Vargas-Medina v. Ortho Biologics, LLC, Civil No. 15–2523 (ADC)

247 F.Supp.3d 169

Zulma VARGAS–MEDINA, Plaintiff,

v.ORTHO BIOLOGICS, LLC, et al., Defendants.

Civil No. 15–2523 (ADC)

United States District Court, D. Puerto Rico.

Signed March 30, 2017

Anibal Escanellas–Rivera, Escanellas & Juan, San Juan, PR, for Plaintiff.

Reinaldo Figueroa–Matos, McConnell Valdes, LLC, San Juan, PR, for Defendants.

OPINION AND ORDER

AIDA M. DELGADO–COLÓN, Chief United States District Judge

On, November 17, 2015, Zulma Vargas–Medina ("Vargas") filed a complaint against Ortho Biologics, LLC ("Ortho"),¹ claiming disability retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. , and related Puerto Rico statutes.² Plaintiffs seeks monetary and declaratory relief to remedy the alleged retaliation and her mental and emotional suffering.

On August 8, 2016, Ortho moved the Court to grant it summary judgment, ECF No. 14, and submitted its statement of uncontested, ECF No. 13. Vargas opposes the request for summary judgment, ECF No. 27, and submitted objections to defendant's statement of uncontested facts, ECF No. 27–1. With the Court's leave, ECF No. 29, Ortho filed a reply to Vargas's opposition, ECF No. 33, to which Vargas filed a sur-reply, ECF No. 39, 40. The Court now GRANTS Ortho's motion for summary judgment, and DISMISSES the complaint, ECF No. 1.

I. Preliminary matters

A. Vargas's discrimination claims

The complaint, discovery and much of the parties' motion practice hinged on Vargas's alleged disability—or lack thereof. However, Vargas's response in opposition to summary judgment clarifies that she "do[es] not have a cause of action for harassment and/or discrimination because of a disability or due to failure to provide a reasonable accommodation." ECF No. 27 at 1–2. Instead, Vargas claims that Ortho retaliated against her after she requested reasonable accommodation and filed her discrimination complaints. Id. Accordingly, the Court DISMISSES plaintiff's claims of disability discrimination and failure to provide reasonable accommodation in violation of the ADA and Puerto Rico Law 44.

Nonetheless, a plaintiff "may assert a claim for retaliation even if she fails to succeed on a disability claim." Fread m an v. Metropolitan Property and Cas. Ins. Co. , 484 F.3d 91, 106 (1st Cir. 2007) (citing Soile a u v. Guilford of Maine, Inc. , 105 F.3d 12, 16 (1st Cir. 1997). Thus, the Court will addresses Vargas's claims of retaliation.

B. Self-serving Affidavit³

In an attempt to dispute certain facts alleged by Ortho in its statement of uncontested facts, Vargas submitted a sworn statement along with her opposition to summary judgment. ECF No. 27–3. Ortho argues that the sworn statement contradicts the answers Vargas gave during her deposition,⁴ and that Vargas does not explain why she is changing her testimony. ECF No. 33 at 5–6. Thus, Ortho asks that the Court not consider this affidavit in deciding the motion for summary judgment. Id. at 6.

"Where a party has given clear answers to unambiguous questions on discovery, that party cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory." He r n an dez–L o ring v. Univ e rsid a d M e t r opol it ana , 233 F.3d 49, 54 (1st Cir. 2016) (internal quotation omitted); see also, Xiaoyan Tang v. Citizens Bank, N.A. , 821 F.3d 206, 217 n.11 (1st Cir. 2016). Here, the averements within the affidavit are either contradicted by plaintiff's deposition testimony or are irrelevant, and, as such, do not a create a valid factual dispute. Accordingly, the Court will not consider Vargas's sworn statement when it contradicts the clear record before the Court.

II. Factual Background

Unless otherwise noted, the following relevant facts are derived from defendants' statement of facts and plaintiffs' responses and objections thereto. See ECF Nos. 13, 27–1.

Ortho is a biopharmaceutical manufacturing plant located in Manatí. ECF No. 13 at ¶ 1. On December 24, 2001, Vargas began working as an Associate Biotech Specialist in the Purification Area. Id. at ¶ 3, 5. While employed at Ortho, Vargas was temporarily relocated to other departments on various occasions in order to provide and receive cross-trainings. Id. at ¶ 13. The purpose of the cross-trainings was to expose all manufacturing employees to the different stages of the manufacturing process. Id. at ¶ 14.

In 2012, Ortho implemented a new operational model, reduced its workforce and provided more cross training to its employees. Id. at ¶¶ 17, 22, 23, 29, 30. Vargas was retained as a Biotech Associate I in the first shift of the Cell Culture/Purification crew. Id. at ¶ 23. On February 20, 2012, plaintiff was temporarily assigned to the second shift so that an associate from the second-shift could receive cross-training during the first shift. Id. at ¶ 31. On June 12, 2012, Vargas returned to the first shift and performed the same functions she had performed prior to her temporary reassignment. Id. at ¶ 32.

