Opinion
Civil No. 04-2290 (GAG).
January 31, 2007
OPINION ORDER
Presently before the court is Plaintiff's Motion for Reconsideration (Docket No. 72) pertaining to the court's December 22, 2006 Opinion and Order (Docket No. 70),Fretts-Mulero v. Municipality of Carolina, No. 04-2290, 2006 WL 3791354 (D.P.R. Dec. 22, 2006), granting Defendants' summary judgment motions (Docket Nos. 18 24). Plaintiff now requests that the court reconsider its grant of summary judgment on her gender discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e- 2000e-17. In her motion, Plaintiff argues that the court incorrectly concluded that she failed to establish a prima facie case of gender discrimination. She urges the court to vacate its grant of summary judgment because the evidence in the record satisfies her prima facie case.
After concluding an initial review of the motion and all earlier summary judgment filings, the court issued an order to show cause (Docket No. 73) requiring Defendants to respond to Plaintiff's motion and to show cause why Plaintiff's evidence regarding a comment allegedly made by Mayor José Aponte does not raise a genuine issue of material fact regarding Defendants' motivation for terminating Plaintiff. Both the Municipality of Carolina (Docket No. 76) and the Mayor in his personal capacity (Docket No. 75) complied with the court's order.
In his Motion in Compliance, the Mayor correctly avers that the order to show cause was not addressed to him in his personal capacity. No claims remain against the Mayor in his personal capacity. On June 30, 2006, the court entered judgment (Docket No. 63) in favor of the Mayor in his personal capacity on Plaintiff's Title VII claim, the only claim at issue in Plaintiff's Motion for Reconsideration. Furthermore, the court's December 22, 2006 order (Docket No. 70), noted that the complaint does address the Mayor in his personal capacity and dismissed with prejudice all remaining claims against the Mayor in his personal capacity. Plaintiff's Motion for Reconsideration does not challenge this ruling. Therefore, a grant of Plaintiff's Motion for Reconsideration would have no effect on any claim against the Mayor in his personal capacity.
The Mayor erroneously contends that Plaintiff did not timely file her Motion for Reconsideration. The Federal Rules of Civil Procedure provide for ten days to file a motion for reconsideration. See Fed.R.Civ.P. 59(b). In this case, the court issued its Opinion and Order on December 22, 2006. The ten days elapsed on January 11, 2007, the date Plaintiff filed her motion. The court highlights that the following days did not count toward the ten day time limit because they were either weekend days or holidays: December 23 (Saturday), December 24 (Sunday), December 25 (Christmas), January 1 (New Years Day), January 2 (National Day of Mourning for President Ford), January 5 (Administrative Holiday), January 6 (Saturday), and January 7 (Sunday). See Fed.R.Civ.P. 6(a).
The court should rarely grant a motion for reconsideration. Such relief is "an extraordinary remedy which should be used sparingly." Palmer v. Champion, 465 F.3d 24, 30 (1st Cir. 2006). The court grants a motion for reconsideration only to correct a manifest error of law or if the movant demonstrates the availability of newly discovered evidence. See Marks 3-Zet-Ernst Marks GMBH Co. KG v. Presstek, Inc., 455 F.3d 7, 15 (1st Cir. 2006). Plaintiff in this case essentially argues that the court committed a manifest error of law when it granted Defendants summary judgment motion despite the presence of evidence in the record to support Plaintiff's prima facie case.
Plaintiff's Motion for Reconsideration discusses only the first prong — the prima facie case — of the legal framework applicable to a gender-based disparate treatment case. The now familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) governs Plaintiff's gender discrimination claim. Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of gender discrimination. She must demonstrate that (1) she is a member of a protected class; (2) she performed her job satisfactorily; (3) she suffered an adverse employment action; and (4) her employer sought a replacement with roughly equivalent job qualifications.Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir. 1994). If the plaintiff sets forth a prima facie case, an inference of intentional discrimination is raised. The burden then shifts to the defendant who must articulate a legitimate, nondiscriminatory reason for the employment decision. The burden of persuasion remains at all times with the plaintiff; the defendant's burden at this stage is merely a burden of production. If the defendant provides a legitimate, non-discriminatory reason, then the inference raise by the prima facie case disappears. The burden of persuasion shifts back to the plaintiff who must adduce sufficient evidence to support a finding that defendant's preferred reason is false and that gender was a motivating factor in the employment decision.Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 674 (1st Cir. 1996).
