Abril-Rivera v. Johnson , 795 F.3d 245 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1316
FRANCISCO ABRIL-RIVERA, ET AL.,
Plaintiffs, Appellants,
and
MADELINE AGUAYO, ET AL.,
Plaintiffs,
v.
JEH JOHNSON, Secretary of the Department of Homeland Security;
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; FEDERAL EMERGENCY
MANAGEMENT AGENCY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lynch, and Thompson,
Circuit Judges.
Adriana G. Sánchez-Parés, with whom Álvaro R. Calderón, Jr.,
Francisco J. Ortiz-García, and Álvaro R. Calderón, Jr. L.L.P. Law
Office were on brief, for appellants.
Adam C. Jed, Appellate Staff Attorney, with whom Joyce R.
Branda, Acting Assistant Attorney General, Rosa E. Rodriguez-
Velez, United States Attorney, and Marleigh D. Dover, Appellate
Staff Attorney, were on brief, for appellees.
July 30, 2015
LYNCH, Circuit Judge. The Federal Emergency Management
Agency (FEMA) is an agency within the Department of Homeland
Security (DHS) tasked with assisting "State and local governments
in carrying out their responsibilities to alleviate the suffering
and damage that result from major disasters and emergencies by,"
among other things, "[p]roviding Federal assistance programs for
public and private losses and needs sustained in disasters." 44
C.F.R. § 206.3; see also 42 U.S.C. § 5174(a)(1); Exec. Order No.
12673, 54 Fed. Reg. 12,571 (Mar. 23, 1989). Pursuant to this
mission, FEMA has established call centers, which primarily
receive calls from those affected by disasters, and National
Processing Service Centers (NPSCs), which both receive calls and
process claims.
Plaintiffs were employees of the now-closed Puerto Rico
NPSC (PR-NPSC) run by FEMA. They filed this Title VII lawsuit
alleging that FEMA's actions in implementing a rotational staffing
plan at the PR-NPSC and in eventually closing the facility
discriminated against them on the basis of their Puerto Rican
national origin and constituted unlawful retaliation for protected
conduct. The district court granted summary judgment to
defendants, finding that defendants had legitimate,
nondiscriminatory reasons for their actions and, with respect to
the rotational staffing plan retaliation claim, that plaintiffs
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had not shown a causal link between their protected conduct and
the purported retaliation.
We affirm the dismissal of the case. We hold that
plaintiffs' disparate impact claims fail for two reasons. First,
under our caselaw, claims of different treatment based on location
absent a claim of intentional discrimination do not establish
liability under 42 U.S.C. § 2000e-2(h). Plaintiffs here have
expressly disavowed any claim of intentional discrimination.
Second, the challenged actions were job-related and consistent
with business necessity, and plaintiffs have not shown that there
were alternatives available to FEMA that would have had less
disparate impact and served FEMA's legitimate needs. Both
retaliation claims fail because plaintiffs have not shown that the
allegedly adverse employment actions were causally related to any
protected conduct.
I. Background
We recite the facts in the light most favorable to
plaintiffs. See Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10,
13 (1st Cir. 2014). In 1995, FEMA established a "temporary call
center" in San Juan, Puerto Rico to address calls from Spanish-
speaking victims of Hurricane Marilyn. The call center was located
in a vacant manufacturing plant in Puerto Rico under a disaster
lease and was originally designed to be only a temporary facility.
Because the center "was never intended . . . to serve as a long-
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term NPSC operation," it "did not have many of the amenities that
the agency would normally seek when establishing a long-term, fixed
site facility."
In 1998, the center began processing claims as well as
receiving calls, and in 2003 it became the fourth full-fledged
NPSC (the three others are in Maryland, Texas, and Virginia). The
PR-NPSC was the only fully bilingual NPSC. FEMA made some limited
improvements to the Puerto Rico facility when it became a NPSC,
but it still lacked the "state of the art furniture and equipment"
found in the other NPSCs.
In 2006, several groups of PR-NPSC employees complained
to management that they were being paid less than their mainland
counterparts. When no resolution was reached in their cases,
plaintiffs filed with the Equal Employment Opportunity (EEO)
Office an informal complaint of discrimination in October 2006 and
a formal complaint of discrimination in April 2007. In May 2007,
an employee filed with the EEO a class complaint on behalf of one
group of employees. The class complaint was dismissed in 2008.1
In June 2007, FEMA's Occupational, Safety & Health
Office conducted a Management Evaluation and Technical Assistance
1 Plaintiffs state that the FEMA administrative judge
overseeing the class complaint ordered certain plaintiffs "to
individually re-file their [pay] claims, which they did later on."
However, plaintiffs point to no evidence that the plaintiffs did
in fact re-file any claims after May 2007.
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Review (METAR) of the PR-NPSC facility.2 The METAR disclosed
several "serious deficiencies," including, for example, a lack of
exit signs at several locations in the facility and the absence of
"[i]nitial safety orientation training." Several of the
deficiencies were rated as "[s]ignificant risk[s] to health and
safety" for which "abatement measures should be initiated within
30 days." The management of the Puerto Rico center responded with
a memorandum acknowledging receipt of the report and explaining
the steps that the PR-NPSC had taken and would take to begin to
rectify the deficiencies. By May 2008, management represented
that it had addressed the major issues identified on the METAR
save one: the construction of an egress route around the building.3
Management was still concerned about the physical facility and
particularly fire hazards.
2 29 C.F.R. § 1960.25(c) requires annual inspections of
federal workplaces "to ensure the identification and abatement of
hazardous conditions." The PR-NPSC had not been inspected on an
annual basis between 2003 and 2007, and the record contains no
explanation for this failure. There is no claim, however, that
the other NPSCs have not been similarly inspected. Indeed, the
Maryland NPSC was inspected in May 2008, the Virginia NPSC in June
2008, and the Texas NPSC in April 2009.
3 PR-NPSC management contacted the center's landlord
regarding construction of an egress route around the facility, but
the landlord responded that the building met "the minimum
requirements under the [Americans With Disabilities Act] and [the
landlord was] therefore not required to make these improvements."
PR-NPSC management stated in its response to the METAR that they
would "request authorization and funds for this project, since it
continue[d] to pose a safety issue."
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PR-NPSC management arranged for a more specific Fire
Protection and Life Safety Code review of the facility in May 2008.
This review was arranged to address fire safety issues identified
in the 2007 METAR in advance of the expiration of the facility's
lease in September 2008. That inspector found several problems
and produced an extensive "List of Safety & Health Items to be
Completed for Facility to Become Fully Acceptable." To name just
a few examples, the building did not have an automatic fire
sprinkler, working fire alarms, or a sufficient number of exits.
The inspector also noted that the roof of the facility could not
withstand a Category 3 storm.
On May 16, 2008, Kathy Fields, the Branch Chief for NPSC
Operations, notified the employees of the PR-NPSC that, "[b]ecause
the safety and security of our employees is our top priority, it
is necessary to suspend operations at the PR NPSC until the
identified fire and life safety deficiencies are corrected." FEMA
placed its employees on administrative leave and continued paying
them until July 18, 2008. The facility was not occupied from May
16, 2008, to mid-July 2008. It later resumed operations, with a
limited staff.
In light of these ongoing concerns, FEMA "determined
that the cost of repairing and/or relocating the facility
necessitated a critical review." Fields began considering the
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option of closing the PR-NPSC upon expiration of the lease. As
explained in a May 19, 2008, e-mail:
[Fields'] main rationale for closure is that
the Agency no longer requires the large
Spanish-language capacity it is carrying at
the NPSC's. Also, the overall need for
personnel at the NPSC's has lessened.
Further, to the extent Spanish-language NPSC
employees are needed, this can probably be
accommodated at the other NPSC's in Texas,
Maryland and Virginia. Lastly, the lease for
the Puerto Rico NPSC is about to expire -- so
that's why she's thinking through these issues
now. . . .
The last big Puerto Rico disaster
requiring a large capacity of Spanish-language
employees in the NPSC's was Hurricane Georges
in 1998.
Since that time the need for Spanish-
language personnel at the NPSC's has been
steadily declining. Essentially, the Agency
has been carrying a large Spanish-language
capacity at the NPSC's for some time at a level
that's greater than needed.
Fields circulated a report outlining her recommendations
and her reasoning to several senior FEMA officials on May 23, 2008,
as to short-term and longer-term options.4 The report explained
that the immediate repairs necessary to temporarily reoccupy the
building until the end of the lease would cost $75,000, while the
longer-term repairs necessary to permanently reoccupy the building
would cost $525,000. These estimates did not include the cost of
a new roof, which the report noted was also needed.
4 The final decision on whether to close the center rested
with the DHS Secretary, but it was the responsibility of senior
FEMA officials to brief the Secretary on the issue.
