Vega-Colon v. Wyeth Pharmaceuticals

Filing

OPINION issued by Kermit V. Lipez, Appellate Judge; Jeffrey R. Howard, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [09-1861]

Case: 09-1861 Document: 00116129048 Page: 1

Date Filed: 10/28/2010

Entry ID: 5499179

United States Court of Appeals
For the First Circuit

No. 09-1861
ANGEL A. VEGA-COLÓN,
Plaintiff, Appellant,
v.
WYETH PHARMACEUTICALS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before
Lipez, Howard, and Thompson,
Circuit Judges.

Anibal Escanellas-Rivera and Escanellas & Juan, P.S.C. on
brief for appellant.
María Antongiorgi, Juan Felipe Santos, and McConnell Valdés
LLC on brief for appellee.

October 28, 2010

Case: 09-1861 Document: 00116129048 Page: 2

Date Filed: 10/28/2010

Entry ID: 5499179

THOMPSON, Circuit Judge. Plaintiff-appellant Angel A.
Vega-Colón ("Vega") brought suit against his employer, defendantappellee Wyeth Pharmaceuticals ("Wyeth"). Vega contends that Wyeth
discriminated and retaliated against him based on his military
service in violation of the Uniformed Services Employment and
Reemployment Rights Act of 1994 ("USERRA") and Puerto Rico law.
See 38 U.S.C. §§ 4301-4335; 29 LPRA §§ 194-194b.

The district

court granted summary judgment in favor of Wyeth, and Vega timely
appealed.

After careful consideration, we reverse in part and

affirm in part.
I. Background
We recite the facts in the light most favorable to Vega,
the non-moving party, drawing all reasonable inferences in his
favor.

See Bukuras v. Mueller Group, LLC, 592 F.3d 255, 261 (1st

Cir. 2010).

The general facts pertinent to Vega's allegations are

set forth below, and more detailed facts are provided when we
analyze Vega's individual claims.
Wyeth is a pharmaceutical company located in Puerto Rico.
In

2002,

Vega

supervisor."
Reserve.

was

hired

by

Wyeth

as

a

"packaging

equipment

Vega was also a member of the United States Army

During his employment at Wyeth, Vega alternated between

active and inactive status with the Army.

Specifically, from 2002

to 2004 Vega was active and took various leaves from Wyeth for
military training.

From 2004 to February 2007, Vega went on

-2-

Case: 09-1861 Document: 00116129048 Page: 3

Date Filed: 10/28/2010

Entry ID: 5499179

inactive status and did not leave for any military training.

In

February 2007, Vega returned to active status and was promoted to
captain with the condition that he join a military unit and
participate in military exercises.

Vega's Army unit was mobilized

in November 2007 and he has been on military leave since then.
In April 2006, the position of "reliability engineer"
became available at Wyeth and Vega applied.

Vega, along with

several other internal candidates, was not hired; an outside
candidate was hired instead.
In

job

performance

evaluation from Wyeth for his 2006 employment year.

Per policy,

Wyeth

February

provided

all

2007,

of

its

Vega

received

employees

with

a

an

annual

written

evaluation, which included a rating of between one and five with
five being the most desirable.

For the years 2003 through 2005,

Vega was rated a three or "solid performer."
Vega's

rating

improvement."

declined

to

a

two,

which

For the year 2006,
signaled

"needs

Vega disagreed with his evaluation and requested

that Wyeth initiate an investigation, which it did.
In April 2007, Vega filed a discrimination complaint with
the United States Department of Labor, Veterans' Employment and
Training Service ("VETS"), based on Wyeth's failure to hire him for
the reliability engineer position.

Finding no merit to Vega's

accusations, VETS denied the complaint; however, the complaint was

-3-

Case: 09-1861 Document: 00116129048 Page: 4

Date Filed: 10/28/2010

Entry ID: 5499179

re-instituted at a later point when Vega presented additional
evidence. Vega eventually voluntarily withdrew the VETS complaint.
On May 7, 2007, Vega met with Wyeth's employee relations
director and site director, though what was discussed at this
meeting is disputed.1

According to Wyeth, the parties discussed

the results of the investigation it conducted into Vega's 2006
performance

evaluation,

in

particular

revealed no discriminatory acts.
took place.

that

the

investigation

Vega denies such a conversation

Also according to Wyeth, at this meeting Vega made a

threatening comment to the effect that Wyeth's site director made
it easy for one to understand why massacres like the one at
Virginia Tech take place.2

Vega has no memory of such a comment.

It is undisputed that shortly after this meeting Wyeth
restricted Vega's access to its plant.

Vega, who was out on leave

at the time, learned of this restriction when he attempted to enter
the plant to drop off his military orders.