Plaintiff asserts only one argument in her Motion for Reconsideration. She urges the court to reconsider its grant of summary judgment because she satisfied her prima facie burden under McDonnell Douglas. Plaintiff ignores the language in the court's summary judgment opinion that states that summary judgment is appropriate regardless the merits of Plaintiff's prima facie case. The court's decision did not necessarily rely on consideration of Plaintiff's prima facie case. Rather, the court's decision rested upon consideration of the second and third prongs of the McDonnell Douglas framework. Specifically, the court concluded that Defendants satisfied their burden to articulate a legitimate and nondiscriminatory reason which Plaintiff failed to rebut. Consequently, reconsideration of whether Plaintiff satisfied her prima facie burden will have no effect on the court's ruling. Denial of the Motion for Reconsideration on that ground is therefore required.
Nevertheless, for purposes of procedural fairness, the court reconsidered the entirety of Plaintiff's opposition to Defendants' summary judgment motion on the Title VII claim. After reconsidering the merits of Plaintiff's gender discrimination claim, the court concludes that her claim was properly dismissed.
Assuming, without deciding, that Plaintiff satisfied her prima facie burden, Defendants produced a legitimate nondiscriminatory reason for refusing to renew Plaintiff's transitory contract. Defendants submitted evidence showing that they, in making the decision not to renew Plaintiff's contract, relied upon the Municipality's administrative record of an investigation of adultery and negligence charges against Plaintiff. The investigation revealed that Plaintiff engaged in serious violations of department regulations. Specifically, she engaged in adultery with a co-police officer and negligently performed her duties — more accurately, negligently handled her firearm which had been fired and was found in the hand of the deceased victim of a violent and deadly shootout. See Docket No. 19, ¶¶ 13-24. As noted in the original Opinion and Order, Plaintiff failed to properly oppose Defendants' statement of facts. As a result, the court deemed admitted, and therefore uncontested, Defendants' statement of facts, including those paragraph pertaining to the Municipality's investigation, conclusions, resulting disciplinary measures, and reasons for its employment decisions. See Docket No. 70, p. 2.
Once Defendants satisfied their burden of production, the burden of persuasion shifted back to Plaintiff to demonstrate that Defendants' proffered reason is a pretext and that gender discrimination is the real reason. See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823-24 (1st Cir. 1991). At the pretext stage, Plaintiff "must do more than cast doubt on the rationale proferred by the employer, . . . the evidence must be of such strength and quality as to permit a reasonable finding that the termination was obviously or manifestly unsupported."Rivera-Aponte v. Rest. Metropol #3, Inc., 338 F.3d 9, 12 (1st Cir. 2003) (quoting Ruiz v. Posadas de San Juan Assocs., 124 F.2d 243, 248 (1st Cir. 1997)) (omission in original). In this case, Plaintiff made no showing of falsity and failed to present sufficient evidence of discriminatory animus.
To satisfy her burden of persuasion at this stage, Plaintiff submits a declaration in which she states that Attorney Neftalí Hernández told her that the Mayor made a derogatory comment about Plaintiff. Plaintiff suggests that this comment evidences Defendants' discriminatory animus. Mesnick, 950 F.2d at 824 (noting evidence of discriminatory comments by decision makers may circumstantially evidence discrimination). Even assuming the Mayor made the comment and Hernández relayed the statement to Plaintiff, it is insufficient to create a genuine issue of material fact regarding Defendants' intent under a direct or circumstantial evidence approach. One isolated and ambiguous comment alone is insufficient to carry Plaintiff's high burden of establishing that gender-related animus motivated Defendants' adverse employment decision. This is particularly true in light of the substantial and uncontested evidence in the record evidencing Defendants' legitimate, nondiscriminatory reason. Plaintiff's evidence of the Mayor's alleged comment is not sufficient to permit a reasonable jury to conclude that Plaintiff's termination was obviously or manifestly unsupported.
