Rivera-Colon v. Mills ( 2011 )

United States Court of Appeals
For the First Circuit
No. 09-2417
RUTH RIVERA-COLÓN,
Plaintiff, Appellant,
v.
KAREN G. MILLS,
ADMINISTRATOR OF THE SMALL BUSINESS ADMINISTRATION,
Defendant, Appellee,
UNITED STATES ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Torruella, Leval,* and Lipez,
Circuit Judges.
Daliah Lugo Auffant, with whom Pérez Vargas & Lugo Auffant Law
Offices, was on brief for appellant.
Beverley E. Hazlewood, Trial Attorney, Office of General
Counsel, U.S. Small Business Administration, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, Chief, Appellate Division, were
on brief for appellee.
*
Of the Second Circuit, sitting by designation.
February 15,2011
LEVAL, Circuit Judge. Plaintiff Ruth Rivera-Colón (“Rivera”)
appeals from the judgment of the United States District Court for
the District of Puerto Rico, dismissing her claims against her
employer, the United States Small Business Administration (“SBA”).
Rivera alleged that the SBA violated Title VII, 42 U.S.C. §§ 2000e-
2000e-17 by retaliating against her for her complaints about gender
discrimination and sexual harassment in the agency. The district
court granted summary judgment to the defendant. We affirm.
BACKGROUND
I. Rivera’s Suspension
We view the facts in the light most favorable to the party
opposing summary judgment. See, e.g., Rosario v. Dep’t of Army, 607
F.3d 241, 242 (1st Cir. 2010). Rivera began working in the SBA’s
Disaster Program in Puerto Rico in 1989. By 2002, Rivera became
engaged in a series of disputes with Ivan Irizarry, District
Director of her region, and Efrain Pardo, Deputy District Director.
On June 21, 2002, Rivera had a disagreement with Pardo over whether
she had properly requested time off from work. On September 3,
2002, Pardo reprimanded her for contacting SBA personnel in
Washington regarding concerns she had about a training course
without first bringing the matter to Pardo’s attention. On
September 17, 2002, Rivera filed an internal complaint against
Pardo alleging a variety of grievances.
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In November 2002, Rivera submitted an anonymous administrative
complaint against Pardo and Irizarry, alleging that they practiced
sexual harassment and gender discrimination. Her anonymous
complaint charged that these senior managers were demanding sexual
favors from female employees and favoring those who were compliant.
An ad hoc committee determined that the complaint lacked merit, and
Rivera then withdrew it.
On February 20, 2003, Pardo witnessed Rivera questioning the
qualifications of presenters at a training session on telecommuting
in a hostile and, in his assessment, unprofessional manner. An SBA
attorney sent Pardo a memo expressing concern over Rivera’s conduct
at the session. In addition, union representatives also reported
employee complaints about Rivera’s attempts to dissuade employees
from participating in the telecommuting program.
On March 25, 2003, Pardo proposed that Rivera receive a two-
day suspension as punishment for her unprofessional conduct at the
training session. On April 3, 2003, Rivera submitted a written
response. She offered no evidence that might refute the charges,
but stated that she disagreed with the suspension and suspected
that it was discriminatory. On April 24, 2003, Irizarry imposed
the suspension.
Rivera testified that on May 20, 2003, she was told by a co-
worker that it was widely known throughout the office that it was
she who had anonymously accused Pardo and Irizzary of sexual
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harassment and that the coworker believed her suspension was
discriminatory. In support of summary judgment, the SBA submitted
evidence that, prior to May 20, 2003 (which was after the
imposition of the suspension), the supervisors who imposed the
suspension were not aware that Rivera submitted a complaint against
them. Accordingly, the SBA asserted that her anonymous complaint
cannot have been the cause of her suspension. Rivera acknowledged
that she did “not know the exact date Pardo and Irizarry were made
aware of her previous informal sexual harassment complaint, but has
reason to believe they were aware of it prior to her suspension,
since there were copies of the complaint circulating around the
office.” Rivera acknowledged that she did not “know for sure” that
Irizarry and Pardo had learned about her complaint prior to May 20,
2003.
II. Rivera’s Reassignment and Termination
On September 9, 2003, the SBA entered into a memorandum of
understanding with the American Federation of Government Employees
(“AFGE”) to transfer SBA employees nationwide who spent more than
25 percent of their time on “liquidation functions” to a facility
in Herndon, VA. Rivera had previously reported in a survey that
she spent 35 percent of her time on liquidation, which put her
above the 25 percent threshold for transfer to Herndon. On
September 10, 2003, the SBA sent a letter to 170 employees
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including Rivera offering “separation incentives” if they decided
against relocating to Herndon.
On December 1, 2003, Monika Harrison, the SBA’s Chief Human
Capital Officer, sent Rivera a notice requesting that she either
accept or decline the reassignment to Herndon within 15 days.