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However, the lease on the facility would expire at the
end of September 2008, unless temporarily extended. As it was,
FEMA occupied the facility until February 2009. A new facility
would have cost FEMA nearly $9 million up front and would have had
an annual operating cost of approximately $19 million. The report
concluded that, because the remainder of the NPSC system had the
capacity to absorb the PR-NPSC's workload, these potential
expenses were not justified, and it was preferable to simply let
the facility's lease expire and not build a new facility. The
report also included a list of options for addressing the PR-
NPSC's deficiencies that had been considered and rejected.
David Garratt, FEMA's Deputy Assistant Administrator,
the principal recipient of the report, responded to Fields that he
"agree[d] with the recommendation and supporting logic." He stated
that he would forward the report to FEMA's Deputy Administrator.
On July 15, 2008, Fields sent a memorandum to all PR-
NPSC employees explaining that, based on FEMA's review of the
inspection results, FEMA had decided in the short term "to continue
making repairs to the facility and," while that was done, "to
resume operations with a reduced staff sufficient to ensure
readiness in the event disaster activity warrants increased
staffing levels." The memorandum announced a new staffing plan,
which involved having approximately 15-20 employees (out of a total
of around 300) work at a time, on a rotational basis. This
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rotational staffing plan, Fields explained, was "expected to
continue through the end of calendar year 2008; a decision on the
longer-term future of the PR-NPSC ha[d] not yet been made." FEMA
placed PR-NPSC employees who were not working on "non-duty, non-
pay status effective July 19, 2008," but volunteered to "make every
effort to assist" employees who wished to transfer to one of the
other NPSCs.5
FEMA completed "[c]ritical repairs" to keep the PR-NPSC
open in October 2008, which allowed the center to operate at an
"expanded, but still limited capacity," "subject to continued
implementation of [certain] life safety measures."6 By this time,
the FEMA Administrator had decided to close the PR-NPSC
permanently, and so recommended to DHS. The DHS Secretary agreed
5 In the months following the implementation of the
rotational staffing plan, several PR-NPSC employees filed EEO
complaints regarding that plan, alleging that FEMA was
discriminating against them on the basis of national origin.
Plaintiffs assert that these complaints were filed between July
2008 and December 2008, while defendants' brief refers only to
"August 2008 EEO complaints." However, neither plaintiffs nor
defendants provide a record citation to support their claim about
the timing of the complaints. Based on the record, it is not clear
when the first complaints were filed, but an October 8, 2008, e-
mail from Kathy Fields demonstrates that over 300 complaints about
the rotational staffing plan had been filed by that date. The PR-
NPSC EEO specialist sent a list of questions regarding the
employees' complaints to the management of the PR-NPSC in October
2008. The parties' briefs do not say whether any of these
complaints were resolved prior to the filing of this lawsuit.
6 The record does not reflect the terms under which FEMA
continued to occupy the building after the expiration of the lease
in September 2008.
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on December 10, 2008, and the closure and the elimination of all
positions at the PR-NPSC were announced, including to PR-NPSC
employees, on December 30, 2008. In an e-mail the next day, the
FEMA Administrator explained:
[W]e carefully considered all available
options before making the decision to close
the Puerto Rico NPSC. It was determined that
this facility, originally established only to
serve a temporary mission, no longer has an
operational requirement. Additionally, and in
view of the inadequacy of the existing
facility, FEMA determined that it would not be
a sound investment to repair or relocate the
Puerto Rico NPSC to a new facility.
The Administrator reiterated Fields' statement that FEMA would
assist PR-NPSC employees in seeking another position within FEMA.
Some PR-NPSC employees did in fact transfer to a different NPSC
facility.
Another memorandum from Fields to PR-NPSC employees,
dated December 30, 2008, explained the reasons for the facility's
closure in more detail. First, NPSC call volume had decreased
since 2004 in light of the availability of Internet self-service
options. Second, Spanish-language calls in particular had become
an almost negligible portion of the NPSC workload. Third, the PR-
NPSC facility was "not suitable to serve as a long-term NPSC
operation" because it "was never outfitted with modern systems
furniture and the supporting electrical infrastructure and some of
the critical telecommunications equipment needed to support future
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technology upgrades." In sum, "[t]he estimated relocation and
annual operational expenses associated with a new facility [were]
not justified based on historical and anticipated NPSC workload."
II. Procedural History
Plaintiffs filed this lawsuit in October 2009, alleging
that defendants engaged in discrimination on the basis of national
origin and retaliation in violation of Title VII. The district
court granted summary judgment to defendants on all of plaintiffs'
claims, finding, essentially, that each of defendants' challenged
actions were undertaken for non-discriminatory, valid business
reasons and therefore were not unlawful under Title VII.
On appeal, plaintiffs press only their disparate impact
and retaliation claims arising from two actions on the part of
defendants: (a) the implementation of the rotational staffing plan
during the fire-safety related work at the facility which reduced
the number of days of work for each employee, and (b) the closure
of the PR-NPSC. We review the district court's grant of summary
judgment under Federal Rule of Civil Procedure 56 de novo, and
affirm "only if the record discloses no genuine issue as to any
material fact and the moving party is entitled to judgment as a
matter of law." Old Republic Ins. Co. v. Stratford Ins. Co., 777
F.3d 74, 79 (1st Cir. 2015) (quoting Tropigas de P.R., Inc. v.
Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st
Cir. 2011)) (internal quotation marks omitted). We "read[] the
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facts and draw[] all inferences in the light most favorable to the
plaintiffs." Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19
(1st Cir. 2014).
III. Analysis
A. Disparate Impact as to Rotational Staffing Plan and as
to Closing
"Title VII prohibits both intentional discrimination
(known as 'disparate treatment') as well as, in some cases,
practices that are not intended to discriminate but in fact have
a disproportionately adverse effect on minorities (known as
'disparate impact')." Ricci v. DeStefano, 557 U.S. 557, 577
(2009). As far as we can tell, plaintiffs have not provided record
evidence showing that they are actually of Puerto Rican ancestry
and origin, such as to meet the definition of members of a
protected minority group under Title VII. See 29 C.F.R. § 1606.1
(defining "national origin discrimination" as including "denial of
equal employment opportunity because of an individual's, or his or
her ancestor's, place of origin; or because an individual has the
physical, cultural or linguistic characteristics of a national
origin group"). That the plaintiffs simply worked for FEMA in
Puerto Rico -- without evidence of their membership in a protected
class -- would not suffice for a national origin-based disparate
impact claim. See Vitalis v. Sun Constructors, Inc., 481 F. App'x
718, 721 (3d Cir. 2012) (noting that "'locals' or 'local Virgin
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Islanders'" did not constitute a protected group based on national
origin because "[n]o evidence demonstrated that all of the local
residents of St. Croix share a 'unique historical, political,
and/or social circumstance[]'" (second alteration in original)).
For purposes of our analysis, however, we can assume without
deciding that plaintiffs have satisfied this threshold element, as
their claim fails on other grounds. Cf. Candelario Ramos v. Baxter
Healthcare Corp. of P.R., 360 F.3d 53, 56 (1st Cir. 2004)
(proceeding on this assumption).
Plaintiffs have not pursued an intentional
discrimination theory on appeal, and have expressly disavowed it.
Their claim is that the discrimination was against the Puerto Rican
facility in which they worked, which caused a disparate impact on
the basis of national origin.
A plaintiff proceeding under a disparate impact theory
"establishes a prima facie violation by showing that an employer
uses 'a particular employment practice that causes a disparate
impact on the basis of race, color, religion, sex, or national
origin.'" Ricci, 557 U.S. at 578 (quoting 42 U.S.C. § 2000e-
2(k)(1)(A)(i)). If the plaintiff makes out a prima facie case,
the employer "may defend against liability by demonstrating that
the practice is 'job related for the position in question and
consistent with business necessity.'" Id. (quoting 42 U.S.C.
§ 2000e-2(k)(1)(A)(i)). And if the employer makes that showing,
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the plaintiff may rebut it by demonstrating "that the employer
refuses to adopt an available alternative employment practice that
has less disparate impact and serves the employer's legitimate
needs." Id. (citing §§ 2000e-2(k)(1)(A)(ii) and (C)).7
We reject the disparate impact claim for two reasons.
Defendants have established there is a legitimate business
justification for the decision. And under our case law there is
a logically prior disqualification of plaintiffs from making this
claim. We deal first with the logically prior question.
A different provision of Title VII definitively resolves
this claim in favor of the defendants at the outset. 42 U.S.C.
§ 2000e-2(h) provides that
[n]otwithstanding any other provision of this
subchapter, it shall not be an unlawful
employment practice for an employer to apply
different standards of compensation, or
different terms, conditions, or privileges of
employment . . . to employees who work in
different locations, provided that such
differences are not the result of an intention
to discriminate because of race, color,
religion, sex, or national origin . . . .
7 The district court held that plaintiffs had successfully
made a prima facie case of disparate impact discrimination with
respect to both the rotational staffing plan and the closing of
the PR-NPSC facility, but that defendants' actions were consistent
with business necessity and that plaintiffs had not presented
viable less discriminatory alternatives.
