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Mercedes v. Holder

United States District Court, D. Massachusetts

July 1, 2014

ERIC HOLDER, Attorney General, United States Department of Justice, Defendant.


LEO T. SOROKIN, District Judge.

Plaintiff Raymond Mercedes, a Black Hispanic male from the Dominican Republic, is an employee of the Federal Bureau of Prisons ("BOP") assigned to the Federal Medical Center Devens ("FMC Devens"). Mercedes has sued the United States Attorney General, claiming he was discriminated against at work on account of his race and nationality, and that he was subject to retaliation after complaining about such discrimination, all in violation of Title VII of the Civil Rights Act of 1964.[1] Doc. No. 1.[2] The Attorney General has moved for judgment on the pleadings. Doc. Nos. 34, 35. Mercedes has opposed the motion, Doc. Nos. 36, 37, and the Court heard oral argument on June 24, 2014, Doc. No. 42.[3] For the reasons that follow, the Attorney General's motion is ALLOWED.


The legal principles guiding federal courts in resolving motions for judgment on the pleadings pursuant to Rule 12(c) and motions to dismiss under Rule 12(b)(6) are essentially the same. Curran v. Cousins , 509 F.3d 36, 43-44 (1st Cir. 2007); Lexington Luminance LLC v., Inc., No. 12-12216, 2014 WL 1092871, at *2 (D. Mass. Mar. 18, 2014). Both types of motions call for "an assessment of the merits of the case at an embryonic stage, " R.G. Fin. Corp. v. Vergara-Nunez , 446 F.3d 178, 182 (1st Cir. 2006), and require the Court to "view the facts contained in the pleadings in the light most favorable to the party opposing the motion - here, the plaintiff - and draw all reasonable inferences in the plaintiff's favor, " Curran , 509 F.3d at 43; accord Lexington Luminance, 2014 WL 1092871, at *2.

The Court may consider documents beyond the pleadings if their authenticity is not disputed, they are central to the plaintiff's claims, or they are referred to in the complaint. See Curran , 509 F.3d at 44 (quoting Watterson v. Page , 987 F.2d 1, 3 (1st Cir. 1993)). To survive either motion, the complaint "must contain factual allegations that raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.'" Perez-Acevedo v. Rivero-Cubano , 520 F.3d 26, 29 (1st Cir. 2008) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). This standard, however, requires the plaintiff to offer "more than labels and conclusions, " and more than "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. , 550 U.S. at 555. The complaint "must provide fair notice to the defendants and state a facially plausible legal claim." Ocasio-Hernandez v. Fortuño-Burset , 640 F.3d 1, 12 (1st Cir. 2011).

A discrimination claim under Title VII can be based on allegations of discrete discriminatory acts or on treatment which constitutes a hostile work environment. To establish a prima facie case of discrimination arising from discrete acts, a plaintiff must allege membership in a protected class, that he performed his job at an adequate level, and that he suffered an adverse employment action. See Conward v. Cambridge Sch. Comm. , 171 F.3d 12, 19 (1st Cir. 1999); Espinal v. Nat'l Grid NE Holdings 2, LLC , 794 F.Supp.2d 285, 292 (D. Mass. 2011). "An adverse employment action is one that affects employment or alters the conditions of the workplace, and typically involves discrete changes in the terms of employment, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Morales-Vallellanes v. Potter , 605 F.3d 27, 35 (1st Cir. 2010) (internal quotation marks, alterations, and citations omitted). It "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Marrero v. Goya of P.R., Inc. , 304 F.3d 7, 23 (1st Cir. 2002).

To state a hostile work environment claim, the plaintiff must allege objectively offensive discriminatory conduct so severe or pervasive that it unreasonably interfered with his working environment. Rosario v. Dep't of Army , 607 F.3d 241, 246 (1st Cir. 2010). Such "conduct must be extreme [enough] to amount to a change in the terms and conditions of employment." Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998). Title VII is not "a general civility code for the American workplace." Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 80 (1998). It "does not prohibit all verbal or physical harassment in the workplace; it is directed only at discriminat[ion]... because of... [race, color, ... or national origin].'" Id . (quoting 42 U.S.C. § 2000e-2(a)(1)).

A plaintiff claiming retaliation in violation of Title VII must allege that he "engaged in protected conduct, " "was subject to an adverse employment action, " and that "a causal connection existed" between his conduct and the action. Colon v. Tracey , 717 F.3d 43, 49 (1st Cir. 2013). For these purposes, a materially adverse employment action is something that likely would deter a reasonable worker from complaining of discrimination. Id.