Vega was stopped and

informed by a security guard that he could not enter because
Wyeth's computer database listed him as terminated. Wyeth contends
that Vega was not in fact fired but concedes his access was

1

As will be discussed more fully, this factual dispute is not
material.
2

The reference is to the tragic April 16, 2007 shooting on the
Virginia Polytechnic Institute and State University campus in
Blacksburg, Virginia where thirty-two members of the faculty and
student body were killed by a lone gunman, while multiple others
were injured.
-4-

Case: 09-1861 Document: 00116129048 Page: 5

Date Filed: 10/28/2010

Entry ID: 5499179

restricted because of security concerns over his comment about the
Virginia Tech massacre. Notably, Vega never received a termination
letter and he continued to receive a salary and benefits.
At some point, Vega returned from leave with his access
to the plant restored.

Then in July 2007, Vega was placed on a

"performance improvement plan" ("PIP").

Per Wyeth policy, all

employees who received a performance evaluation rating of two or
lower were placed on a PIP.

The PIP established objectives for

Vega to complete within ninety days, which he timely completed.
That November, Vega was informed that although he had completed the
PIP's objectives, the PIP would be extended for other reasons until
he returned from military service.

Vega's Army unit was mobilized

that month.3
Around the same time, Vega instituted the underlying
action alleging past and continuing discriminatory and retaliatory
conduct. Particularly, he claims Wyeth took the following improper
actions: (1) failing to hire him for the reliability engineer
position; (2) awarding him a low performance rating; (3) extending
the PIP; (4) discharging and then reinstating him; (5) allowing a
hostile work environment; and (6) retaliating against him for
filing the VETS complaint. Wyeth moved for summary judgment on all

3

Vega was scheduled to return to work in February 2010.
Because the lower court proceedings took place prior to this time,
it is uncertain whether Vega has returned from military leave and
re-assumed his position at Wyeth.
-5-

Case: 09-1861 Document: 00116129048 Page: 6

Date Filed: 10/28/2010

Entry ID: 5499179

of these claims, and shortly before trial its motion was granted.
Final

judgment

was

entered

in

Wyeth's

favor

and

Vega

timely

appealed.
II. Standard of Review
This court reviews a district court's grant of summary
judgement de novo. Pomales v. Celulares Telefonica, Inc., 447 F.3d
79, 83 (1st Cir. 2006).

If there is no genuine issue of material

fact and the movant is entitled to judgment as a matter of law, we
affirm.

Id.; see also Fed. R. Civ. P. 56(c)(2). "In order to

overcome a motion for summary judgment, the non-moving party must
put forth specific facts to support the conclusion that a triable
issue subsists."

Martínez-Rodríguez v. Guevara, 597 F.3d 414, 419

(1st Cir. 2010).

On each issue on which the non-moving party has

the burden of proof, "that party must present definite, competent
evidence to rebut the motion." Id. (internal citation omitted).
"Summary judgment for the defendant[] is appropriate when the
evidence is so one-sided that no reasonable person could find in
favor of the plaintiff." Kosereis v. Rhode Island, 331 F.3d 207,
211 (1st Cir. 2003).
III. Discussion
A. USERRA
The purpose of USERRA is to encourage non-career military
service, minimize disruption based on this service, and prevent

-6-

Case: 09-1861 Document: 00116129048 Page: 7

Date Filed: 10/28/2010

Entry ID: 5499179

discrimination against service members. 38 U.S.C. § 4301. To this
end, USERRA provides that:
A person who is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an
obligation to perform service in a uniformed service shall
not be denied initial employment, reemployment, retention
in employment, promotion, or any benefit of employment by
an employer on the basis of that membership, application
for membership, performance of service, application for
service, or obligation.
38 U.S.C. § 4311(a).

It further provides that an employer "may not

discriminate in employment against or take any adverse employment
action against any person because such person . . . has taken an
action to enforce a protection afforded" under USERRA.
§ 4311(b).

38 U.S.C.

The term "uniformed service" means in pertinent part

the Armed Forces when engaged in active duty for training.

38

U.S.C. § 4303(16).
Vega

contends

that

the

alleged

discriminatory

and

retaliatory actions taken by Wyeth were the result of his decision
to return to active duty with the Army, which he ultimately did in
February 2007.

Wyeth urges that because Vega did not return to

active duty until February 2007, he was not protected under USERRA
until this date.

Vega counters that the applicable date was

February 2006, which is the month he was selected for the position
of Army captain with the condition that he return to active status
and also the month he informed one of his supervisors that he would
be returning to active status.
both parties' contentions.

The district court disagreed with

It found that because USERRA protects
-7-

Case: 09-1861 Document: 00116129048 Page: 8

Date Filed: 10/28/2010

Entry ID: 5499179

individuals who apply for active duty; the applicable date of
coverage was when Vega informed his supervisors at Wyeth that he
intended to apply to join an active military unit.

Based on this

reasoning, the court found November 2006 to be the applicable date.
The initial inquiry for this court is what protected
status and/or conduct served as the basis for Wyeth's allegedly
improper actions.

