Velazquez-Garcia v. Horizon Lines of PR

Filing 920070104

Opinion

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var WPFootnote1 = 'The deposition entered the record as an attachment to\
Velázquez\'s Opposing Statement of Material Facts. It and\
depositions from other employees are the primary evidence pointed\
to by Velázquez in opposing summary judgment. \
'

var WPFootnote2 = 'We assume that this was done in accordance with the then-applicable regulation at 29 C.F.R. 541.118 (2003), now codified at\
29 C.F.R 541.602, allowing for recoupment of military pay from\
salaried employees. See also 38 U.S.C. §§ 4303(2), 4311 (adjusting\
wages and salary of uniformed employee allowed under USERRA). \
Neither party discusses this, and it is not contested.\
'

var WPFootnote3 = 'It\'s not clear from the record whether or the extent to which\
Velázquez cashed checks on company property. However, whether he\
cashed checks on duty or on company property has no effect on our\
analysis.\
'

var WPFootnote4 = 'The Code states, in relevant part:\
    No Associate should gain financially or otherwise\
from a firm or individual with whom the Company does\
business. Situations can arise in which an individual\
unintentionally or unknowingly becomes involved in a\
conflict of interest. Each Associate is responsible for\
ensuring that he or she does not have conflicts of\
interest. The following examples illustrate situations\
or relationships that Associates should avoid:\
(1) involvement in a situation in which an\
Associate uses his/her position for any form of\
private gain, or could lose complete independence,\
objectivity or impartiality with regard to Company\
business;\
(2) solicitation or acceptance by an Associate or\
immediate relative (including immediate relative by\
marriage) of any benefit from any person.\
'

var WPFootnote5 = 'He also brought supplemental claims under Puerto Rico law,\
which are not on appeal here.\
'

var WPFootnote6 = 'VRRA was enacted as § 404 of the Vietnam Era Veterans’\
Readjustment Assistance Act of 1974, Pub. L. No. 93-508, 88 Stat.\
1578. It was originally codified at 38 U.S.C. § 2021 et seq.,\
before being moved to 38 U.S.C. § 4301 et seq. See Pub. L. No.\
102-568, § 506(a), 106 Stat. 4320, 4340 (1992). Those sections\
were then replaced by USERRA. See Pub. L. No. 103-353, 108 Stat.\
3149 (1994).\
'

var WPFootnote7 = 'In the following analysis we assume, without deciding, that\
standards for showing discriminatory animus under other anti-discrimination statutes, such as Title VII, apply equally to\
showings of discriminatory animus under USERRA. See Tarin v.\
County of Los Angeles, 123 F.3d 1259, 1266 n.7 (9th Cir. 1997)\
(noting, in case under predecessor to USERRA, that "Title VII\
analysis has been extended to cases involving discrimination on the\
basis of other protected characteristics").\
'

var WPFootnote8 = 'We note also that the comments at issue in González and the\
other "stray remark" cases cited by Horizon were ambiguous even as\
to their meaning, much less whether they could be taken as evidence\
of discrimination. See González, 304 F.3d at 70 ("it is far from\
clear that the alleged remarks bespeak any age-based animus at\
all"); Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000)\
(remarks about changing company culture of "old, white men" not\
literal, given hiring practices); Shorette v. Rite Aid of Me.,\
Inc., 155 F.3d 8, 13 (1st Cir. 1998) (asking employee how old he\
was and when he planned to retire "demonstrates nothing"). Here,\
the remarks that Velázquez describes in his testimony are clearly\
anti-military. Of course, this is not to say that they are\
necessarily proof of anti-military discriminatory animus at\
Horizon. A jury could find, for example, that the remarks were not\
malicious. But this is distinct from the question of the actual\
meaning of the words being uttered, for which there is no\
ambiguity.\
'

var WPFootnote9 = 'Our concern here is not strictly the lack of notice that the\
check-cashing was in violation of the Code. That issue does not\
arise in the USERRA analysis--USERRA’s concern is discrimination,\
not due process. However, the failure to distribute the Code could\
be considered some evidence of how seriously Horizon took the Code\
and its violations. One would have expected a company to inform\
its employees about offenses that would result in immediate firing\
without warning, particular when the seriousness of such offenses\
is not intuitively obvious.\
'

var WPFootnote10 = 'At oral argument, Horizon’s principal explanation for the\
seriousness of the offense was that it contradicted a company\
policy of paying employees by check, rather than cash. Thus,\
counsel for Horizon argued, a middle manager of the company was\
facilitating something directly contrary to the company’s desires. \
While we can think of reasons why having a manager run a check-cashing business for his supervisees is inappropriate, this\
proffered reason is not convincing. At some point, the stevedores\
must turn their checks into cash, and it’s not clear to us why\
Horizon should desire otherwise. As far as we can tell, the switch\
to checks was merely for the convenience of the company, not\
because of any desire for their employees’ funds to be slightly\
less liquid. \
'

var WPFootnote11 = 'Batista did testify that he had "heard rumors" about the\
check-cashing prior to September 21, 2004.\
'

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