Velez v. Thermo King de PR

Filing 920091016

Opinion

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var WPFootnote1 = 'Of the Second Circuit, sitting by designation\
'

var WPFootnote2 = ' Plaintiff claims that the district court abused its\
discretion in admitting Soto\'s affidavit into the summary judgment\
record because Soto had no personal knowledge of the events that\
were the subject of the investigation and that the affidavit is\
therefore based on inadmissible hearsay, in violation of Fed. R.\
Civ. P. 56(e). This objection misses the mark. Soto\'s affidavit\
about the results of the investigation was not admitted to show the\
truth of those results, but because (according to Thermo King)\
those results explain Thermo King\'s motivation to fire Vélez. As\
we will explain, the relevant question in this case is not whether\
Thermo King was correct that Vélez had violated rules, but whether\
that perceived violation was the reason it fired him. Thus, there\
was no abuse of discretion in admitting the affidavit.\
'

var WPFootnote3 = ' In Gross, the Supreme Court noted that it "has not\
definitively decided whether the evidentiary framework of McDonnell\
Douglas Corp. v. Green, 411 U.S. 792 (1973), utilized in Title VII\
cases is appropriate in the ADEA context." Gross, 129 S.Ct. at\
2349 n.2; see also Reeves v. Sanderson Plumbing Prods., Inc., 530\
U.S. 133, 142 (2000) (assuming arguendo that the McDonnell Douglas\
framework applies to an ADEA claim, and applying it to such a\
claim, "[b]ecause the parties do not dispute the issue."). This\
circuit, however, has long applied the McDonnell Douglas framework\
to ADEA cases. See, e.g., Arroyo-Audifred, 527 F.3d at 218;\
Torrech-Hernandez v. Gen. Elec. Co., 519 F.3d 41, 48 (1st Cir.\
2008); Greenberg v. Union Camp Corp., 48 F.3d 22, 26 (1st Cir.\
1995); Loeb v. Textron, 600 F.2d 1003, 1010 (1st Cir. 1979) ("We\
conclude that the operative principles behind McDonnell Douglas are\
applicable in age cases as in Title VII cases . . . ."). Other\
circuits also apply the framework in the ADEA context. See, e.g.,\
Martino v. MCI Commc\'n. Servs., Inc., No. 08-2405, 2009 WL 2224914\
at *3 (7th Cir. Jul. 28, 2009); Smith v. Medpointe Healthcare,\
Inc., No. 07-1753, 2009 WL 2055104 at *3 (3d Cir. Jul. 16, 2009)\
(unpublished); Oliver v. Federated Mut. Ins. Co., No. 08-5416, 2009\
WL 2031863 at * 1 (6th Cir. Jul. 15, 2009) (unpublished). Until\
told otherwise by the Supreme Court, we shall continue to do so. \
'

var WPFootnote4 = '  As the Supreme Court has explained:\
\
              Under the McDonnell Douglas scheme, establishment of the\
prima facie case in effect creates a presumption that the\
employer unlawfully discriminated against the employee. \
To establish a "presumption" is to say that a finding of\
the predicate fact (here, the prima facie case) produces\
"a required conclusion in the absence of explanation"\
(here, the finding of unlawful discrimination). 1 D.\
Louisell & C. Mueller, Federal Evidence § 67, p. 536\
(1977). Thus, the McDonnell Douglas presumption places\
upon the defendant the burden of producing an explanation\
to rebut the prima facie case -- i.e., the burden of\
producing evidence that the adverse employment actions\
were taken for a legitimate, nondiscriminatory reason.\
\
St. Mary\'s Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993) (some\
internal quotation marks and citations omitted).\
'

var WPFootnote5 = ' Vélez also argues that Thermo King\'s internal investigation\
did not begin in September 2002, as Thermo King asserts, but three\
months earlier in June 2002 (before the disappearance of the\
chipping hammer), and that this timing indicates that the\
investigation was simply a search for a reason to fire Vélez. \
Vélez cites nothing in the record in English to support this\
contention, however, and we therefore do not consider it. \
Furthermore, Vélez suggests that Quiles, Figueroa, and Trinidad\
changed their stories between their first interviews and statements\
taken in preparation for litigation, and that these changes impugn\
the veracity of the investigation and again suggest that the\
investigation was undertaken for the purpose of finding a false\
reason to fire Vélez. But Quiles is the only employee who recanted\
or changed any part of his original statement, and he recanted only\
the part in which he admitted to his own wrongdoing. Vélez does\
not support his suggestion that Figueroa and Trinidad changed their\
stories with any specific references to the record, and we find no\
support for that contention. Furthermore, while Quiles\'s claim\
that he confessed to violating policy because the investigators\
were threatening him, and the apparent failure of the company to\
pursue that claim, raise suspicions about the purpose and conduct\
of the investigation, these suspicions involve too much speculation\
to contribute reasonably to the proposition that the investigation\
was a sham designed to craft an ostensibly legal reason to fire\
Vélez. See Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,\
8 (1st Cir. 1990).\
'

var WPFootnote6 = '  Plaintiff\'s brief and the record on summary judgment tell\
us that Trinidad is 36, Figueroa is 47, and Quiles is 28. Neither\
the brief nor the record, however, reveals when these employees\'\
ages were measured.\
'

var WPFootnote7 = '  In rejecting plaintiff\'s disparate treatment argument, the\
district court wrote that "the fact that other younger employees\
admitted to taking company property and were not fired, does not\
make it mandatory to infer that plaintiff\'s dismissal was\
discriminatory." (Emphasis added.) This statement, and others\
like it in the district court\'s order, reflect a misapprehension of\
the summary judgment standard, where the question is whether there\
is a genuine dispute of material fact, not whether the evidence\
compels a finding in favor of the non-moving party. \
'

var WPFootnote8 = '  Law 100 provides similar protection against age-based\
discrimination as that provided by the ADEA. Under Law 100,\
however, plaintiff\'s burden is lighter: "absent just cause for\
dismissal, the plaintiff\'s prima facie case creates a rebuttable\
presumption of discrimination which shifts to the defendant not\
only the burden of producing the evidence, but also of persuading\
the trier." Menzel v. Western Auto Supply Co., 848 F.2d 327, 331\
(1st Cir. 1988) (quotations and emphasis omitted). To defeat that\
presumption, "the employer must prove, by a preponderance of the\
evidence, that the challenged action was not motivated by a\
discriminatory age animus." Alvarez-Fonseca v. Pepsi Cola of P.R.\
Bottling Co., 152 F.3d 17, 27-28 (1st Cir. 1998). Law 80 provides\
a compensation remedy for individuals terminated without just\
cause. Otero-Burgos v. Inter Am. Univ., 558 F.3d 1, 1 (1st Cir.\
2009). \
'

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