Vega claims that Wyeth's actions stemmed from

his decision to apply for active duty and his resulting military
service.

Thus Vega's application to perform service and his

subsequent membership in a uniformed service are the respective
conduct and status at issue.

See 38 U.S.C. § 4311(a).

The next question is when did the protected conduct and
status occur.

It is undisputed that Vega returned to active duty

in February 2007 and thus became a member of a "uniformed service"
for purposes of USERRA.

See 38 U.S.C. § 4303(16).

The more

difficult question is when did Vega "appl[y] to perform" active
duty service for purposes of USERRA.
carefully,

we

find

that

Vega's

Id.

Construing the record

notification

to

his

Wyeth

supervisors that he was returning to active duty constituted such
an application.

While informing a supervisor of one's intent to

return to service is not strictly speaking an application for
service; it is only logical that USERRA coverage would be triggered
at the point in time in which an employer has information about an
employee on which it could base discriminatory treatment.

-8-

Here

Case: 09-1861 Document: 00116129048 Page: 9

Date Filed: 10/28/2010

Entry ID: 5499179

Vega expressed a definite intent to return to active duty in the
near future.

To deny an employee who has expressed such a definite

intention the protection of USERRA until his literal application
for service is signed and delivered would be contrary to the stated
purposes of USERRA.

See 38 U.S.C. § 4301.

This conclusion is

further supported by the principle that USERRA should be broadly
construed in favor of military service members as its purpose is to
protect such members. See Hill v. Michelin North America, Inc., 252
F.3d 307, 312-13 (4th Cir. 2001) (citing Coffy v. Republic Steel
Corp., 447 U.S. 191, 196 (1980)(construing USERRA's predecessor
liberally in favor of military members)); see also Gordon v. Wawa,
Inc., 388 F.3d 78, 81 (3rd Cir. 2004).
Thus, the final question is when did Vega inform his
supervisors that he was returning to active duty.

As noted above,

the district court found this date to be November 2006.

We

disagree. In November 2006, Vega did inform two of his supervisors
that

he

was

accepted

performing drills.

into

a

military

unit

and

would

start

However, Vega testified at deposition that

earlier, in February 2006, shortly after receiving his invitation
from the Army to become a captain, he informed his supervisor
Johnny Figueroa ("Figueroa") that he was returning to active status
and there was a high possibility he would be mobilized.
not disputed this statement.

Wyeth has

Therefore, viewing the evidence in

the light most favorable to Vega, February 2006 is the date on

-9-

Case: 09-1861 Document: 00116129048 Page: 10

Date Filed: 10/28/2010

Entry ID: 5499179

which he informed his supervisors of a definite intent to return to
active duty, thus triggering USERRA.4

Because Vega's April 2006

application for the reliability engineer position was the earliest
action related to his claims, any alleged improper conduct by Wyeth
necessarily took place after USERRA was triggered.
Now we turn to the merits, particularly whether Vega's
application for service and his resulting military service formed
the basis for any of Wyeth's allegedly improper actions.

In

assessing a USERRA claim, the burden is on Vega to make an initial
showing that his military status "was at least a motivating or
substantial factor in [Wyeth's] action."

Velázquez-García v.

Horizon Lines of Puerto Rico, Inc., 473 F.3d 11, 17 (1st Cir. 2007)
(internal citation omitted); see also 38 U.S.C. § 4311(c)(1)(c)(2).

If Vega can make this showing, the burden then shifts to

Wyeth to "prove, by a preponderance of the evidence, that the
action

would

have

been

taken

despite

the

protected

status."

Velázquez-García, 473 F.3d at 17. We address each of Vega's claims
in turn.

4

Later in his deposition Vega contradicted himself by stating
that he informed Figueroa of his promotion in April or May 2006 and
the complaint contains a similar allegation. Before this court,
Vega claims that the February date is in fact correct. Construing
the evidence in Vega's favor, we find the February date to be the
applicable date.
Notably, because the contradictory statements
were made in the complaint and Vega's deposition, this is
distinguishable from instances where a party attempts to defeat
summary judgment with an affidavit that contradicts previous
deposition testimony without explanation. See, e.g., Colantuoni v.
Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994).
-10-

Case: 09-1861 Document: 00116129048 Page: 11

Date Filed: 10/28/2010

Entry ID: 5499179

B. Reliability Engineer Position
Vega avers that Wyeth's failure to hire him for the
reliability engineer position violated USERRA. USERRA prohibits an
employer from denying an employee a "promotion" based on the
protected factors relating to military service.
4311(a).

Though

Wyeth

claims

that

the

38 U.S.C. §

reliability

engineer

position did not constitute a direct promotion, it concedes that
the position carried higher pay, bonuses, and increased benefits -typical indicia of a promotion.

Construing the statute broadly in

Vega's favor, we find the reliability engineer position was a
promotion for purposes of USERRA.
Regarding Wyeth's motives for not hiring Vega for the
position

and

instead

hiring

outside

candidate

("Ramos"), Vega presented little evidence.