Rivera did not accept the reassignment within the time specified,
whereupon the SBA sent her another letter establishing a new
response deadline of January 5, 2004. Rivera was instructed to
respond to John Whitmore, a counselor to the SBA Administrator. On
the January 5, 2004 deadline, Rivera wrote to Whitmore requesting
an exemption from the transfer based on health and personal
concerns. Whitmore replied on the following day that he could not
grant this request, and that Rivera would be terminated on January
24, 2004 due to her failure to accept the transfer.
III. Rivera’s Complaint
Rivera brought this action against the SBA in May 2006. The
suit alleged that the SBA had discriminated on the basis of gender
in suspending her in May 2003 and in terminating her in January
2004. The suit also claimed that her suspension, reassignment, and
termination were in retaliation for her anonymous complaint of
sexual harassment. She demanded reinstatement to her position,
compensatory damages, punitive damages, and attorney’s fees and
costs. The district court granted summary judgment dismissing all
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her claims. Rivera appeals only from the dismissal of her
retaliation claims.
DISCUSSION
I. Standard of Review
We review the district court’s grant of summary judgment de
novo. Barton v. Clancy, No. 08-2479, 2010 WL 117261, at *6 (1st
Cir. Jan. 14, 2011). Rivera’s retaliation claims arise under Title
VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-3 (2006).
To justify summary judgment, the moving party must show entitlement
to judgment as a matter of law. Fed. R. Civ. P. 56a(c)(2) (“The
judgment sought should be rendered if . . . there is no genuine
issue as to any material fact and the movant is entitled to
judgment as a matter of law.”).1 If the moving party initially
meets this burden, the opposing party can then defeat the motion by
showing that there is a genuine issue of material fact. Id. In
evaluating whether there is a genuine issue of material fact, the
court examines the record - pleadings, affidavits, depositions,
admissions, and answers to interrogatories - viewing the evidence
in the light most favorable to the party opposing summary judgment.
See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
1
Citations to Rule 56 refer to the version that was in
effect at the time of the judgment and not to the revision of
December 1, 2010.
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Unsupported allegations and speculation do not demonstrate either
entitlement to summary judgment or the existence of a genuine issue
of material fact sufficient to defeat summary judgment. See
Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218
F.3d 1, 5 (1st Cir. 2000); see also Fed. R. Civ. P. 56(e)(1) (“A
supporting or opposing affidavit must be made on personal
knowledge, set out facts that would be admissible in evidence, and
show that the affiant is competent to testify on the matters
stated.”).
II. Retaliation Claims
A. Suspension as Retaliation
Under Title VII’s anti-retaliation provisions, a plaintiff
must plead a prima facie case consisting of three elements: that
the plaintiff engaged in an activity that is protected by the
statute; that the plaintiff suffered an adverse employment action;
and a causal link between the protected activity and the adverse
employment action. See 42 U.S.C. § 2000e-3; Gu v. Boston Police
Dep’t, 312 F.3d 6, 14 (1st Cir. 2002).
The defendant can support a motion for summary judgment by
showing that the adverse employment action was taken for a non-
retaliatory reason. See Collazo v. Bristol-Myers Squibb Mfg.,
Inc., 617 F.3d 39, 46 (1st Cir. 2010). In such case, the plaintiff
can defeat summary judgment by showing evidence sufficient to raise
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a material issue of fact as to whether retaliation was in fact a
cause of the adverse action.
The defendant made a showing that Rivera’s suspension cannot
have been motivated by retaliation for Rivera’s anonymous complaint
because she was suspended before the supervisors who imposed the
suspension learned she was the source of the anonymous complaint.
The district court determined that Rivera failed to raise a
material issue of fact rebutting the defendant’s showing because
she offered nothing to contradict the defendant’s evidence that
Pardo and Irizarry imposed the suspension before learning of the
complaint. By Rivera’s own admission, she was uncertain when Pardo
and Irizarry learned that she was the source of the complaint and
had no evidence that they learned before May 20, 2003. Given
Rivera’s failure to dispute effectively the SBA’s evidence that the
supervisors were unaware of her complaint when they imposed the
suspension, the district court correctly determined that Rivera
failed to raise a genuine issue of material fact. The district
court’s grant of summary judgment as to the suspension was thus
appropriate.
B. Reassignment and Termination as Retaliation
Rivera further claims that her reassignment to Herndon and her
termination when she refused the reassignment were in retaliation
for both her anonymous complaint and a formal charge she filed with
the EEOC in June 2003. The SBA, however, showed in support of its
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motion for summary judgment that the reassignment and termination
were done under a generally applicable policy that covered large
numbers of employees. Rivera failed to submit evidence that could
raise a question of material fact as to the cause of her
reassignment and termination. We conclude that the district court
properly granted summary judgment.
We have considered Rivera’s other claims of error and find no
merit in them.
CONCLUSION
The district court’s decision is affirmed.
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