In keeping with the principles set forth above, the following facts are taken from the complaint and the portions of the administrative record referenced therein and submitted by the parties.[4]

Mercedes has worked for the BOP for nearly twenty years. Doc. No. 1 at ¶ 41. He is a Senior Officer Specialist and has worked at FMC Devens for nearly nine years. Id . at ¶ 42; Doc. No. 35-1 at 1. During that time, Mercedes has filed multiple discrimination complaints with the Equal Employment Opportunity Commission ("EEOC"), including one related to the claims in this lawsuit. Doc. No. 1 at ¶¶ 8, 43-44.

In this action, Mercedes alleges discrimination based on race and national origin, as well as retaliation for his previous EEOC complaints. See id. at ¶¶ 25, 39, 50, 51. His claims arise from three categories of alleged events: 1) temporary shift reassignments; 2) denial of opportunities to review performance evaluations; and 3) various forms of retaliation for his previous claims of discrimination. Id .; see Doc. No. 37 at 2-4.

A. Reassignments

Although he alleges he was reassigned "three times within five months, " Doc. No. 1 at ¶ 11, Mercedes describes the circumstances of only one reassignment - from perimeter patrol to the control center for one shift on April 24, 2010, id. at ¶ 12; Doc. No. 35-1 at 3. According to Mercedes, he was reassigned without advance notice, "had not been trained to work" in the control center, and lacked a necessary security password to enter information in the control center's computer system. Doc. No. 1 at ¶¶ 12-13. He claims the reassignment decision was made on April 18, 2010, providing his superiors with sufficient time to notify him of the decision and train him for the control center post, neither of which they did. Id . at ¶ 19.

Mercedes claims he raised these concerns to a supervisor at the time of the reassignment, and the supervisor responded by threatening "to make [Mercedes's] life miserable." Id . at ¶¶ 14-15. Mercedes avers that, in the reassigned post, he would have been held accountable for all errors in security or accounting for inmates during his shift; however, he does not allege that any such errors occurred or that he was "held responsible" in any way. Id . at ¶ 17. The lack of notice or training for the reassignment, says Mercedes, "gives a strong inference" of discrimination "because of [his] race, color, and national origin." Id . at ¶ 23. In addition, Mercedes notes an instance in which a white corrections officer at FMC Devens was "accommodated" by being counseled regarding how he should use "street time" to retrieve a loaded weapon he had left at a hospital. Id . at ¶ 24.[5]

Various individuals who gave statements during the EEOC investigation of Mercedes's complaint stated that supervisors at FMC Devens are permitted to reassign individual corrections officers as needed, although some noted "courtesy calls" about reassignments are "normal." See, e.g., Doc. No. 35-1 at 6 (summarizing statements of Union President and Human Resources Manager). Several individuals also stated that a person with Mercedes's rank should be able to work any post at the prison, see, e.g., id. (summarizing statement of Union President), and that a second officer assigned to the control center with Mercedes on the date of his reassignment had the codes necessary to use the relevant computer programs, see, e.g., id. at 4 (summarizing statement of the second officer).

B. Evaluations

Mercedes claims he was denied "the opportunity to review his quarterly evaluations and annual evaluation in a timely manner, " thus preventing him from questioning their contents or deciding whether or not he wished to sign them. Doc. No. 1 at ¶ 26. Moreover, he alleges, one supervisor noted on several evaluations that Mercedes had refused to sign, despite the fact that Mercedes "had not been asked to sign or refuse to sign them." Id . at ¶¶ 27-29. These evaluations "show[ed] a decrease in [Mercedes's] ratings" and failed to reflect positive comments about his job performance. Id . at ¶¶ 31-32. Mercedes suggests these "falsified" evaluations in his personnel file are "viewed for awards, promotions, transfers to another institution, and/or other employment opportunities, " id. at ¶ 37, but he does not identify any such opportunities he claims to have lost as a result of the evaluations.

After Mercedes raised the issue regarding his evaluations with his superiors, the supervisor who had completed the evaluations and wrongly noted Mercedes's refusal to sign them was reprimanded for not following relevant policies about performance evaluations. Doc. No. 35-1 at 11 (summarizing statement of Captain who placed "counseling letter" in supervisor's file). According to Mercedes, this reprimand "minimiz[ed] the discriminatory act" and "condoned falsifying Federal Documents." Doc. No. 1 at ¶¶ 38-39. Mercedes claims all of this occurred "because [he] is a Black Hispanic from the Dominican Republic." Id . at ¶ 39. Other individuals interviewed in connection with Mercedes's EEOC complaint, however, stated the same supervisor had used the same improper methods for all performance evaluations over a period of time, including those of other employees as well.[6] Doc. No. 35-1 at 8, 10 (summarizing statements of Mercedes's direct supervisor and the supervisor who wrote the relevant evaluations).