Gloryvee

Ramos

While Vega had some

knowledge about the position's requirements, he did not know who
else applied for the position, those persons' qualifications, or
why Wyeth recruited Ramos.

What Vega did know was that his

supervisors, Figueroa and Reinaldo Quiñones ("Quiñones"), were part
of a panel that participated in the decision to hire Ramos.
further

alleges

that

Figueroa

informed

him

that

he

did

Vega
not

recommend Ramos because she was weak in the maintenance area.5

5

The district court found that Vega's attempt to introduce
Figueroa's statement failed; however, it did not state on what
grounds it based this finding. We see no reason why the statement
would not be admissible.
To the extent the district court
construed it as hearsay, we disagree. Figueroa was an employee of
-11-

Case: 09-1861 Document: 00116129048 Page: 12

Date Filed: 10/28/2010

Entry ID: 5499179

Additionally, Vega expressed via affidavit a belief that he was
better qualified than Ramos.

Wyeth, on the other hand, put forth

affidavit evidence from Figueroa and Quiñones that Ramos was
selected for the position because she was the strongest candidate.6
Figueroa

also

stated,

contrary

to

Vega's

assertion,

that

he

personally recommended Ramos and agreed with the decision to hire
her.
The contradictory evidence does raise an issue as to
whether Figueroa in fact recommended Ramos for the position.
Nonetheless,

the

inner

workings

of

the

hiring

panel

are

not

relevant, so long as Vega's military status was not a motivating or
substantial factor in Wyeth's decision not to hire him.
Velázquez-García, 473 F.3d at 17.

See

Vega has put forth no evidence

Wyeth involved in the hiring process and thus his statement is an
admission by a party-opponent and therefore an exception to the
hearsay doctrine. See Fed. R. Evid. 801(d)(2) (A statement is not
hearsay if it is offered against a party and is "a statement by the
party's agent or servant concerning a matter within the scope of
the agency or employment, made during the existence of the
relationship.").
6

Vega attempted to rebut Quiñones by submitting an affidavit
in which Vega claimed that he previously testified that Quiñones
said Vega was not hired for the position because he was not
reliable due to his military service. Vega did not cite to any
portion of his deposition testimony and this court, along with the
district court, could locate no such testimony. Therefore, like
the district court, we disregard Vega's allegation.
See Int'l
Ass'n of Machinists and Aerospace Workers v. Winship Green Nursing
Center, 103 F.3d 196, 206 (1st Cir. 1996) ("The summary judgment
paradigm requires us to draw and respect only reasonable
inferences; we need not infer that which is farfetched or
fantastic.").
-12-

Case: 09-1861 Document: 00116129048 Page: 13

Date Filed: 10/28/2010

Entry ID: 5499179

that it was, essentially relying only on his personal belief that
he was more qualified.

Vega's subjective belief is insufficient.

See Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 15 (1st Cir.
1998) (An employee's "personal opinion regarding his own job
qualifications is not sufficiently probative on the issue of
pretext"

in

an

employment

discrimination

action.).

Vega

is

required to "show evidence of discrimination other than the fact of
non-selection and membership in the protected class." Sheehan v.
Department of Navy, 240 F.3d 1009, 1015 (Fed. Cir. 2001).
not done so.

He has

As Vega has not satisfied his burden, Wyeth is

entitled to summary judgment on this issue.
C. Low Performance Rating/Performance Improvement Plan
Vega next contends that his level two 2006 performance
rating, which resulted in his being placed on a PIP, was given in
violation of USERRA.

USERRA prohibits an employer from improperly

denying "any benefit of employment."

38 U.S.C. §4311(a).

A

"benefit of employment" is defined to include "any advantage . . .
that accrues by reason of an employment contract or agreement or an
employer policy, plan, or practice."
Here

Wyeth's

employee

38 U.S.C. § 4303(2).

relations

director

put

forth

affidavit evidence that employees who received a low performance
rating, and were consequently placed on a PIP, were not eligible to
apply to other internal positions until the PIP was completed.
Further, the PIP itself stated that such employees were subject to

-13-

Case: 09-1861 Document: 00116129048 Page: 14

Date Filed: 10/28/2010

Entry ID: 5499179

disciplinary action and termination for failure to complete the
PIP.

Construing USERRA's definition of "benefit of employment"

broadly, we find that the ability to seek additional employment
within the company, and the freedom from the threat of discipline
or termination based on failure to complete the PIP, do constitute
"advantage[s]."

Id.

Thus, Vega has raised an actionable claim

with respect to this issue.
However, Vega must also make the requisite showing under
USERRA that his military status was a motivating factor in Wyeth's
decision to award the low performance rating.
4311(c)(1).

See 38 U.S.C. §

In support of his claim, Vega contends that: (1) he

was never subject to any disciplinary action before receiving the
low rating; (2) his rating was higher the previous year; and (3) he
had recently informed his supervisor, Gilberto Inserni ("Inserni"),
who issued the rating, about his military leave.

