APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
Wilbert Méndez Marrero for appellant.
Angel A. Valencia-Aponte for appellees Autoridad de Energí a Elé ctrica;
Víctor Ruiz, in his official capacity; and Miguel Cordero, in his personal and official capacities.
Susana I. Peñagarícano-Brown, Assistant Solicitor General, Commonwealth of Puerto Rico, with whom Margarita L. Mercado Echegaray, Solicitor General, Commonwealth of Puerto Rico, was on brief, for appellee
Víctor Ruiz, in his individual capacity.
Before Thompson, Lipez, and Kayatta, Circuit Judges.
THOMPSON, Circuit Judge.
Plaintiff-appellant Minerva Carrero-Ojeda (" Carrero" ) says that after she blew the whistle on wrongdoing in her office, her employer and her superiors retaliated against her in myriad ways. They threatened her, unjustly disciplined her, and -- most relevantly for our purposes -- deprived her of benefits owed to her under the Family and Medical Leave Act (" FMLA" ), 29 U.S.C. § § 2601-2654, and ultimately fired her. Carrero now appeals the district court's dismissal of her FMLA complaint for failure to state a claim. She also challenges the court's failure to grant or, at least, expressly deny her post-judgment request for leave to amend the pleadings. For reasons we explain shortly, we affirm.
Because this appeal follows a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)" ), we take as true the facts alleged in Carrero's complaint and draw all reasonable inferences in her favor. See Maloy v. Ballori-Lage, 744 F.3d 250, 251 (1st Cir. 2014).
A. The Facts
Carrero began working for defendant-appellee Autoridad de Energí a Elé ctrica (the Puerto Rico Electrical Power Authority, or " PREPA" ) in September 1986. At all times relevant to her complaint, Carrero held the position of administrative coordinator in PREPA's Aguadilla Technical Office. Defendant-appellee
Víctor Ruiz was district engineer of the technical section and Carrero's immediate supervisor. Defendant-appellee Miguel Cordero was PREPA's executive director.
In August 2007, PREPA's internal affairs office initiated an investigation of corruption in the Aguadilla Technical Office. Carrero's supervisor, Ruiz, was one of the targets. Carrero testified and provided information for the investigation. To get back at her, Carrero says, Ruiz, " in connection and conspiracy with other employees, commenced a pattern of discriminatory acts against [her] affecting the terms, conditions, benefits[,] and privileges of her employment." Carrero claims " [t]he acts of discriminatory retaliation included denying [her] job promotions, denying [her] marginal benefits, submitting [her] to unjust disciplinary measures, threatening [her] with dismissal, initiat[ing] illegal administrative procedures[,] . . . illegally discharging her from her employment," and " violating her rights under [the] FMLA."
Specifically, in November 2007, Carrero alleges that Ruiz " commenced an administrative investigation" against her " for allegedly having photocopied her personnel file without [his] consent." Carrero says this occurred " during the period when [she] was on family leave protected by the FMLA for the care of her mother due to a medical procedure she had to undergo." The subsequent investigation led PREPA's chief human resources officer, Alex Carvajal, to file administrative charges against Carrero for violations of PREPA's Rules of Conduct 18 and 29, as well as Notes 1 and 5, on January 30, 2008. (Carrero does not tell us what these rules prohibit or what the charges stated. From now on, we'll call them the " January 2008 charges." )
While the January 2008 charges were pending, other harassment was underway. For example, in March 2008, PREPA's labor affairs office refused to pay Carrero's travel expenses to attend an administrative hearing, though it had always reimbursed her for such travel before. Carrero contends that this shows the labor office was in cahoots with Ruiz and company. Because of the denial, Carrero filed an administrative claim " before the Court of Appeals" (she does not say which one), which ordered a hearing. Carrero says PREPA did not comply with that court's judgment (but does not say what the judgment was).
In April 2008, PREPA's internal affairs office summoned Carrero to offer testimony in the corruption investigation of the Aguadilla Technical Office. A few weeks later, Ruiz instructed a security guard to withhold a vehicles report from Carrero that she usually maintained and that she had planned to give to the investigators.
In June 2008, Carrero's mother fell and injured herself. Carrero requested and was granted leave to care for her. While Carrero was away, human resources chief Carvajal and two co-workers (whose roles Carrero does not explain) promoted three PREPA employees to superior positions in the Aguadilla Technical Office " without granting [Carrero] the opportunity . . . [to] interview and knowing she applied for such position." In doing so, Carrero says they deprived her of an opportunity for promotion in violation of her FMLA rights. In response, Carrero filed complaints with the Equal Employment Opportunity Commission (" EEOC" ), as well as a grievance with the labor affairs office, none of which were ever resolved.