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"In other words, different treatment in different locations is
permissible absent an intent to discriminate." Candelario Ramos,
360 F.3d at 61.
That safe harbor statutory provision in § 2000e-2(h)
defeats both of plaintiffs' disparate impact claims, as to the
Puerto Rico employees being rotated while the facility was repaired
and as to the closing of the facility after the lease expired.8
As we said in Candelario Ramos, "[t]he subsection itself is not
surprising. Location is often a proxy for differences in cost and
other competitive circumstances . . . ." Id. at 62. Congress
acted rationally in treating this as a situation of no liability,
rather than as a defense. See id.
The dissent contends that the safe harbor provision does
not apply to this case because the plaintiffs' positions were
8 Plaintiffs' opening brief refers to a third allegedly
discriminatory employment practice -- the fact that there were no
full-time positions at the PR-NPSC. But the brief mentions this
only in passing, under a heading entitled "PR-NPSC Closure," and
that is not enough to preserve the argument. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). Moreover, at oral argument,
the court asked plaintiffs' counsel to specifically enumerate the
challenged employment practices, and she listed only the
implementation of the rotational staffing plan and the closing of
the PR-NPSC, thus confirming that the plaintiffs are not pursuing
an argument based on full-time positions on appeal. In any event,
such an argument would fail in light of the safe harbor. It would
also fail because, as the district court found, plaintiffs
presented no record evidence of any deleterious consequences they
suffered as a result of their employment classification.
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eliminated. But our decision in Candelario Ramos described
§ 2000e-2(h)'s application in expansive terms, making no mention
of a subject-matter limitation. See 360 F.3d at 62; see also
Russell v. Am. Tobacco Co., 528 F.2d 357, 362 (4th Cir. 1975)
(stating that the safe harbor would apply to decisions concerning
promotions).
It is true that defendants did not raise the safe harbor
provision in the trial court or explicitly argue it on appeal.9
But "it is settled in this circuit that 'an appellate court has
discretion, in an exceptional case, to reach virgin issues.'"
Chestnut v. City of Lowell, 305 F.3d 18, 21 (1st Cir. 2002) (en
banc) (quoting United States v. La Guardia, 902 F.2d 1010, 1013
(1st Cir. 1990)); see also Nat'l Ass'n of Social Workers v.
Harwood, 69 F.3d 622, 627 (1st Cir. 1995) (noting that the "raise-
or-waive principle, though important, is a matter of discretion");
cf. Batista v. Cooperativa De Vivienda Jardines De San Ignacio,
776 F.3d 38, 42 (1st Cir. 2015) (noting that "we may affirm the
entry of summary judgment on any ground made manifest by the
record, so long as the record reveals that there is no genuine
9 Because we find that our consideration of the safe harbor
provision is appropriate in any event, we need not address whether
the safe harbor is an affirmative defense or simply a congressional
explanation about the substantive reach of Title VII. Cf.
Candelario Ramos, 360 F.3d at 62; see generally 5 Wright & Miller,
Federal Practice & Procedure § 1271 (3d ed.) (discussing the
difference between affirmative defenses and defenses that need not
be affirmatively pleaded under Rule 8).
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issue as to any material fact and that the moving party is entitled
to judgment as a matter of law" (citations omitted)). We conclude
that this case is appropriate for the exercise of that discretion.
As our dissenting colleague agreed in his concurrence in
Chestnut, the following factors inform our discretion: (1) whether
the issue is purely legal, (2) whether the issue is of
constitutional magnitude, (3) whether the "omitted argument [is]
highly persuasive," (4) whether consideration of the argument
would prejudice the plaintiff, (5) whether the omission was
inadvertent, and (6) whether the issue "implicated a matter of
great public concern." 305 F.3d at 24 (Torruella, J., concurring);
see also United States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir.
1982).
At least four of those factors weigh in favor of our
considering the safe harbor issue. First, the issue is purely
legal and can be resolved on the existing record. Second, the
argument that it applies is highly persuasive. Third, our
consideration of the issue does not prejudice plaintiffs. Even if
the safe harbor did not apply, plaintiffs' claims would still fail
because, as we explain below, defendants have set forth legitimate
business justifications for their challenged actions. Finally,
the issue involves important questions about the reach of Title
VII that may arise in future cases. Cf. Chestnut, 305 F.3d at 24-
25 (Torruella, J., concurring) (agreeing with majority's decision
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to address an issue for the first time on appeal after a balancing
of the foregoing factors).
As an independent holding, even if the safe harbor
provision were not applicable, we would still affirm the district
court's dismissal of plaintiffs' disparate impact claims as
baseless. That is because, regardless of whether plaintiffs have
made out a prima facie case of impact, defendants have presented
legitimate business justifications for their actions, and there is
no contrary evidence. The recent Supreme Court decision in Texas
Department of Housing & Community Affairs v. Inclusive Communities
Project, Inc., 135 S. Ct. 2507 (2015), establishes this is so.
There, the Court emphasized that "disparate impact liability must
be limited so employers and other regulated entities are able to
make the practical business choices and profit-related decisions
that sustain a vibrant and dynamic free-enterprise system." Id.
at 2518. It must also be limited as applied to government entities
so as to avoid "inject[ing] racial considerations into every
[agency] decision." See id. at 2524. "Governmental or private
policies are not contrary to the disparate-impact requirement
unless they are artificial, arbitrary, and unnecessary barriers."
Id. (citation omitted).
Accordingly, "before rejecting a business justification
. . . a court must determine that a plaintiff has shown that there
is 'an available alternative . . . practice that has less disparate
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impact and serves the [entity's] legitimate needs.'" Id. at 2518
(second and third alteration in original) (quoting Ricci, 557 U.S.
at 578). If employers' business "judgments are subject to
challenge without adequate safeguards, then there is a danger that
potential defendants may adopt racial quotas -- a circumstance
that . . . raises serious constitutional concerns." Id. at 2523;
see also id. ("Without adequate safeguards at the prima facie
stage, disparate-impact liability might cause race to be used and
considered in a pervasive way and would almost inexorably lead
governmental or private entities to use numerical quotas, and
serious constitutional questions then could arise."). "[P]rompt
resolution of these cases is important." Id.
With regard to the rotational staffing plan, we agree
with the district court that "the rotational staffing plan served
FEMA's legitimate needs of maintaining as many employees as
possible to assist in the event of a disaster" while still
maintaining a safe working environment. Plaintiffs contend that
the FEMA employees could have continued working in the center while
the safety issues were addressed, but their disagreement does not
create a triable issue that FEMA's position resulted from Puerto
Rican national origin discrimination. "[G]overnmental entities
. . . must not be prevented from achieving legitimate objectives,
such as ensuring compliance with health and safety codes." Id. at
2524. The record is clear that the 2008 inspection revealed
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serious safety concerns, and FEMA's decision to reduce staffing
levels while addressing those concerns and evaluating the future
of the PR-NPSC was reasonable. Even plaintiffs' counsel conceded
that these concerns should not have been ignored. Indeed, once
FEMA became aware of the problems at the PR-NPSC, it had no choice
but to address them; FEMA would have been subject to an entirely
different sort of legal liability had it failed to do so. And
Title VII did not require FEMA to re-staff the center the minute
that the majority of the safety concerns were resolved,
particularly given that defendants had begun contemplating the
closing of the center by that time.
Regarding the closing of the center, the undisputed
facts show numerous business justifications for the conclusion
that the PR-NPSC should not have remained open. For example,
(1) remedying the deficiencies identified in the 2008 inspection
would have been very expensive; (2) establishing and operating a
new facility in Puerto Rico would have been even more expensive;
(3) even though the PR-NPSC employees took Spanish- and English-
language calls, the Puerto Rico facility was established
specifically for bilingual services, and by 2008, the volume of
Spanish-language calls had decreased; and (4) the existing NPSC
system could absorb the workload if the PR-NPSC closed. As
defendants correctly note, FEMA had ample basis to close a facility
"which still had ongoing safety issues, was in poor condition, and
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lacking critical modern infrastructure, and which was no longer
needed, given declining claims processing needs[,] rather than to
pay approximately $9 million to move to a new facility or to renew
the lease and renovate the facility," which was "never designed
for long-term FEMA use."
The report also noted that the lease on the PR-NPSC
facility was set to expire in September 2008, which might be before
repairs were completed. Even if, as plaintiffs contend, a lease
renewal period had never prompted a facility inspection before,
the fact remains that the expiration of a lease is an eminently
reasonable point at which to assess options for the future of a
facility.
Plaintiffs, noting that the PR-NPSC employees were
required to be "fully bilingual," unlike their counterparts at
other centers, suggest that defendants could have responded to the
excess capacity in the NPSC system by "releas[ing] employees
nationwide based on their performance." But such a course of
action would not have addressed FEMA's concerns about the costs
associated with maintaining the PR-NPSC facility. Those concerns
are no less legitimate simply because the PR-NPSC was the "lowest
cost of all the Centers in the nation"; FEMA still stood to realize
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a substantial cost savings by closing the PR-NPSC.10 Again, this
does not create a triable issue of national origin discrimination.