Thus, Vega avers

his military service was a motivating factor in the issuance of the
low rating. We find these arguments unpersuasive. First, Vega has
presented no evidence that a disciplinary action must precede a low
performance rating.

Nor has he demonstrated that employee ratings

cannot change from year to year as reflective of a change in that
employee's work performance. Finally, though the proximity in time
between Vega informing Inserni of his leave and his receipt of the
low

rating

sufficient.

is

a

factor

for

consideration,

it

alone

is

not

See Velázquez-García, 473 F.3d at 19 (finding that

-14-

Case: 09-1861 Document: 00116129048 Page: 15

Date Filed: 10/28/2010

Entry ID: 5499179

proximity in time between military service and an adverse action is
not an "exclusive test").
Assuming arguendo that temporal proximity is sufficient
to satisfy Vega's burden, Wyeth put forth evidence that it would
have given Vega a low rating and implemented a PIP regardless of
his military membership.
Vega's

various

In particular, the PIP itself documented

employee

performance

issues,

including

his

argumentative behavior, failure to address equipment reliability
issues, and failure to timely address assignments.

Vega did not

specifically rebut these findings, but generally disagreed with his
review and believed himself an excellent employee.

Moreover,

responding to Vega's allegations of discriminatory treatment and
request for an investigation into his low rating, Wyeth's human
resources

director

and

associate

director

each

conducted

an

investigation, which included multiple meetings with Vega and the
gathering of information.

Wyeth concluded that the rating should

stand and that it was not the result of discriminatory acts.
Other than proximity in time, Vega has not come forth
with any evidence that his military status was a motivating factor
in Wyeth awarding him the low performance rating and implementing
the PIP.

See 38 U.S.C. § 4311(c)(1).

Furthermore, Wyeth has

sufficiently established that it would have taken such action
regardless of Vega's military membership.

Id.

In light of the

above, Wyeth is entitled to summary judgment on this claim.

-15-

Case: 09-1861 Document: 00116129048 Page: 16

Date Filed: 10/28/2010

Entry ID: 5499179

D. Performance Improvement Plan Extension
Even if the PIP itself can be deemed valid, Vega claims
that Wyeth's extension of the PIP was an improper discriminatory
action.

For the same reasons the low performance rating and

implementation

of

the

PIP

could

constitute

a

denial

of

an

employment benefit under USERRA; so too could the PIP's extension.
See 38 U.S.C. § 4303(2) (defining a "benefit of employment" as "any
advantage . . . that accrues by reason of an employment contract or
agreement or an employer policy, plan, or practice").

Vega has

therefore raised a cognizable USERRA claim and we turn to the
merits of his argument.
In

our

review

of

the

record,

established as to the PIP's extension.

the

following

was

The PIP itself stated that

although Vega completed the set goals, it was being extended
because of: (1) an email Vega sent in which he described a
supervisor in a disrespectful manner; (2) a letter Vega improperly
solicited his co-workers to sign attesting to his job performance;
and (3) Vega's authorized leave.

The PIP was to remain open for at

least three months after Vega returned from leave so that positive
behavior and work habits could be verified.

Additionally, Vega

testified that one of his supervisors, Andrew Espejo ("Espejo"),
informed him that he did not pass the PIP because his performance
was affected by his military service.

-16-

Case: 09-1861 Document: 00116129048 Page: 17

Date Filed: 10/28/2010

Entry ID: 5499179

Based on the above facts, the district court found that
Vega satisfied the first prong under USERRA, particularly his
burden of demonstrating that his military service was a motivating
factor in Wyeth's actions.7

See 38 U.S.C. § 4311(c)(1).

We agree.

Both Espejo's comments, and the language contained in the PIP
attributing the extension to Vega's leave, satisfied his burden on
this issue.
The district court then moved to the second prong -Wyeth's burden to demonstrate that it would have extended the PIP
in the absence of Vega's military status.

Id.

The court found

that Wyeth satisfied this burden and was therefore entitled to
summary judgment.8
Vega's

In finding for Wyeth, the court relied on

disrespectful

circulated.

email

and

the

inappropriate

letter

he

Additionally, the court believed that Wyeth was

7

Before deciding the merits, the district court noted that
although it would not do so, it could dismiss this claim because
Vega was seeking only monetary damages and the sole remedy would be
reinstatement of his pre-PIP status. We disagree. Were Vega able
to prove that he lost wages in the form of a salary increase or
benefits based on the PIP's extension, he could potentially recover
monetary damages. See 38 U.S.C. § 4323(d)(1)(B) ("The court may
require the employer to compensate the person for any loss of wages
or benefits suffered by reason of such employer's failure to comply
with the provisions of this chapter.").
8

The magistrate judge who issued the report and recommendation
in this matter found that Wyeth had not satisfied its burden on
this issue, and recommended that summary judgment be denied on the
PIP extension claim.
The judge who issued the final decision,
however, disagreed.
-17-

Case: 09-1861 Document: 00116129048 Page: 18

Date Filed: 10/28/2010

Entry ID: 5499179

generally entitled to extend a PIP when an employee was on leave
during a portion of it.