C. Other Retaliatory Actions

Mercedes filed multiple EEOC complaints during his time at FMC Devens, including some that predated the claims in this action.[7] Doc. No. 1 at ¶¶ 40, 43-44. He claims he "has been black-listed' by the administration" for filing such complaints, and that "his co-workers are afraid to assert their legal rights" as a result. Id . at ¶ 46. To support his claim of retaliation, Mercedes identifies the following actions: 1) a prison administrator's statement during the EEOC investigation characterizing Mercedes as "paranoid, " id. at ¶ 47;[8] 2) the alleged failure of union representatives to "assert... employee[s'] rights as they should, " including documenting a meeting sought by Mercedes regarding his reassignment on April 24, 2010 with a memorandum concluding that no violation had occurred, id. at ¶¶ 48-49;[9] 3) denial of a promotion in 2009, id. at ¶ 50;[10] 4) being "supposedly randomly chosen for a drug test" in 2009, id.; 5) being "told [in 2009] that he was overdue for his 5 year background check though his last one was [more than ten years earlier], " id.; 6) being investigated in 2009 for failing to follow instructions, a claim that was deemed "unsubstantiated, " id.;[11] 7) receiving lower ratings on an evaluation in 2009 based on his refusal to act as a Spanish-English translator, a task which "is not part of his duties, " id.; and 8) having his role in preventing bodily harm to another staff member overlooked in a 2009 email about the incident, id. All of this, he summarily claims, constituted "reprisal" for his EEOC activity. Id.


The Attorney General seeks judgment on the pleadings as to each of the three claims set forth in Mercedes's complaint. He argues Mercedes has alleged no discriminatory acts, no events sufficient to constitute a hostile work environment, and no adverse employment actions that arose from any protected activity under Title VII. See generally Doc. No. 35. Mercedes contends that his reassignment to the control center and the failure to allow him to review his evaluations were discriminatory acts, that the same two actions created a hostile work environment, and that his remaining allegations demonstrate various forms of retaliation. See generally Doc. No. 37. Neither the pleadings nor the law support Mercedes's view.

A. Discrimination

As a matter of law, neither of the events Mercedes has identified as the basis for his discrimination claim constitute adverse employment actions for Title VII purposes.

Mercedes has not alleged sufficient facts to conclude that his temporary reassignment from perimeter patrol to the control center is reasonably viewed as a "materially adverse change in the terms and conditions of employment, " Morales-Vallellanes , 605 F.3d at 35, or that it amounted to something "more disruptive than a mere inconvenience or an alteration of job responsibilities, " Marrero , 304 F.3d at 23. The reassignment was limited to a single shift on one day. At the time, Mercedes was a federal corrections officer with more than a decade of experience, including nearly five years at FMC Devens. He apparently had worked in a control center at another institution, and working that post at FMC Devens was within his job responsibilities, given his years of experience and his rank. See Doc. No. 35-1 at 7, 12 (summarizing statements of Mercedes's direct supervisor and the Associate Warden); Doc. No. 37 at 5-6 (admitting Mercedes had previous control center experience in New York, but suggesting "there are major differences" between the two institutions).[12] Besides lacking a necessary computer code - which a coworker assigned to the control center with him for much of the same shift did possess[13] - Mercedes has not identified any aspect of the assignment for which he was unprepared. Moreover, he has not alleged that he caused or was blamed for any errors during the relevant shift. Under these circumstances, his reassignment does not constitute an adverse employment action. Cf. DeNovellis v. Shalala , 124 F.3d 298, 306 (1st Cir. 1997) (finding five-month reassignment was an adverse employment action where plaintiff was deprived of meaningful duties and expected to perform work "for which he had no background").

The alleged denial of opportunities to review and sign performance evaluations cannot save Mercedes's discrimination claim. The evaluations themselves are not equivalent to actions like "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998). Although he notes that employment decisions are made on the basis of the contents of officers' personnel files, Mercedes does not claim any adverse decisions were made regarding his own employment as a result of the evaluations about which he complains.

Taking all of the facts alleged by Mercedes in his complaint as true, neither of the events he has identified constitute "adverse employment actions." As such, Mercedes has failed to plead any discrete acts that justify permitting his discrimination claim to proceed any further.[14]

B. Hostile Work Environment

Similarly, Mercedes's allegations do not approach the sort of "severe or pervasive" and objectively offensive conduct necessary to create a hostile work environment. Mercedes rests his hostile work environment claim on the same two actions discussed in the preceding section - his one-time reassignment to the control center, and the denial of an opportunity to review certain performance evaluations. Doc. No. 37 at 8-9. As the Attorney General argues in his brief, there are several flaws in Mercedes's pleading of this claim.