B. Retaliation as to Rotational Staffing Plan and as to
Closing
Title VII also makes it unlawful "'for employers to
retaliate against persons who complain about unlawfully
discriminatory practices.'" Ahern v. Shinseki, 629 F.3d 49, 55
(1st Cir. 2010) (quoting Noviello v. City of Boston, 398 F.3d 76,
88 (1st Cir. 2005)). To make out a prima facie case of retaliation,
a plaintiff must make a three-part showing: "(1) she engaged in
protected activity under Title VII, (2) she suffered an adverse
employment action, and (3) the adverse employment action was
causally connected to the protected activity." Gerald v. Univ. of
10 Plaintiffs list several "facts" which they contend "are
sufficient to establish a pattern which creates a controversy of
material facts and rebuts FEMA's proffered reasons, which were but
a pretext for discrimination." The dissent similarly focuses on
the question of whether FEMA harbored a discriminatory intent and
offered pretextual justifications for its actions. Plaintiffs'
and the dissent's focus on "pretext" and on "FEMA's intent or
motive" is misguided. The proper inquiries in the disparate impact
analysis are whether the challenged actions were job-related and
consistent with business necessity, and, if so, whether the
employer has refused to adopt an alternative employment practice
that has less disparate impact and serves the employer's legitimate
needs. Questions regarding "intent or motive" come into play in
a disparate treatment analysis, not a disparate impact analysis.
See Ricci, 557 U.S. at 577-78; Hicks v. Johnson, 755 F.3d 738, 744
(1st Cir. 2014).
In any event, we consider the facts identified by
plaintiffs below, in our analysis of the retaliation claim, and
find that they do not give rise to an inference of retaliatory or
otherwise improper motive on the part of FEMA.
- 23 -
P.R., 707 F.3d 7, 24 (1st Cir. 2013). A "retaliation claim may be
viable even if the underlying discrimination claim is not," because
"the employment activity or practice that [the plaintiff] opposed
need not be a Title VII violation so long as [the plaintiff] had
a reasonable belief that it was, and he communicated that belief
to his employer in good faith." See Benoit v. Tech. Mfg. Corp.,
331 F.3d 166, 174-75 (1st Cir. 2003). "Title VII retaliation
claims require proof that the desire to retaliate was the but-for
cause of the challenged employment action." Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).11
We hold that plaintiffs have failed to make the requisite
showing that the purported adverse employment activity was
causally connected to any protected activity, much less that
protected activity was a "but for" cause of the rotational staffing
plan or the closing of the PR-NPSC.
Plaintiffs identify two instances of protected activity
which they say led to retaliation in the form of the decision to
rotate employees while the center was under repair during the end
of the lease period in the summer of 2008 and the decision to close
11 Once the plaintiff makes a prima facie case, "the burden
swings to the defendant 'to articulate a legitimate, non-
retaliatory reason for its employment decision.'" Gerald, 707
F.3d at 24 (quoting Collazo v. Bristol-Myers Squibb Mfg., Inc.,
617 F.3d 39, 46 (1st Cir. 2010)). "If a defendant can do this
then the burden travels once more to the plaintiff to show that
the reason is pretext and that retaliatory animus was the real
motivating factor." Id.
- 24 -
the center in late 2008. The instances are (1) the EEO complaints
filed from October 2006 to May 2007 claiming that PR-NPSC employees
were underpaid relative to their mainland counterparts, and (2)
the EEO complaints filed in response to the July 2008
implementation of the rotational staffing system.
The first set of complaints is far too temporally remote
from the challenged actions to support an inference of causality.
"The cases that accept mere temporal proximity between an
employer's knowledge of a protected activity and an adverse
employment action as sufficient evidence of causality to establish
a prima facie case uniformly hold that the temporal proximity must
be 'very close.'" Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268,
273-74 (2001) (citations omitted) (noting that periods of three
and four months have been held insufficient). In Breeden, the
Court held that "[a]ction taken . . . 20 months later suggests, by
itself, no causality at all." Id. at 274. Here, over 14 months
elapsed between the last EEO complaint regarding pay and the
implementation of the rotational staffing system during repairs.
That is too long to support an inference that the complaints led
to a decision to reduce staffing during fire-safety related
repairs. See Shinseki, 629 F.3d at 58 ("Without some corroborating
evidence suggestive of causation . . . a gap of several months
cannot alone ground an inference of a causal connection between a
complaint and an allegedly retaliatory action."); Morón-Barradas
- 25 -
v. Dep't of Educ. of Commonwealth of P.R., 488 F.3d 472, 481 (1st
Cir. 2007) ("[M]ore than eight months . . . is [] insufficient to
establish temporal proximity.").
Plaintiffs argue that the "chain of events" comprising
their protected activity did not end until April 2008, when "[t]he
Office of Equal Rights received the [February 2008] EEOC decision"
dismissing plaintiffs' class complaint and ordering them to file
individual complaints. Plaintiffs are wrong. Dismissal of an EEO
complaint cannot be construed as protected activity on the part of
the plaintiffs, and plaintiffs have presented no evidence that
they actually filed individual complaints after the judge's
decision, or that defendants anticipated they would.
Plaintiffs suggest that there is more evidence of
causation than mere temporal proximity here because defendants'
"actions . . . were . . . a deviation from the procedures followed
within the PR NPSC and NPSC system for over ten years."
Specifically, they assert that FEMA had never before conducted
inspections of the PR-NPSC, that the conditions identified in the
2007 METAR had existed in the facility since its initial opening
in 1995 but FEMA had ignored the problems, that the conditions
were in fact not life-threatening, and that the 2008 fire report
did not actually recommend limited occupancy or closure.
We are not persuaded. Plaintiffs point to no evidence
to support their suggestion that the 2007 inspection was itself a
- 26 -
mere pretext to eventually close the center. The record in fact
suggests that FEMA management was not aware of the safety issues
until they were identified in the 2007 METAR, whereupon the
management began taking steps to rectify the problems. The record
also discloses a completely benign and logical reason for the 2008
inspection: FEMA management was concerned about the safety issues
identified in the 2007 METAR.
Plaintiffs cite Harrington v. Aggregate Industries
Northeast Region, Inc., 668 F.3d 25 (1st Cir. 2012), where we noted
that "deviations from standard procedures, the sequence of
occurrences leading up to a challenged decision, and close temporal
proximity between relevant events" can "give rise to an inference
of pretext." Id. at 33. But Harrington is easily distinguishable,
and plaintiffs make no effort to explain why it should apply here.
In finding that the plaintiff in Harrington, a whistleblower who
was fired after he refused to take a drug test, had shown
causation, we relied on evidence of very "close temporal proximity"
(72 hours), deviations from the employer's drug testing protocol,
inconsistences in the employer's accounts of the reasons for the
drug test, and the "[c]oincidence[]" that the employee was singled
out for a purportedly random drug test on his first day permanently
back at work after his whistleblowing activities came to light.
Id. at 32-34. Even there, we said the case was "close." Id. at
34. Here, in contrast, plaintiffs cannot show temporal proximity,
- 27 -
and the record discloses no shifting explanations for deviations
from protocol or improbable "coincidences" giving rise to an
inference of pretext.
The first set of complaints identified by plaintiffs
occurred too early to ground a retaliation claim. The second set
occurred too late and cannot be causally related. The decision to
close the PR-NPSC was set in motion by recommendations in May 2008,
at least two months before the implementation of the rotational
staffing system, the subject of the second set of complaints. As
the Supreme Court has explained, employers' "proceeding along
lines previously contemplated, though not yet definitively
determined, is no evidence whatever of causality." Breeden, 532
U.S. at 272; accord Muñoz v. Sociedad Española De Auxilio Mutuo y
Beneficiencia de P.R., 671 F.3d 49, 56 (1st Cir. 2012). In
Breeden, the Court held that it could not infer that the plaintiff
had been transferred in retaliation for filing a Title VII lawsuit
when the plaintiff's employer had stated that she was considering
transferring the plaintiff before the employer knew about the
lawsuit. 532 U.S. at 271-72. Here, without more evidence of
causality (and plaintiffs have pointed to none), there can be no
rational inference that the closure of the PR-NPSC, first
contemplated in May 2008, took place in retaliation for complaints
filed in the wake of the July 2008 implementation of the rotational
staffing plan.