This reasoning is not persuasive.

First, while the email and letter may be sufficient
grounds on which Wyeth could base the PIP's extension, the inquiry
is not whether Wyeth was entitled to extend the PIP, but whether
such "action would have been taken in the absence of [Vega's
military]

membership."

38

U.S.C.

§

4311(c)(1);

see,

e.g.,

Velázquez-García, 473 F.3d at 20 (holding that with respect to
employee termination, "[t]he issue under USERRA is not whether an
employer is ‘entitled' to dismiss an employee for a particular
reason, but whether it would have done so if the employee were not
in the military").

Specifically, Wyeth must "demonstrate, by a

preponderance of the evidence, that it would indeed have" extended
the PIP regardless of Vega's military service.

Velázquez-García,

473 F.3d at 20.
Here

the

PIP

itself

stated

that

Vega

successfully

completed its objectives prior to Wyeth's extending it.

Further,

Espejo purportedly remarked that Vega did not pass the PIP due to
his

military

assertion.

service.

Notably,

Wyeth

has

not

rebutted

this

Given the PIP's language and the testimony concerning

Espejo's comment, there "is sufficient doubt on this issue to make
it a jury question."

Id.; see also Sensing v. Outback Steakhouse

of Florida, LLC, 575 F.3d 145, 153 (1st Cir. 2009) (quoting CaleroCerezo v. U.S. Dept. of Justice, 355 F.3d 6, 19 (1st Cir. 2004))

-18-

Case: 09-1861 Document: 00116129048 Page: 19

Date Filed: 10/28/2010

Entry ID: 5499179

(In instances where "the record contains inconsistencies 'that
favor in some lights the defendant[] and in others the plaintiff,'
as

long

as

the

'plaintiff's

evidence

is

both

cognizable

and

sufficiently strong to support a verdict in [his] favor, the
factfinder must be allowed to determine which version of the facts
is most compelling.'")
Further, the district court's finding that Wyeth would
have extended the PIP for any employee on leave -- whether it be
military leave, sick leave, or otherwise -- is not relevant.

The

fact that Wyeth may have treated other absences similarly does not
overcome the fact that it may have based its treatment of Vega, at
least in part, on his military absences.

See Erickson v. U.S.

Postal Service, 571 F.3d 1364, 1368 (Fed. Cir. 2009) ("An employer
cannot escape liability under USERRA by claiming that it was merely
discriminating against an employee on the basis of his absence when
that absence was for military service.").
We hold that the evidence is sufficiently strong that a
reasonable jury could find in Vega's favor; therefore, the district
court erred in granting summary judgment on this issue.
E. Facility Access Denial
Next Vega contends that Wyeth wrongfully discharged and
then reinstated him while he was away on military leave.

This

claim is based on the incident in which Vega attempted to enter
Wyeth's plant but was turned away by a security guard.

-19-

Wyeth

Case: 09-1861 Document: 00116129048 Page: 20

Date Filed: 10/28/2010

Entry ID: 5499179

admits that it restricted Vega's access over security concerns but
denies that it terminated Vega.

We find that Vega has failed to

raise a cognizable claim with respect to this issue.
Though there is some factual dispute surrounding this
claim, such dispute is immaterial.

Specifically, it is irrelevant

whether Vega's access to the plant was restricted in response to an
alleged comment about the Virginia Tech massacre or not.

"To be

considered material, a disputed fact must have the potential to
affect the outcome of the suit under the governing law." Rochester
Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir. 2002)
(internal citation omitted).

In this case, why Vega's access was

restricted does not affect the outcome of this suit.

What is

relevant is this -- the evidence conclusively demonstrated that
while Vega's access to the plant was restricted on that one
occasion, he was not terminated from employment.

Most notably, he

continued to receive a salary and benefits, and never received a
termination letter.

For this court to conclude that Vega was

terminated solely based on a comment by a security guard, which may
have been incorrect or misconstrued, would require us to draw an
improbable inference.

"Although employment discrimination cases

deal with elusive concepts such as motive or intent," summary
judgment is compelled "if the non-moving party rests his case
merely upon conclusory allegations, improbable inferences, and
unsupported speculation." Mariani-Colón v. Dep't of Homeland Sec.,

-20-

Case: 09-1861 Document: 00116129048 Page: 21

Date Filed: 10/28/2010

Entry ID: 5499179

511 F.3d 216, 221 (1st Cir. 2007) (internal citation omitted).
Thus Vega was not denied "retention in employment" pursuant to
USERRA.