Also while Carrero was out on leave, Ruiz and two different co-workers (whose roles Carrero likewise does not explain) instigated a second administrative investigation of Carrero. The ensuing inquiry caused human resources chief Carvajal to file a second set of administrative charges
against Carrero on August 8, 2008 for violations of PREPA's Rules of Conduct 17 and 27. (Again, Carrero does not tell us what these rules prohibit or what the charges stated. We'll call them the " August 2008 charges" from here on out.) In response, Carrero filed another complaint with the EEOC against Ruiz for violating her FMLA rights that was also never resolved.
In September 2008, Ruiz tasked Carrero with preparing absence letters for employees with unsatisfactory attendance. Then, in October 2008, Ruiz asked Carrero to photocopy the personnel files of every Aguadilla Technical Office employee. Carrero complains that both jobs were beneath her managerial status and were better suited to " clerical personnel." Additionally, she says the assignments amounted to " employment harassment" because they violated PREPA's procedures and because she was then under investigation for copying her own personnel file without permission. In response, she filed a union grievance against Ruiz, but no resolution was reached.
On January 23, 2009, a hearing officer reviewing the January 2008 charges recommended Carrero's discharge. A few weeks later, an employee acting on Ruiz's behalf twice attempted to " force [Carrero] to receive" a copy of the resolution of the charges -- once at Ruiz's office and once at Carrero's office -- but Carrero refused. Carrero perceived these attempted deliveries to be " acts of intimidation."
In May 2009, Ruiz, along with unnamed co-conspirators in PREPA's labor office, deducted 6 hours and 16 minutes from Carrero's pay and made her use vacation leave for time spent attending a meeting regarding her EEOC complaints against Ruiz and a co-worker for violating her FMLA rights. Later, PREPA's director of transmission and distribution ordered that Carrero be reimbursed for the discounted hours.
On June 22, 2009, though one hearing officer had already recommended Carrero's termination based on the January 2008 charges, Cordero -- then newly appointed as executive director -- ordered a second hearing on those charges before a different officer. In the meantime, in September 2009, a PREPA accounting office employee denied Carrero's reimbursement request for $201 for travel to San Juan for a meeting with the labor affairs office. The office usually paid Carrero back promptly for her work-related expenses.
On May 25, 2010, Carrero informed Cordero by letter that she was a collaborating witness in the internal corruption investigation. Shortly thereafter, on June 10, 2010, a second hearing officer recommended Carrero's discharge based on the January 2008 charges.
Not much later, on August 19, 2010, Carrero again applied for family leave to take care of her sick mother, " who was suffering [from] various serious health conditions which might need emergency treatment and medical care outside and at home." On September 2, 2010, Ruiz recommended that Carrero's request be granted. Another employee approved her request that same day, but Carrero did not take the leave immediately.
In October 2010, as a result of the administrative investigation of corruption in the Aguadilla Technical Office, the internal affairs office recommended filing charges against Ruiz, among others, for embezzlement. Thereafter, Carrero says she was " subject[ed] to threats and retaliation by . . . Ruiz" and others under investigation, causing her to " fear for her life."
" By the middle of October 2010," Carrero's lawyer received a letter signed by executive director Cordero saying that
Carrero was discharged from her position effective October 3, 2010. Carrero's lawyer told her about the letter, but Carrero herself was not notified by PREPA, so she kept working as usual. Then, on October 27, 2010, Carrero's lawyer received a second letter, this time signed by Angel Rivera (another player whose role Carrero does not explain) on Cordero's behalf, reiterating that Carrero had been discharged but amending the effective date to October 31, 2010. Carrero says she did not receive a copy of this letter either.
In the middle of all this, on the night of October 21, 2010, Carrero's mother fell and " injur[ed] her hip and other parts of her body." The following day, Carrero notified Ruiz that she needed three months of family leave to take care of her mother and " request[ed] to activate the family leave already approved" on September 2 " for the time she was going to be absent." Carrero does not say whether she in fact missed work to care for her mother that day, but because she says she " requested her immediate absence from work" after her mother fell, we assume she in fact stopped going to work on October 22. And because ...