Perhaps most notably, Mercedes has alleged no facts that would support an inference, even at this early stage in the proceedings, that either action resulted from his race or national origin. Because "Title VII does not prohibit all verbal or physical harassment in the workplace, " Mercedes must allege sufficient facts to demonstrate that the hostility of which he complains was linked to his race or national origin. Oncale , 523 U.S. at 80. His conclusory claims that these characteristics motivated his temporary reassignment to a post within his responsibilities as a Senior Officer Specialist and the denial of a chance to review his evaluations cannot support a viable hostile work environment claim. See Bell Atl. Corp. 550 U.S. at 555 (requiring more than labels and conclusions). The mere failure of his superiors to notify him in advance of the reassignment - even if such "courtesy calls" are often provided - simply is not sufficient to justify an inference that Mercedes's race or national origin was central to the complained-of conduct.

Furthermore, neither event identified by Mercedes is "objectively offensive, " nor do the events in combination amount to a "severe or pervasive" work environment. Mercedes has not alleged the sort of hostile or abusive conduct that a reasonable person working at FMC Devens would find offensive - indeed, it is difficult to imagine any reasonable employee viewing the one-day reassignment or the relevant supervisor's erroneous evaluation practices alleged by Mercedes as actionable harassment based on race or national origin. See Douglas v. J.C. Penney Co. , 474 F.3d 10, 15 (1st Cir. 2007) (finding no prima facie hostile work environment claim where performance evaluation irregularities were not objectively offensive). Similarly, the conduct Mercedes alleges amounts to isolated events that were not severe, pervasive, or "so egregious as to evince a hostile work environment." Ponte v. Steelcase Inc. , 741 F.3d 310, 320 (1st Cir. 2014); cf. Oncale , 523 U.S. at 77 (finding overtly "sex-related, humiliating actions" against the plaintiff, including threats of rape, to be sufficiently egregious).

Where, as here, "a workplace objectively falls short of th[e] abusive' high-water-mark, it cannot sustain a hostile-work-environment claim." Bhatti v. Trs. of Bos. Univ. , 659 F.3d 64, 74 (1st Cir. 2011); see Faragher , 524 U.S. at 788 (noting "conduct must be extreme to amount to a change in the terms and conditions of employment").[15]

C. Retaliation

Finally, Mercedes has not alleged any materially adverse action taken against him in response to his previous EEOC complaints, as he must to sustain a Title VII retaliation claim. Although he presents a litany of events "he feels were reprisal for EEO activity and not mere coincidences, " Doc. No. 1 at ¶ 50, the complaint includes no facts to support this conclusory statement of Mercedes's personal belief. He does not allege which individuals were responsible for the conduct he describes or whether they knew of or were involved in his prior complaints. He describes very little about the chronology of the previous complaints and the alleged conduct. See Doc. No. 1 at ¶¶ 43-44, 50 (stating his "first" complaint was in early 2007, referencing an unspecified number of subsequent complaints at unspecified times, and listing numerous allegedly retaliatory events "in 2009"). Indeed, he presents no facts to support a causal connection between his previous complaints (which he does not describe at all) and the conduct (which he does not describe with any specificity). Cf. Mesnick v. Gen. Elec. Co. , 950 F.2d 816, 828 (1st Cir. 1991) (finding timeline suggested no causal connection between EEOC complaints and plaintiff's termination nine months later where no other evidence of retaliatory animus or acts in the intervening time was presented).

Moreover, much of the allegedly retaliatory conduct is not, as a matter of law, "materially adverse" because it would not "dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 57 (2006). For example, Mercedes has not alleged facts which suggest his selection for random drug testing or a background check for which he was admittedly overdue were anything more than "minor annoyances that often take place at work and that all employees experience." Id . at 68. The same is true of his allegations regarding the omission of his name from an email about the prevention of harm to a fellow staff member, his receipt of lower performance ratings based on his refusal to act as a translator between Spanish-speaking inmates and Englishspeaking staff, a union officer's determination in a memorandum that Mercedes's reassignment had not violated prison policy, an administrator's description of Mercedes as "paranoid, "[16] and the investigation of Mercedes for an alleged violation that was deemed unsubstantiated.

Although the denial of a promotion could constitute a materially adverse action in the mind of a reasonable person, Mercedes has offered no facts to suggest a connection between that denial and any previous EEOC complaint. In fact, his briefing suggests he ultimately received the promotion after filing an EEOC complaint. See Doc. No. 37 at 11 (noting Mercedes filed a complaint after his third non-promotion in June 2009, filed a related appeal in January 2010, and had received the promotion sometime before the April 2010 reassignment). Under these circumstances, he has not stated a prima facie case of retaliation.


Because Mercedes has offered little more than "labels and conclusions" in support of his discrimination and retaliation claims, Bell Atl. Corp. , 550 U.S. at 555, the Attorney General's motion for judgment on the pleadings is ALLOWED. A separate judgment in favor of the Attorney General will follow.


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