A. Vargas's Disciplinary Record

Vargas had a history of interpersonal and communication problems with her coworkers. Id. at ¶ 113. On February 8, 2002, Vargas signed a document agreeing to improve her communication with her co-worker Ricardo Vilmenay, an Electronic Tech. Id. at ¶ 33. On February 26, 2003, Vargas signed a document in which she agreed to improve her interpersonal relationship with her co-worker María Silvestrini, Senior Biotech Specialist. Id. at ¶ 34.

During the "Voice of the Customer" interviews that took place between April and July 2012, Ortho interviewed thirty-four employees from the Manufacturing Department. At least eight of the employees expressed some sort of concern regarding Vargas's poor attitude and behavior towards her coworkers and supervisors. Id. at ¶ 36. In Vargas's 2012 mid-year performance evaluation, her then-supervisor, José Báez ("Báez"), commented that she had to give special attention to improving her communication and teamwork skills. Id. at ¶ 35.

1. October 2012 Suspension

On October 18, 2012, a gross deviation in the manufacturing process led to a multi-million dollar loss for Ortho.⁵ Id. at ¶ 38. Ortho suspended all the employees involved in the incident, including Vargas. Id. at ¶ 39, 41. Specifically, on October 30, 2012, Vargas received a Final Written Warning and Suspension from Salary and Employment. Id. at ¶ 42. Because of the incident, Ortho demoted Vargas's supervisor, Báez, from Supervisor to Senior Biotech Associate, and Báez no longer supervised her. Id. at ¶ 43.

On November, 2012, after Vargas returned from her suspension, Sara Hernández ("Hernández") became her supervisor. Id. at ¶ 44. Hernández had been Vargas's supervisor at different periods during Vargas's employment. Id. at ¶ 10. Hernández was Vargas's first supervisor when she began working at Ortho in 2001, and remained her supervisor until 2007. Id. at ¶ 11. Hernández also supervised Vargas from November 26, 2007, until January 2, 2008. Id. at ¶¶ 15–16, 44. 66–69.

After the suspended employees returned to work, Ortho had an industrial psychologist, Dr. Carlos Andújar Rojas, meet with the employees to help them cope with the one-month suspension and return to work. Id. at ¶ 46. During the meetings with the psychologist, several supervisors and employees expressed that Vargas was difficult and abrasive. They also stated that Vargas was dismissive of them and treated them as if they were incompetent. Id. at ¶ 47.

2. Vargas's May 8, 2014, Report

Vargas had an amicable relationship with Hernández up until May 8, 2014. Id. at ¶ 51. According to Vargas, Hernández's attitude towards her changed after May 8, 2014, when she sent Hernández an email alleging that Hernández and Elvin García—another Biotech Associate I who worked with Vargas—had deviated from the manufacturing process. Id. at ¶¶ 24–25, 48, 52. That same day, Hernández met with Vargas to address the concerns that she had raised in her email. Id. at ¶ 49. During the meeting, Vargas stated the tasks were not distributed evenly between García and her. Hernández told Vargas that she would address the situation. Id. at ¶ 50.

Vargas felt that Hernández was not addressing the alleged manufacturing deviations. Id. at ¶ 53. Thus, a couple of days after May 8, 2014, Vargas gave López de Victoria ("López"), Senior Manufacturing Manager, and Sandra Marrero ("Marrero"), Human Resources Manager, a document that delineated the alleged violations committed by Hernández and García. Id. at ¶ 53. López and Marrero met with Vargas to discuss her concerns regarding compliance with the manufacturing process. Id. at ¶ 54. Vargas does not know if Ortho investigated the concerns that she raised on May 2014. Id. at ¶ 56.

López investigated the alleged manufacturing deviations that Vargas brought to his attention and concluded that the alleged violations did not occur and that, in any event, they would not have been serious violations of Ortho's procedures. Id. at ¶ 57. Vargas continued receiving the same compensation after she reported the alleged deviations. Id. at ¶ 58. Hernández did not give Vargas additional tasks after she reported the alleged deviations. Id. at ¶ 59.

3. Hernández's October 30, 2014, Complaint

On October 30, 2014, Hernández complained to her supervisor, López, about Vargas's dismissive and disrespectful attitude towards her. Id. at ¶ 37.

4. The November 4, 2014, Incident

On November 4, 2014, the changing room was under repair and the employees had to put on their gowns in the manufacturing hallway. Id. at ¶ 63. On that day, both Vargas and Hernández—who still was Vargas's supervisor—complained to Human Resources about an incident that had occurred that morning. Id. at ¶ 60. The two employees had different versions about what had happened. Id.

Vargas sent María Ojeda ("Ojeda"), Human Resources Director at Ortho, and Marrero an email reporting the alleged incident with Hernández. Id. at ¶ 61. According to Vargas, she was putting on the sterile gown required to enter the manufacturing area when...