Plaintiff's Sworn Statement states: "[Hernández] went on to say that he made a recommendation to the Mayor of 90 days suspension from employment and salary and the Mayor refused said recommendation. He told me that the mayor had said that I was responsible for everything that happened. He stated that I, as a pregnant woman, had to be home at that time of the night and that I was responsible since this was like the case of Adan [sic] and Eve." Docket No. 31, Exh., ¶ 9. Cf. Docket No. 34, Exh. 1, ¶¶ 7-9 (Statement Under Penalty of Perjury of Neftalí Hernández) (acknowledging he recommended 90 day suspension and denying remainder of Plaintiff's statement). The court assumes that the statement would be admissible as a party admission. See Fed.R.Evid. 801(d)(2)(D). Moreover, the court notes that Hernández explained the Mayor's reasoning for rejecting the suspension recommendation-due to the seriousness of the incident which prompted the investigation and disciplinary action. See Docket No. 34, Exh. 1, ¶ 8.
Plaintiff alleges that the Mayor's comment qualifies as direct evidence of discriminatory animus. See Wennik v. PolyGram Group Distrib., 304 F.3d 123, 132-33 (1st Cir. 2002) (noting direct evidence consists of unambiguous statements that directly reflect the alleged animus and bear directly on the challenged employment decision). Given the ambiguous nature of the comment, the court rejects Plaintiff's direct evidence argument.
Plaintiff also argues that evidence of disparate treatment of similarly situated male employees supports the conclusion that discriminatory animus motivated Defendants' decision. See Mesnick, 950 F.2d at 823 (noting evidence of disparate treatment may be probative of discriminatory animus). In support of her argument, she points only to her own deposition testimony regarding comments made by co-workers about the disciplinary penalties imposed on two male officers who committed adultery. Plaintiff did not depose any of the co-workers, does not offer declarations from them, and did not announce them as witnesses. Moreover, she offers no evidence regarding whether other officers charged with adultery and allegedly retained were, in fact, similarly situated. A comparison is only valid if Plaintiff can demonstrate that she and other employees were similar in terms of conduct, performance, qualifications, and any other relevant characteristics or circumstances. See Rivera-Aponte, 338 F.3d at 12; Rodríguez-Cuervos v. Wal-mart Stores, Inc., 181 F.3d 15, 21 (1st Cir. 1999); Rios v. Aramark Corp, 139 F. Supp. 2d 210, 215 (D.P.R 2001). Plaintiff offers no evidence pertaining to any of these issues. Thus, her evidence fails to establish differential treatment.
Plaintiff makes another attempt to satisfy her burden of persuasion. She claims that she did not know that her paramour, Frederick Santiago Cardenales ("Santiago"), was married and, therefore, she did not engage in adultery. Even if Plaintiff was unaware of Santiago's marital status, such a fact is irrelevant to the court's consideration of her Title VII claim. The essential fact in this case is Defendants' motivation for its decision relating to Plaintiff's employment. Plaintiff does not contest that Defendants based their decision, in part, on her December 12, 2002 sworn statement in which she stated that she knew of Santiago's marital status. Her denial, made over two years after her termination, of such knowledge has no bearing on Defendants' articulated reason for their employment decision; it is not probative of pretext or discriminatory animus.
All other arguments asserted by Plaintiff rely upon mere conclusory allegations and/or facts not supported with proper record citations. On summary judgment, the court considers only facts supported by proper citation to the record. See Local Rule 56(e). Moreover, a non-movant, Plaintiff in this case, may not rely upon "conclusory allegations, improbable inferences, and unsupported speculation" to avoid summary judgment.Fontanez-Nunez v. Janssen Ortho LLC., 447 F.3d 50, 54-55 (1st Cir. 2006). Plaintiff, therefore, cannot rely on such arguments to satisfy her ultimate burden of persuasion to demonstrate that discriminatory animus motivated Defendants' decision to terminate her employment.
Accordingly, the Motion for Reconsideration (Docket No. 72) is DENIED.