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Pagan v. Holder

October 5, 2010


The opinion of the court was delivered by: Irenas, Senior District Judge


Plaintiff Marisol Pagan ("Plaintiff") initiated this employment discrimination action against the Department of Justice, the Federal Bureau of Prisons and the United States Attorney General, Eric Holder. Plaintiff alleges that she was discriminated against on the basis of her sexual orientation, age, sex and race, and that she was the victim of sexual harassment and retaliation. Pending before the Court is Defendants' Motion for Summary Judgment.


Since 1992, Plaintiff has been employed by the United States Department of Justice, Bureau of Prisons, at the Federal Correctional Institution at Fort Dix, New Jersey ("FCI"). (Defs' 56.1 Stat. ¶2)*fn1 As a recreation specialist in the east compound unit of FCI, Plaintiff can be assigned to either the gymnasium, wellness center or hobby shop. (Id. ¶4) Plaintiff had been assigned to the hobby shop for many years. (Id. ¶7) Following the implementation of a rotation system in 2004, Plaintiff was assigned to the gymnasium and wellness center and then back to the hobby shop in 2009.*fn2 (Id. ¶7, Pl's Resp. ¶4)*fn3 The rotation system was implemented by Brett Conley ("Conley"), supervisor of recreation and Plaintiff's immediate supervisor. (Defs' 56.1 Stat. ¶7c)

Although most of Plaintiff's allegations of discrimination involve actions by Conley, her racial discrimination claim is based on a statement made in 1993 by the FCI warden upon Plaintiff's election as president of the union.*fn4 Plaintiff alleges the warden said to her, "Congratulations, the Puerto Ricans are moving up in the world."*fn5 (Id. ¶17)

Plaintiff alleges that Conley made a number of offensive comments about her sexual orientation. He has allegedly referred to her as a "lesbian" and a "dyke," told inmates to "stay away from that lesbian," and expressed disapproval of her "lifestyle." (Id. ¶14). In addition, at some point prior to 2000, Plaintiff believes Conley placed a bicycle handle on her desk made to resemble a "dildo"*fn6 with the words "eat me" written on it ("bicycle handle incident"). (Id.) Plaintiff believes Conley was responsible for this incident because he appeared grinning at her door shortly after she found it. (Id.)

Plaintiff alleges that Conley also demonstrated age-based animus towards her. (Id. ¶15) According to Plaintiff, after she had a hysterectomy in 2002, Conley told her she was "walking like an old lady." (Id. ¶15) Plaintiff alleges that Conley stated "I'm kidding" at the time he made the comment.*fn7 (Id.)

Plaintiff alleges that she suffered retaliation following her August 7, 2004 request for a transfer due to "continuous years of discriminatory harasssment [sic] and retaliation from Recreation Supervisors." (Pl's Resp. ¶19) In September 2004, Plaintiff was rotated to the gymnasium pursuant to Conley's newly-instituted rotation system. (Defs' 56.1 Stat. ¶7) Plaintiff contends that her rotation out of the hobby shop where she had worked for many years constituted retaliation and further evidence of discrimination.*fn8 (Id. ¶7b) Plaintiff did not like working in the gymnasium because she would often work alone with over one hundred inmates. (Id. ¶25c) However, all recreational specialists routinely worked alone in the gymnasium. (Id.)

Plaintiff's union filed a grievance to protest her rotation from the hobby shop, but the rotation was upheld. (Id.) Despite this, Plaintiff vowed to fight Conley on the rotation. (Id.) After her rotation to the gymnasium, Plaintiff ignored three requests to remove her belongings from the hobby shop. (Id. ¶25b) On October 20, 2004, while removing her belongings, Plaintiff suddenly became ill with chest pains and was transported via ambulance to the hospital. (Id. ¶30) Her doctor diagnosed her with "severe panic attacks and depression...stemming from work related stress."*fn9 (Anger Dec. Ex. G)

On November 2, 2004, Plaintiff filed her first Equal Employment Opportunity Commission (EEOC) complaint.*fn10 (Defs' Rule 56.1 Stat. ¶7a) In it she alleged discrimination based on her status as a "Hispanic Female Lesbian." (Anger Dec. Ex. D) Plaintiff reported a series of incidents of discrimination by Conley primarily regarding his alleged discriminatory intent to remove Plaintiff and her belongings from the hobby shop permanently. (Id.) Notably, Plaintiff did not report in her EEOC complaint the warden's 1993 "moving up in the world" comment, the bicycle handle incident, or Conley's comment that she was "walking like an old lady." (Anger Dec. Ex. D)

On February 28, 2005, Plaintiff was notified by the warden that an accommodation had been made for stress by placing Plaintiff and Conley in different compounds. (Defs' Rule 56.1 Stat. ¶32) Despite this separation, Conley frequently appeared in and wandered through Plaintiff's compound. (Id.)

On September 24, 2007, Plaintiff initiated this action. (Id. ¶11) On January 23, 2009, Plaintiff filed a motion to amend to consolidate two EEOC complaints into her pending action in this Court. (Id. ¶12) This Court granted her motion on August 28, 2009, and Plaintiff filed an Amended Complaint on October 27, 2009. (Id.) Defendants' filed the instant Motion for Summary Judgment on March 12, 2010.


"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the Court is not "to weigh the ...

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