- 28 -
Plaintiffs suggest that we can infer a retaliatory or
otherwise improper motive on the part of defendants because of a
number of circumstances: (1) "[w]henever in the past there had
been a reduction in the workload, FEMA would release employees
nationwide based on their performance," rather than closing an
entire center; (2) even though FEMA cited budgetary concerns as a
reason for closing the PR-NPSC, it was actually the cheapest NPSC
to operate; (3) even though FEMA claimed that PR-NPSC was no longer
needed because of a decrease in Spanish-language calls, the center
also handled English-language calls; (4) FEMA did not comply with
its own documented lease renewal policy with respect to the PR-
NPSC, even though it did so for all other NPSC lease renewals; and
(5) FEMA opened a new call center in Pasadena, California in 2012.12
These arguments add nothing to plaintiffs' case. Given
the safety concerns at the PR-NPSC facility (the existence of which
plaintiffs have conceded13), the impending expiration of the
12 At oral argument, plaintiffs' counsel argued that,
rather than closing the PR-NPSC, FEMA should have relocated it, as
it did the Virginia NPSC. This argument is mentioned in only the
most cursory fashion in plaintiffs' brief and is therefore waived.
See Davidson v. Howe, 749 F.3d 21, 27 n.7 (1st Cir 2014); Zannino,
895 F.2d at 17. In any event, it is not persuasive for the same
reasons that the arguments regarding the other proffered evidence
are not.
13 Plaintiffs' counsel conceded at oral argument that the
May 2008 inspection disclosed safety issues that "shouldn't have
been ignored," but maintained that the issues should have been
addressed earlier.
- 29 -
facility's lease, and the $9 million cost of establishing a new
Puerto Rico facility, it is not surprising that FEMA decided to
close the PR-NPSC in the face of reduced staffing needs.14 While
PR-NPSC employees were fully bilingual and could handle both
Spanish- and English-language calls, it is undisputed that the
Puerto Rico facility was originally established specifically for
bilingual services, the need for which had sharply diminished by
2008.15 While FEMA could have made different business decisions,
as we have said before, "[i]n the absence of proof sufficient to
create a jury issue regarding retaliation, courts should not use
cases involving unsupported reprisal claims to police the wisdom,
fairness, or even the rationality of an employer's business
judgments." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 829 (1st
Cir. 1991).
14 The FEMA handbook, which plaintiffs cite for their
contention that FEMA has a policy of uniform layoffs when staffing
needs decrease, says no such thing. It simply says that when
employees are released based on fluctuating staffing needs, FEMA
will consider "one or more" of the following factors:
"Performance," "Job Function," "Work Schedule Availability," "Most
Recent Hire Date," and "Production Levels." There is no indication
that FEMA has a hard-and-fast rule that any necessary layoffs would
be evenly distributed among the NPSCs.
15 We also note that the California facility that
plaintiffs refer to was not a NPSC, and, in any event, it opened
over three years after the closing of the PR-NPSC. That FEMA
opened a different type of facility in California three years after
closing a NPSC in Puerto Rico that had serious fire safety issues
does not raise any inference of an improper motive on FEMA's part
in closing the PR-NPSC.
- 30 -
In short, we cannot conclude on this record that the
rotational staffing plan or the closing of the PR-NPSC was causally
related to any of plaintiffs' protected activity. Plaintiffs'
retaliation claims fail, as well.
The premise of this entire lawsuit was erroneous.
Plaintiffs cannot force a government agency to keep open an unsafe
facility which would have cost excessive sums to repair when there
are alternate means by which the agency can accomplish its goals.
"[G]overnmental entities . . . must not be prevented from achieving
legitimate objectives." Tex. Dep't of Hous., 135 S. Ct. at 2524.
What the Supreme Court said in Texas Department of Housing of the
Fair Housing Act is equally true of Title VII:
Disparate-impact liability mandates the
removal of artificial, arbitrary, and
unnecessary barriers, not the displacement of
valid governmental policies. The [statute] is
not an instrument to force [agencies] to
reorder their priorities. Rather, the
[statute] aims to ensure that those priorities
can be achieved without arbitrarily creating
discriminatory effects . . . .
Id. at 2522 (citation omitted).
IV. Conclusion
We affirm the judgment of the district court.
- Dissenting Opinion Follows -
- 31 -
TORRUELLA, Circuit Judge (Dissenting). I am compelled
to dissent because Plaintiffs-Appellants ("Plaintiffs") have
raised genuine issues of material fact that require a trial before
a fact finder. This is especially the case when one considers the
actions of the majority in raising motu proprio an affirmative
defense, namely the so-called safe harbor defense, for the first
time on appeal notwithstanding Defendants-Appellees' ("Defendants"
or "FEMA") failure to raise that defense, either before the
district court or before this court.
I. Background
A. The Discrimination Claims
As the majority opinion recounts, the facts of this case
go back to 1995 when, in response to Hurricane Marilyn's effects
on Puerto Rico and the U.S. Virgin Islands, FEMA opened the Puerto
Rico National Processing Service Center ("PR Center"), which
started originally as a tele-registration center, or call center.
The scope of FEMA's operations in the PR Center evolved
over the following decade to the point that it became one of its
four national claims-processing centers in the United States,
carrying out the same duties that the other FEMA centers performed
in the mainland, with the additional benefit that -- its personnel
being bilingual -- it was able to handle calls and process claims
from both English and Spanish speakers. Contrary to the majority's
assertion, it is undisputed by both Plaintiffs and Defendants that
- 32 -
Plaintiffs are all of Puerto Rican national origin and comprise
approximately ninety-eight percent of the PR Center's workforce.
As the majority describes, when the PR Center employees
realized they had been under-compensated for the same work
performed by their counterparts in other FEMA centers across the
United States, some employees complained to management about this
situation and eventually filed complaints for equal pay before the
agency's Equal Employment Opportunity Office ("EEOO"), alleging
that by paying them less, FEMA engaged in disparate impact
discrimination on the basis of their national origin. FEMA settled
some of these claims in 2006. Later, another group of employees
also filed formal discrimination complaints before the EEOO and
requested certification as a class action.
What is striking about this second round of complaints
is the curious chain of events that began only two months after
these filings. In June 2007, the agency's Occupational, Safety &
Health Office performed an uncommon inspection of the PR Center's
premises. For the first time in twelve years it carried out a
Management Evaluation and Technical Assistance Review ("METAR").
While multiple building deficiencies and safety needs were found
in this 2007 METAR, by the time FEMA performed a follow-up building
review in May 2008, most of the deficiencies had been properly
addressed and corrected. In the meantime, FEMA's Puerto Rican
employees continued their battle for equal pay. The second round
- 33 -
of discrimination complaints that had been filed briefly before
the 2007 METAR were dismissed in February 2008, following a denial
of the class certification. Instead, the FEMA administrative judge
ordered the complainants to re-file their claims individually,
which Plaintiffs contend that they did.
B. Procedural History
In essence, Plaintiffs' case is that, faced with this
scenario, FEMA crafted a business necessity to justify placing
them in a rotational staffing plan, and then closing the PR Center
and ordering their termination. According to Plaintiffs, FEMA did
this by inspecting the PR Center premises and issuing a list of
safety concerns that allegedly required closing the center
immediately for repairs, and only allowing a limited number of
employees to continue to work on a rotational basis. Because FEMA
had never raised concerns regarding the building's conditions
prior to that point, and the safety issues were either non-life-
threatening or quickly resolved, Plaintiffs argued that FEMA
should have suspended the rotational staffing plan and allowed
them to return to work. In response to the rotational staffing
plan, Plaintiffs also filed approximately 300 complaints.
Meanwhile, FEMA did some number-crunching and came up with a
reduction in operational needs for its nationwide claims
processing centers that allegedly justified closing the PR Center
altogether. Plaintiffs responded that this was in retaliation for
- 34 -
their complaints over the rotational staffing plan, and that far
from this representing a valid business necessity that would
justify their termination, FEMA historically had released
employees based on performance and not on location. They claim
this could have been done by releasing employees from all centers
rather than simply closing the PR Center.
In sum, Plaintiffs' request for relief on appeal is that
we remand this case so that a fact finder can decide whether their
alternatives to FEMA's business needs defeat FEMA's
justifications, and whether FEMA's adverse actions against
Plaintiffs is the result of retaliatory actions arising from their
claims for equal working conditions and their requests to return
to work during the rotational staffing plan. The former can be
shown by establishing that Plaintiffs' alternatives served FEMA's
alleged business necessity without the discriminatory impact on
them or that FEMA's justifications for both the rotational staffing
plan and the PR Center closure were pretextual. The latter could
be found by a reasonable jury based on the close temporal proximity
of the adverse actions to the protected complaints for equal
working conditions and the complaints filed in response to the
rotational staffing plan. Pretext can also be inferred from
Plaintiffs' challenges to the graveness of the alleged safety
deficiencies.
- 35 -
FEMA, on the other hand, asserts that it based its
decisions on ensuring "the safety and security of [its] employees,"
and the district court agreed with this by finding that there were
"fire and safety deficiencies." FEMA also justified its closure
decision on the reduced needs for the PR Center within its
nationwide operations.
The majority now forecloses Plaintiffs' claims by
raising a safe harbor defense on behalf of FEMA, which FEMA never
raised and, in any event, does not protect one of the adverse
actions raised by Plaintiffs, i.e., the decision to terminate them.
