions of her job (i.e., show up to work), she still struggled with attendance. Moreover, she has produced no evidence from which a reasonable jury could find that the defendants' proffered explanation for their actions was a sham to disguise discriminatory or retaliatory animus. With that said, we turn to the parties' motions.

B. The Defendants' Motion for Reconsideration

The defendants have asked us to reconsider two parts of our decision: (1) denying them summary judgment on Serrano-Colón's Title VII claim, and (2) dismissing her Puerto Rico law claims without prejudice. Docket No. 151, pg. 2.

1. Title VII

The defendants argue that we erred when we denied them summary judgment on Serrano-Colón's Title VII claim because, they say, she failed to establish her prima-facie case of discrimination and create a triable issue of fact as to pretext. Docket No. 151, pgs. 3, 7. We agree with them. First, in our earlier order, we failed to reach an element of her prima-facie case. Docket No. 146, pg. 20. That was a lapse because Serrano-Colón bore the burden of producing sufficient evidence to establish each element of her prima-facie case. Second, we determined that she had produced sufficient evidence of pretext based on our belief that she had consistently provided proper documents concerning her absences and sufficient evidence of animus by directing us to a single, vague comment that “they, ” whoever that may be, allegedly made about her pregnancy. Docket No. 146, pg. 21.

Our decision on pretext is not supported by the undisputed facts, see Docket No. 109-1, pgs. 53-54, 57-58, and our decision on animus is incorrect under First Circuit caselaw. We, thus, grant reconsideration of Serrano-Colón's Title VII claim.

Summary judgment is appropriate when the record demonstrates that 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); Alston v. Town of Brookline, 997 F.3d 23, 35 (1st Cir. 2021). In evaluating the record, we construe it in favor of the nonmovant, Serrano-Colón. Bryan v. Am. Airlines Inc., 988 F.3d 68, 74 (1st Cir. 2021). But she still “bears the burden of producing specific...