DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Abril-Rivera v. Johnson, 806 F.3d 599 (2015)

Citation
Abril-Rivera v. Johnson, 806 F.3d 599 (2015)
Parent Document
Abril-Rivera v. Johnson, 806 F.3d 599 (2015)
Effective Date
2015-11-17
Original Source
https://www.courtlistener.com/opinion/3155371/abril-rivera-v-johnson/ ↗

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For the foregoing reasons, I would remand this case for trial. 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 the reasons given for placing them in a rotational staffing plan and then terminating 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, ie., the egress pathway and ramp, were only listed as “mid-long term recommendations”; (4) whether Plaintiffs’ nori-discriminatory alterna-fives to the adverse actions would not serve FEMA’s business necessities; and (5) whether FEMA’s justifications were pretextual. For the reasons stated, I dissent..