II. Defendants Never Raised the Safe Harbor Defense
Even if the safe harbor provision of 42 U.S.C. § 2000e-
2(h) raised by the majority allows an employer to discriminate in
practice against employees on the basis that they work in different
locations, it is an affirmative defense that was not once mentioned
by FEMA at any stage in this proceeding. See Am. Tobacco Co. v.
Patterson, 456 U.S. 63, 86-87 (1982) ("Section 703(h) provides an
affirmative defense . . . .") (Stevens, J., dissenting); Marcoux
v. Maine, 797 F.2d 1100, 1108 (1st Cir. 1986) ("The district court
thought it a matter of affirmative defense for defendants to
establish that the disparity in benefits . . . was based on a
factor other than sex."). See also Jackson v. Seaboard Coast Line
R.R. Co., 678 F.2d 992, 1012 (11th Cir. 1982) ("The district court
held that the [defendant] waived its right to advance this claim
- 36 -
by failing to plead it as an affirmative defense under
Fed. R. Civ. P. 8(c). We agree."); Gunther v. Cnty. of Wash., 623
F.2d 1303, 1313 (9th Cir. 1979); Firefighters Inc. For Racial
Equal. v. Bach, 611 F. Supp. 166, 170-71 (D. Colo. 1985) ("§ 703(h)
fell within the general rule that statutory exemptions from
remedial statutes are affirmative defenses because '§ 703(h)
serves to exempt from Title VII the disparate impact of a bona
fide seniority system.'" (quoting Jackson, 678 F.2d at 1013)).
However, the majority defends its unusual action of
raising the safe harbor on behalf of the Defendants by pointing to
the factors considered in Chestnut v. City of Lowell, 305 F.3d 18,
24 (1st Cir. 2002). Specifically, it claims that at least four of
the following six factors applied in that case allow this court to
consider a waived defense, even if it was not raised by the parties
on appeal: (1) whether the waived issue is purely legal; (2)
whether the issue is of constitutional magnitude; (3) whether the
"omitted argument [is] highly persuasive"; (4) whether
consideration of the argument would prejudice the plaintiff; (5)
whether the omission was inadvertent; and (6) whether the issue
"implicated a matter of great public concern." I disagree with
the majority's analysis of these factors as none justify applying
the waived defense in this context.16
16 The cases cited by the majority are distinguishable
because in those cases the court used this framework to analyze
- 37 -
First, I agree that, assuming it is appropriate to
consider this defense, we have a purely legal matter. But the
outcome of this question is not entirely favorable to Defendants
because, as will be explained in more detail, the safe harbor
defense is not applicable to discharge situations and has never
been applied in contexts similar to the instant case.
Second, there is no basis in the record to hold that
this is an issue of constitutional magnitude requiring that the
court steps into arguments not properly raised by the parties. If
there is a constitutional issue, it is raised by the majority's
actions in denying Plaintiffs the process which is due to litigants
by preventing them from being heard on issues that were not before
the court.
Third, whether the omitted argument is "highly
persuasive" is easily questioned because, as previously stated and
will be further discussed, the safe harbor defense is inapplicable
to cases of termination.
Fourth, on the question of whether passing by the court
on the omitted argument would be prejudicial to Plaintiffs, the
majority concludes that there is no prejudice. I ask, can it be
seriously argued that Plaintiffs are not prejudiced when this court
whether it should allow an argument that was waived below but was
raised on appeal. Here, by contrast, Defendants did not even
mention the safe harbor on appeal.
- 38 -
decides their case mainly on arguments and issues not raised by
Plaintiffs' party opponents and as to which Plaintiffs were not
given an opportunity to rebut? The answer is a self-evident and
obvious "of course there is prejudice."
Fifth, whether the omission was inadvertent is not
easily resolved. Here, there are two possible explanations for
their omission: either Defendants did not argue the safe harbor
defense because it simply does not apply or Defendants made a
conscious choice to only raise the business necessity as a defense.
It is possible that FEMA chose not to attack the proof offered in
support of Plaintiffs' prima facie case by raising this defense,
because a "defendant may confess [disparate impact] and avoid [this
issue], acknowledging the legal sufficiency of the prima facie
case but endeavoring to show either that the challenged practice
is job-related and consistent with business necessity, or that it
fits within one or more of the explicit statutory exceptions
covering bona fide seniority systems, veterans' preferences, and
the like." EEOC v. S.S. Clerks Union, Local 1066, 48 F.3d 594,
602 (1st Cir. 1995) (emphasis added) (internal citations omitted).
Therefore, a defendant is free to rebut the prima facie case by
doing three things: (1) attack the plaintiff's prima facie proof
(which did not happen in this case) (2) prove a business necessity
(which is what FEMA chose), or (3) raise a safe harbor defense
(which is what the majority did for them). Here, Defendants only
- 39 -
chose the second option. Therefore, I do not see how we can
readily conclude that the omission to raise the defense the
majority is now raising for them was necessarily "inadvertent".
This conclusion is reinforced by the fact that Defendants were
represented by competent counsel who must have been aware that
this defense was not available in similar termination cases.
Sixth, it is hard to comprehend how this defense is a
matter of public concern that requires the court raising the
defense on their behalf.
In any event, even if validly raised by the majority on
behalf of Defendants, for the reasons explained below, the safe
harbor defense does not help FEMA in this case.
III. The Safe Harbor Does Not Apply to Disparate Impact
Involving Termination
This defense applies to disparate impact on employee
benefits and working conditions. The main case cited by the
majority in support of raising the safe harbor for the Defendants,
Candelario Ramos v. Baxter Healthcare Corp. of Puerto Rico, 360
F.3d 53 (1st Cir. 2004), has to do with disparate impact in pension
benefits, not termination. The instant case appears to be the
only case where a court has applied this affirmative defense in
the context of termination.17
17 We note that this safe harbor has been raised by
defendants in cases where a plaintiff was terminated because a
bona fide seniority system adopted as part of a labor agreement
- 40 -
As required by our legal training, we begin by examining
the full text of the safe harbor provision, which reads as follows:
(h) Seniority or merit system; quantity or quality
of production; ability tests; compensation based on sex
and authorized by minimum wage provisions
Notwithstanding any other provision of this
subchapter, it shall not be an unlawful employment
practice for an employer to apply different standards of
compensation, or different terms, conditions, or
privileges of employment pursuant to a bona fide
seniority or merit system, or a system which measures
earnings by quantity or quality of production or to
employees who work in different locations, provided that
such differences are not the result of an intention to
discriminate because of race, color, religion, sex, or
national origin, nor shall it be an unlawful employment
practice for an employer to give and to act upon the
results of any professionally developed ability test
provided that such test, its administration or action
upon the results is not designed, intended or used to
discriminate because of race, color, religion, sex or
national origin. It shall not be an unlawful employment
practice under this subchapter for any employer to
differentiate upon the basis of sex in determining the
amount of the wages or compensation paid or to be paid
to employees of such employer if such differentiation is
authorized by the provisions of section 206(d) of title
29.
42 U.S.C. § 2000e-2(h) (emphasis added).18
contains "last hired-first fired" language regulating furloughs in
the context of reduction of force decisions. See Cates v. Trans
World Airlines, Inc., 561 F.2d 1064, 1066 (2d Cir. 1977). That,
however, is entirely different from the instant case, where --
even assuming no retaliation -- employees were terminated based on
location, not to comply with a bona fide seniority system.
18 Note that the general provision of the statute
establishes that it "shall be an unlawful employment practice for
an employer . . . to fail or refuse to hire or to discharge an
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
- 41 -
There is not an iota of language in this statutory
provision which can lend support to the majority's application of
this provision to freely allow terminations without Title VII
liability. The majority's interpretation is an absolute
distortion of the plain and unequivocal language of this statute.
We need go no further as this statute speaks for itself.
"[R]eliance on legislative history is unnecessary in light of the
statute's unambiguous language." Mohamad v. Palestinian Auth.,
132 S. Ct. 1702, 1709 (2012) (quoting Milavetz, Gallop & Milavetz,
P.A. v. United States, 559 U.S. 229, 236 n.3 (2010) (internal
quotation marks omitted)). See also Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 119 (2001) ("[W]e do not resort to legislative
history to cloud a statutory text that is clear." (alteration in
original) (quoting Ratzlaf v. United States, 510 U.S. 135, 147–
148 (1994))).
Nevertheless, the legislative history of this provision
fully supports its plain meaning and has been explained in great
detail by the Supreme Court. Its enactment stems from Congress's
concern for allowing the uninterrupted continuation of existing
of employment . . . ." 42 U.S.C. § 2000e-2(a). Yet, 42 U.S.C.
§ 2000e-2(h) provides a safe harbor for different standards of
compensation, and other terms and conditions of employment, but is
completely silent as to hiring and termination decisions. The
narrower language of the safe harbor supports the conclusion that
it was not intended to serve as a defense to avoid liability for
hiring and firing decisions.