See 38 U.S.C. § 4311(a).
Further, Vega's restricted access to the plant cannot be

deemed a denial of a "benefit of employment" because he was on
leave at the time and had no need to access the plant.
U.S.C. §§ 4303(2), 4311(a).
employment

action"

in

See 38

Nor can it constitute an "adverse

retaliation

for

Vega's

VETS

complaint,

because the incident took place prior to Wyeth's learning about the
complaint.

See 38 U.S.C. § 4311(b).

As Vega has failed to set

forth an actionable claim based on this one incidence of restricted
access, Wyeth is entitled to summary judgment.
F. Hostile Work Environment
Vega alleges that dating back to October 2006, he was
subjected

to

comments

and

name

calling

by

various

Wyeth

supervisors, related to his military service. Specifically, on one
occasion Inserni asked Vega whether his military training was
similar to the American military movie "Rambo."

Additionally,

Quiñones

in

expressed

disagreement

with

the

wars

Iraq

and

Afghanistan, a sentiment which Vega admittedly heard often and in
fact agreed with.

Quiñones also once questioned Vega about his

status with the military, an inquiry Vega admitted was reasonable
for a supervisor to make. Further, Inserni and Quiñones repeatedly
referred to Vega as "soldier", "little soldier", "sergeant", and

-21-

Case: 09-1861 Document: 00116129048 Page: 22

"Rolandito."

Date Filed: 10/28/2010

Entry ID: 5499179

Another supervisor, Antonio Otano, also referred to

Vega as "Rolandito."

This moniker, referring to a famous missing

boy in Puerto Rico, was taken by Vega to be a negative commentary
on his absences for military service. Vega concedes that this
suspicion was not based on anything he was told and in fact he
often took leave for reasons other than military service.

From

Vega's vantage he found the above comments discriminatory and
derogatory and he sought psychiatric help, in part, he says, based
on the work environment at Wyeth.
Neither the Supreme Court nor any court of appeals has
decided whether a hostile work environment claim is cognizable
under USERRA.9

For purposes of this decision we assume, without

deciding, that it is.

In order to establish a hostile work

environment,

show

Vega

"must

harassing

behavior

'sufficiently

severe or pervasive to alter the conditions of [his] employment.'"
Pennsylvania State Police v. Suders, 542 U.S. 129, 133 (2004)
(quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986)).

He must also establish that "the offending behavior . .

. 'create[s] an abusive working environment.'" Id. at 146-147
(internal

citation

omitted).

The

9

harassment

must

be

both

The issue has only arisen twice, before the Eleventh and
Ninth Circuit Courts of Appeals respectively, but both courts
declined to decide the issue.
See Dees v. Hyundai Motor Mfg.
Alabama, LLC, 368 Fed. Appx. 49, 53 (11th Cir. 2010) (unpublished);
Church v. City of Reno, No. 97-17097, 1999 WL 65205, at *1 (9th
Cir. Feb 9, 1999) (unpublished).
-22-

Case: 09-1861 Document: 00116129048 Page: 23

Date Filed: 10/28/2010

objectively and subjectively offensive.

Entry ID: 5499179

See Faragher v. City of

Boca Raton, 524 U.S. 775, 787 (1998); Roman v. Potter, 604 F.3d 34,
42 (1st Cir. 2010) (addressing a hostile work environment claim
under Title VII).
Here there is no basis for a jury to conclude that Vega
was

subject

to

a

hostile

work

environment.

In

making

this

determination, we examine "'all the circumstances,' including 'the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance;

and

whether

it

employee's work performance.'"

unreasonably

interferes

with

an

National R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 116 (2002) (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993)).

Here Vega alleges a very

limited number of comments, along with more frequent name calling.
Although the evidence demonstrates that the comments and name
calling may have been subjectively offensive to Vega, in this
court's opinion, neither amounted to objectively offensive conduct
as

the

behavior

humiliating.

was

not

severe,

physically

threatening,

or

Moreover, Vega has failed to set forth sufficient

evidence from which a jury could conclude that the complained of
conduct interfered with his work performance to an extent that is
unreasonable or that altered the conditions of his employment.
We note that because the inquiry into the existence of a
hostile work environment is fact specific, "the determination is

-23-

Case: 09-1861 Document: 00116129048 Page: 24

Date Filed: 10/28/2010

often reserved for a fact finder."
Nonetheless,

"summary

judgment

is

Entry ID: 5499179

Pomales, 447 F.3d at 83.
an

appropriate

vehicle

for

'polic[ing] the baseline for hostile work environment claims.'"
Id. (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th
Cir. 1999) (en banc))(alteration in original).

In the instant

matter, Vega has failed to establish even a baseline claim of an
"abusive working environment." Pennsylvania State Police, 542 U.S.
at 147 (internal quotation marks and citation omitted).
reasonable

fact

finder

could

find

in

Vega's

favor,

As no

Wyeth

is

entitled to summary judgment.
G. VETS Complaint
Vega contends that in response to the complaint he filed
with

VETS,

Wyeth

discriminated

against

him

and

took

adverse

employment action in violation of USERRA. See 38 U.S.C. § 4311(b).
This court has defined an adverse employment action under Title VII
as "one that 'affect[s] employment or alter[s] the conditions of
the workplace.'"

