APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Daniel R. Domínguez, U.S. District Judge.
Adriana G. Sánchez-Paré s, with whom Á lvaro R. Calderón, Jr., Francisco J. Ortiz-Garcí a, and Á lvaro 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.
Before Torruella, Lynch, and Thompson, Circuit Judges. TORRUELLA, Circuit Judge (Dissenting).
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 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.
We recite the facts in the light most favorable to plaintiffs. See Ramirez-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 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.
In June 2007, FEMA's Occupational, Safety & Health Office conducted a Management Evaluation and Technical Assistance Review (METAR) of the PR-NPSC facility. 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. Management was still concerned about the physical facility and particularly fire hazards.
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 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. 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.
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 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, nonpay status effective July 19, 2008," but volunteered to " make every effort to assist" employees who wished to transfer to one of the other NPSCs.
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."  By this time, the FEMA Administrator had decided to close the PR-NPSC permanently, and so recommended to DHS. The DHS Secretary agreed 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 PRNPSC 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 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 facts and draw all inferences in the light most favorable to the plaintiffs." Ramirez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19 (1st Cir. 2014).
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, 129 S.Ct. 2658, 174 L.Ed.2d 490 (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.Appx. 718, 721 (3d Cir. 2012) (noting that " 'locals' or 'local Virgin 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, 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)).
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 ...