- 42 -
seniority discrepancies and vested benefits when Title VII became
effective. Specifically, Congress responded with this section as
an amendment to the original bill after it passed the House because
of the opposition to Title VII's potential effects on union
seniority systems, and since the Congressional intent behind Title
VII was not to affect the vested rights of employees. See
generally Beth W. Brandon, The Seniority System Exemption to the
Title VII of the Civil Rights Acts: The Impact of a New Barrier to
Title VII Litigants, 32 Clev. St. L. Rev. 607, 611-13 (1983-84).
See also Patterson, 456 U.S. at 81-83 (explaining the legislative
history and the "fears [that] were expressed concerning . . .
seniority rights and existing seniority systems" (citing Franks v.
Bowman Transp. Co., 424 U.S. 474, 759 (1976))); Pullman-Standard,
Inc. v. Swint, 456 U.S. 273, 284 (1982) (examining whether a
union's seniority system was protected by § 703(h) defense); Gen.
Elec. Co. v. Gilbert, 429 U.S. 125, 143-45 (1976) (examining
§ 703(h) defense on discrimination in disability plan and
benefits); Robinson v. Shell Oil Co., 519 U.S. 337, 343 (1997)
("Of course, there are sections of Title VII where, in context,
use of the term 'employee' refers unambiguously to a current
employee, for example, those sections addressing salary or
promotions. See § 703(h), 42 U.S.C. § 2000e–2(h) (allowing
different standards of compensation for 'employees who work in
different locations'")); AT&T Corp. v. Hulteen, 556 U.S. 701, 708-
- 43 -
10 (2009); Goodman v. Merrill Lynch & Co., 716 F. Supp. 2d 253,
261 (S.D.N.Y. 2010) (explaining what is a bona fide "merit,
seniority, or production-based compensation system").
Cases dealing with hiring practices to which the
employer applies a "bona fide merit system" allowed under § 703(h)
are nonetheless subject to the same disparate impact analysis
requested by Plaintiffs in the instant case. This analysis is to
be applied in the same manner that it was established by the
Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971),
instead of just applying this safe harbor defense. See Guardians
Ass'n of N.Y. City Police Dept., Inc. v. Civil Serv. Comm'n, 633
F.2d 232, 253-54 (2d Cir. 1980). Because that is the framework
used for hiring decisions, it is odd to differentiate the analysis
required in the instant case -- as the majority proposes -- by
holding that when it comes to termination, rather than performing
a disparate impact analysis, courts may just turn to a safe harbor
that was intended to regulate benefits and conditions of
employment. Notably, the majority's only basis for applying the
safe harbor in this context is that Candelario Ramos -- which
involved pension benefits -- calls for a broad application, and
that there are some cases in which it was been applied to promotion
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decisions, which are more akin to benefits and conditions of
employment than to hiring and termination decisions.19
In synthesis, I disagree with the majority's application
of the safe harbor in this context. Because the safe harbor should
not be dispositive of this case, the court needed to examine
closely the material facts in controversy raised by Plaintiffs.
IV. Factual Controversies
A. FEMA's Sudden Concern over Employees' Safety
The first problem with the story that FEMA offers to
support the alleged adverse actions is that, even accepting the
severity of the safety concerns on which their business-necessity
justification was partly premised, the findings of the June 2007
METAR inspection are very similar to those of the 2008 review, and
yet, the need for action (closing the center for repairs) on
previously non-threatening conditions arose unexplainably in 2008.
The findings were that: a reevaluation of the fire alarm system
and related emergency procedures needed to be conducted;
assessment and modification of the building's egress routes was
needed; the facility did not have a hazardous communication,
material or ladder safety program; OSHA Form 300 log and injury
and incident report form 301 procedures were not updated; exit
19 It is also particularly incongruous that these employees
were discriminated against for being in different locations when
they had to have higher qualifications because they had to be
bilingual to receive calls in Spanish and English.
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signs were not present at several locations throughout the
facility; internal safety orientation training not provided, among
other similar needs. By the time the 2008 review was performed,
all matters were either corrected or had a corrective plan in
effect. In fact by May 21, 2008, FEMA's own internal
communications show that the "only item pending on the [2007] METAR
which [had] not been solved" was the construction of a new egress
route. It bears noting that this egress route had never been a
concern of FEMA, as the building never had one since it was first
occupied by FEMA in 1995. In fact, the egress pathway and ramp
that were mentioned in the 2007 METAR were only recommended as
"mid-long term recommendations." Also, the property lease for
this facility had been renewed periodically but the facility was
not inspected every time it was renewed.20 For twelve years, FEMA
officers and managers visited the PR Center without ever raising
any concerns about dangerous conditions on site.
Furthermore, Plaintiffs argue that the 2008 review
findings that were necessary for re-occupancy of the PR Center
were minimal.21 These included conducting a fire watch in the
20The lease of the PR Center property was up for renewal
in September 2008, but the facility was closed temporarily on May
16, 2008, and then partially re-opened during the rotational
staffing plan.
21A former FEMA Branch Chief stated that the building
condition issues were "easily correctable." The cost of the
repairs was estimated at $75,000.
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building during occupancy, removing magnetic locks from exit
doors, removing all storage in the egress corridors, updating and
practicing the Occupant Emergency Plan, installing a secondary
egress man-gate on the perimeter fence at the rear of the building,
adding additional fire extinguishers, and obtaining fire hydrant
flow test information. Crucially, the 2008 review report did not
recommend closing the PR Center or reducing its capacity by
implementing the rotational staffing plan. And, by July 2008, the
concerns identified in the May 2008 review -- which Plaintiffs
insist were not life threatening -- had already been resolved. In
sum, even assuming the validity of FEMA's business necessity to
assure the safety of its employees, a jury could reasonably agree
with Plaintiffs' compelling dispute of FEMA's justification for
denying their alternative option to the rotational staffing plan
which was to reoccupy the PR Center's premises and continue
working.
B. The Newly Discovered Reduction of Operational
Needs
As the email exchanges between FEMA officials contained
in the record reveal, FEMA began looking for justifications for
the permanent closure of the PR Center after the initial emergency
closure for repairs on May 16, 2008, following the 2008 review.
At that point, the record shows that FEMA did not possess metrics,
data, or statistics showing that the PR Center was not necessary
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to its operations nationwide or even measuring the potential
effects of its closure on the agency's operations. What's more,
some FEMA officers did not even know why the agency had come to
concentrate on Puerto Rico at the time. That is, FEMA first closed
the center and instituted the rotational staffing plan before it
had collected the evidence to come up with one of its "business
necessity" justifications. Plaintiffs presented an email sent by
the Deputy Administrator of FEMA on May 26, 2008, asking things
like the "desired capacity and exactly how we can achieve [it]
without Puerto Rico"; "[w]hat do we expect to be [our] Spanish
language requirement and what options will we have?"; "[w]ant to
show that they are typically a small part of the whole system, and
that the system has the capacity to absorb the Puerto Rico
workload"; "[h]ow long have the facility deficiencies existed and
why are we just being attentive now?"; "[h]ave there been any
trends that reduce the role of the NPSC?"; "[c]an we show trends
in greater usage of on-line?"; "[w]e need to show that we can live
without Puerto Rico, even in a catastrophic situation"; and "[w]e
will need to identify each of the other sites and indicate why we
would not close them or reduce their capacity." Nevertheless, the
agency based its justification for the rotational staffing plan
and closing the PR Center on the firm conviction that, in addition
to it being a safety concern, it was no longer necessary to its
operations. Indeed, the data on operational needs and statistics
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was only known -- by December 2008 -- when the decision to close
permanently was made, and after all the alleged "life-threatening"
safety concerns had already been addressed. It is hard to see how
the safety of the employees was still an issue by the time the
data needed to support the second part of the alleged business
necessity was collected.
As part of its operational justifications for the
closure, once the rotational staffing system had been implemented,
FEMA quantified an alleged reduction in Spanish calls. Plaintiffs
contend, however, this is irrelevant because the employees in the
PR Center were bilingual and had been processing calls and claims
from all across the United States for years. Furthermore,
Plaintiffs argue that as of October 2008, even before the final
closure of the center, FEMA already had had to contract external
language services.
The majority states that it agrees with the district
court that the rotational staffing plan served FEMA's needs by
allowing it to have some employees in the PR Center, despite the
building's unsafe conditions, so that they could assist in a
disaster scenario. This seems completely incongruent with FEMA's
claim that it had no operational need for the PR Center only a few
months after the rotational staffing plan began. It is nonsensical
to say that the justification for closing the PR Center permanently
was that FEMA did not need those employees because of reductions
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in operations while recognizing that FEMA had a legitimate need of
maintaining at least some of them in that same center to assist in
the event of a disaster.