Morales-Vallanes v. Potter, 605 F.3d 27, 35 (1st

Cir. 2010)(quoting Burlington Northern & Santa Fe Ry. Co. v. White,
548 U.S. 53, 61-62 (2006)) (alteration in original).

The Seventh

Circuit has applied a similar definition in a USERRA action.

See

Crews v. City of Mt. Vernon, 567 F.3d 860, 869 (7th Cir. 2009)("An
adverse employment action is one that significantly alters the
terms and conditions of the employee's job.") (internal citation
omitted).

In the context of Title VII, the Supreme Court has held

-24-

Case: 09-1861 Document: 00116129048 Page: 25

Date Filed: 10/28/2010

Entry ID: 5499179

that the "term 'discriminate against' refers to distinctions or
differences

in

treatment

that

injure

protected

individuals."

Burlington Northern & Santa Fe Ry. Co., 548 U.S. at 59.
Vega filed a VETS complaint in March 2007.

However,

Wyeth presented evidence, including an affidavit from its human
resources director and the entire VETS file, which established that
it did not become aware of Vega's VETS complaint until September
2007.

Vega has offered no contradictory evidence.

Thus any

retaliatory actions necessarily had to take place after this date.
As such, the only actionable events alleged by Vega based on his
theory of retaliation are: (1) extension of the PIP; (2) his not
being awarded salary increases in 2008 and 2009; and (3) continued
name calling.
As discussed above, Vega put forth evidence on which a
jury could determine that the PIP was improperly extended due to
his military service; however, he has presented no evidence that it
was

extended

in

response

to

his

VETS

complaint.

He

has

significantly failed to demonstrate whether the person or persons
involved in the decision to extend the PIP were even aware of the
complaint.
Similarly, with regards to potential salary increases in
2008 and 2009, Vega has presented no evidence of Wyeth's process or
criteria for evaluating and awarding raises, or evidence of the
persons responsible for making such salary determinations.

-25-

In the

Case: 09-1861 Document: 00116129048 Page: 26

Date Filed: 10/28/2010

Entry ID: 5499179

absence of such evidence, this court cannot simply assume that Vega
was entitled to a salary increase in 2008 and 2009.

Nor can we

assume that the persons making these compensation decisions were
aware of the VETS complaint.

As a result, Vega has not met his

burden of demonstrating that his filing of the VETS complaint was
a motivating factor in Wyeth's extension of the PIP or decision not
to increase his salary, or that it generated any adverse employment
action against him.
With respect to the name calling, we question whether
such

conduct

constituted

an

adverse

employment

action

or

discrimination in light of the meaning that courts have applied to
these terms.

See Morales-Vallanes, 605 F.3d at 35 (An adverse

employment action "'affect[s] employment or alter[s] the conditions
of the workplace.'"); Burlington Northern & Santa Fe Ry. Co., 548
U.S. at 59 ("'[D]iscriminate against' refers to distinction or
differences

in

treatment

that

injure

protected

individuals.")

However, assuming that such comments are actionable, Vega has also
failed to satisfy his burden on this issue.
First, the name calling took place both before and after
Vega filed the VETS complaint, with no escalation alleged after
September 2007.

This is a fatal flaw in Vega's argument.

See,

e.g., Frazier v. Fairhaven School Committee, 276 F.3d 52, 67 (1st
Cir. 2002).

Further, we are persuaded by the Seventh Circuit's

holding that with respect to USERRA retaliation actions, "negative

-26-

Case: 09-1861 Document: 00116129048 Page: 27

Date Filed: 10/28/2010

Entry ID: 5499179

employer comments will support a retaliation claim only if they are
'severe and pervasive.'" Crews, 567 F.3d at 870 (internal citation
omitted).

Objectively viewed, the name calling directed at Vega

was not, in our opinion, severe.
establish

that

Wyeth

retaliated

Therefore he has failed to
against

him

in

violation

of

USERRA.10 Wyeth is thus entitled to summary judgment on this claim.
IV. Conclusion
For the above reasons, we affirm in part, reverse in
part, and remand for proceedings consistent with this opinion.
Each party to bear its own costs.

10

Vega claims that Wyeth's alleged retaliation in response to
the VETS complaint not only violated USERRA but also the Puerto
Rico Whistle-Blower Act ("Law 115").
See 29 LPRA §§ 194-194b.
Vega's burden under Law 115 is more stringent then under USERRA, as
the
former
requires
an
employee
to
establish
not
only
discrimination, but that the employer's non-discriminatory reason
is pretext. See 29 LPRA § 194a(c). As Vega failed to establish a
USERRA violation, he cannot establish a Law 115 violation.
-27-