Plaintiffs also allege that, whenever FEMA faced a need
for reduction in workforce in the past, it released employees
nationwide based on performance. While Plaintiffs do not argue
that FEMA regulations required it to do so, they claim that the
agency departed from its prior practice only to discriminate
against them by closing the PR Center and ordering their
termination. The majority's answer to Plaintiffs' alternative
consisting in that FEMA should have terminated employees on a
national level based on performance is a non sequitur. It claims
that FEMA could not do that because it had also just realized that
it had a budgetary need to close the PR Center. Plaintiffs'
argument, however, is not that FEMA could release employees across
the United States based on performance while leaving the PR Center
in service. What they argue is that it could have closed the PR
Center and still kept some of the Puerto Rican employees in other
centers in the mainland by releasing employees because of their
performance and not in a way that had a disparate impact over
Puerto Rican employees, or over employees that had filed hundreds
of complaints for disparate working conditions and compensation.
Relatedly, Plaintiffs also dispute that some employees
were allowed to transfer to other National Processing Service
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Centers because at the time the decision to permanently close the
PR Center was made, they were given only twenty-four hours to
decide whether they wanted to move to the mainland. Furthermore,
not all were offered positions in another center and most were
asked to reapply and compete for new openings in those positions.
Taken together, all these facts become increasingly
suspicious when considering that the employees in the PR Center
had always been classified as call center employees, while their
non-Puerto Rican counterparts in the mainland were classified at
higher pay scales for doing the same claims-processing tasks. Over
the previous two years, Puerto Rican employees had been battling
FEMA over equal pay. Moreover, in the case of Program Specialists,
they complained about the discrepancy in pay, and when FEMA agreed
to bring them to the corresponding classification, they were placed
in the lowest step of the classification, and denied increases
earned as well as back pay. In addition, when the final closure
decision was made, the PR Center employees had filed over 300
complaints with the EEOO because of the rotational staffing system
imposed after the initial closure following the May 2008 review.
Thus, I disagree with the majority that Plaintiffs are
not entitled to have their day in court -- not even for their
retaliation claims -- to show that FEMA's justification to
terminate them and close the PR Center based on safety concerns
and the alleged reduced operational needs, were simply pretextual
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because its true reason was to avoid the discrimination complaints
brought by the Puerto Rican employees. These questions of fact
are in no way foreclosed by the Supreme Court's recent decision in
Texas Department of Housing & Community Affairs v. Inclusive
Communities Project, Inc., 135 S. Ct. 2507 (2015), as the majority
implies. At a minimum, "[a] court must determine that a plaintiff
has shown that there is 'an alternative . . . practice that has
less disparate impact and serves the [entity's] legitimate
needs.'" Id. at 2511 (alterations in original) (quoting Ricci v.
DeStefano, 557 U.S. 557, 578 (2009)).
I agree with the majority that disparate impact claims
must be examined cautiously to avoid interjecting racial
considerations into every agency decision and to avoid causing
potential defendants to establish racial quotas. Maj. Op. at 19-
20 (citations omitted). However, there are two problems with
relying on those public policy considerations to dismiss this case.
First, Plaintiffs' claims are not limited to disparate impact
concerns. Indeed, they raise serious controversies of material
fact regarding conspicuous acts of retaliation. Second,
Plaintiffs never asked for anything close to establishing quotas
to guarantee the employment of Puerto Rican employees. They
present triable issues of material fact as to whether -- even
assuming the validity of FEMA's justifications -- their proposed
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non-discriminatory alternatives served FEMA's alleged business
necessity.
C. Pretext Analysis in Disparate Impact Claims
Even though Plaintiffs expressly conceded in oral
argument that they do not advance any of their claims as disparate
treatment claims, this does not change the required analysis for
pretext under disparate impact and retaliation. Therefore,
Plaintiffs should be allowed their day in court to prove that their
alternatives to FEMA's alleged business needs defeated the same,
and that the adverse actions were retaliatory. In addition, they
should be allowed to establish as part of their disparate impact
claims that the justifications for the adverse actions were
pretextual.
In cases for disparate impact the analysis is also
subject to the well-known burden-shifting standard, which allows
for a plaintiff to prove pretext. See Albemarle Paper Co. v.
Moody, 422 U.S. 405, 425 (1975) (applying burden-shifting analysis
for pretext in a disparate impact case); see also S.S. Clerks
Union, Local 1066, 48 F.3d at 602 (same); Abbott v. Fed. Forge,
Inc., 912 F.2d 867, 876 (6th Cir. 1990) (considering burden-
shifting analysis and pretext in a disparate impact case); Bronze
Shields, Inc. v. N.J. Dept. of Civil Serv., 488 F. Supp. 723, 726-
27 (D.N.J. 1980) (applying burden-shifting analysis and
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considering a 42 U.S.C. § 20002-2(h) defense in a disparate impact
claim under Griggs).
In fact, in S.S. Clerks Union, Local 1066, 48 F.3d at
601-602, we discussed extensively the applicability of the burden-
shifting analysis to disparate impact claims. In that case, we
also mentioned the importance of raising exceptions -- including
seniority systems -- as defenses. Id. Having explained the
requirements for a prima facie showing, we went on to state:
At that point, the defendant has several options.
First, it may attack the plaintiff's proof head-on,
debunking its sufficiency or attempting to rebut it by
adducing countervailing evidence addressed to one or
more of the three constituent strands from which the
prima facie case is woven, asserting, say, that no
identifiable policy exists, or that the policy's
implementation produces no disparate impact, or that the
plaintiff's empirical claims—such as the claim of
causation—are insupportable.
Alternatively, the defendant may confess and avoid,
acknowledging the legal sufficiency of the prima facie
case but endeavoring to show either that the challenged
practice is job-related and consistent with business
necessity, or that it fits within one or more of the
explicit statutory exceptions covering bona fide
seniority systems, veterans' preferences, and the like.
In all events, however, a defendant's good faith is not
a defense to a disparate impact claim.
If the defendant fails in its efforts to counter
the plaintiff's prima facie case, then the factfinder is
entitled—though not necessarily compelled, to enter
judgment for the plaintiff. On the other hand, even if
the defendant stalemates the prima facie case by
elucidating a legitimate, nondiscriminatory rationale
for utilizing the challenged practice, the plaintiff may
still prevail if she is able to establish that the
professed rationale is pretextual. The plaintiff might
demonstrate, for example, that some other practice,
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without a similarly undesirable side effect, was
available and would have served the defendant's
legitimate interest equally well. Such an exhibition
constitutes competent evidence that the defendant was
using the interdicted practice merely as a 'pretext' for
discrimination.
Id. at 602 (citations and internal quotation marks omitted)
(emphases added). Based on the above-cited text, the Defendants
in this case should have raised their business necessity or the
safe harbor defense. They chose only the former and it is still
subject to pretext. Thus, Plaintiffs should also be allowed to
prove their pretext argument before a fact finder.22
V. Conclusion
For the foregoing reasons, I would remand this case for
trial. The majority is wrong as a matter of law that Defendants'
adverse actions against Plaintiffs are protected by an affirmative
defense that Defendants did not raise either before this court or
the district court. In addition, that safe harbor defense does
not protect an employer's decision to terminate employees, as shown
by the clear text of 42 U.S.C. § 2000e-2(h), its legislative
history and case law.
22 The majority argues that this last step of the burden-
shifting analysis regarding pretext can be avoided in disparate
impact cases because the Supreme Court left it out of its
restatement of applicable law in Ricci, 557 U.S. at 578. However,
in Ricci, the Court was quoting the statute in § 2000e-
2(k)(1)(a)(i), which codified the cause of action for disparate
impact recognized in Griggs. That statutory text was enacted in
1991, which suggests this court was aware of it when the opinion
was issued in S.S. Clerks Union, Local 1066, in 1995.
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Plaintiffs deserved a chance to prove that their
alternatives to FEMA's adverse actions reasonably accommodated
FEMA's business necessities -- to the extent that these were valid
-- without having a disparate impact against them, and they should
have a chance to prove that reasons to place them in a rotational
staffing plan and then terminate them were pretextual.
Specifically, a jury should decide the genuine disputes as to
material fact regarding: (1) whether FEMA's 2007 METAR inspection
and the 2008 follow-up building review were causally related to
Plaintiffs' protected conduct; (2) whether the findings of these
inspections support FEMA's alleged business justifications for the
rotational staffing plan and the Plaintiffs' termination,
particularly, in light of Plaintiffs' challenges to the severity
of the safety concerns and their questioning of the alleged
reduction in operational needs; (3) whether the safety concerns
required FEMA to close the PR Center for repairs since the record
shows that these had never been a concern of FEMA, the 2007 METAR
results did not require closing for repairs and having a rotational
staffing plan, while almost identical findings did require so in
2008, the safety concerns had been corrected by the time the
decision to permanently close the center was made, and since the
only missing items, i.e., the egress pathway and ramp, were only
listed as "mid-long term recommendations"; (4) whether Plaintiffs'
non-discriminatory alternatives to the adverse actions would not
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serve FEMA's business necessities; and (5) whether FEMA's
justifications were pretextual.
For the reasons stated, I dissent.
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