Sanchez-Borgos v. Venegas Construction Corp. et al

Filing 68

OPINION AND ORDER GRANTING in part and DENYING in part 31 MOTION for Summary Judgment filed by Sanson Corp., Venegas Construction Corp. Signed by Judge Salvador E Casellas on 3/31/2009.(THD)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

D A N IE L SANCHEZ BORGOS Plaintiff v. Civil No. 07-1592 (SEC) V E N E G A S CONSTRUCTION CORP, et al D e f e n d a n ts

O P I N I O N AND ORDER P e n d in g before the Court is a Motion for Summary Judgment (Docket # 31) filed by D ef en d a n ts Venegas Construction Corp.("Venegas Construction") and Sanson Corp

(" S a n so n " )(c o lle c tiv e ly "Defendants"), and Plaintiff's opposition thereto (Docket # 42). After c o n s id e r in g all the filings and the applicable law, for the reasons stated below, Defendants' m o tio n will be GRANTED in part and DENIED in part. F a c tu a l Background T h is action was instituted by Plaintiff, Daniel Sanchez Burgos ("Sanchez"), claiming age d is c rim in a tio n and retaliation pursuant to the Age Discrimination in Employment Act (" A D E A " ), 29 U.S.C. §§ 621-634, Law No. 100 of June 30, 1959, P.R. Laws Ann. tit. 29, § 146 (2 0 0 2 ) ("Law 100"), and Puerto Rico Law No. 115 of December 20, 1991, P.R. Laws Ann. tit. 2 9 , § 194a(a) (2002) ("Law 115"), and Puerto Rico's Law 80, 29 P.R. Laws Ann. § 185(a) (2 0 0 0 ), which prohibits termination without just cause. S a n c h e z was a longtime employment of Venegas Construction, having worked c o n tin u o u s ly for the company since the 1960s. In fact, his relationship with Venegas C o n s tr u c tio n ' s management is even longer, as he worked under the supervision of Emilio Jose V e n e g as ("E.J. Venegas"), Venegas Construction's founder, beginning in the 1950s. In the

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1 9 9 0 s , E.J. Venegas' son, Emilio M. Venegas ("E.M. Venegas"), became president of Venegas C o n s tr u c tio n . Sanchez's job performance, as a construction site foreman, was undisputedly satisfactory, a s is demonstrated by his long relationship with the firm, and that he never received any formal re p rim a n d s. However, he did have minor incidents with E.M. Venegas in 2005, regarding d a m a g e caused to a wall at a project, and bricks Plaintiff removed from a work-site. Docket # 3 1 -2 (Defendants' Statement of Uncontroverted Material Facts ("D.S.U.M.F.")), ¶¶ 10-12. Plaintiff finished his final job as a foreman with Venegas Construction, on or around, M a y 19, 2008. This project was at the company's Atlantic Pipe site. From here on out many of th e relevant events are contested. Plaintiff alleges that upon completion of the Atlantic Pipe site, when other workers were g iv e n orders to go to other Venegas Construction projects, he was called into the office to meet w ith E.M. Venegas, the company's acting president. Docket # 42-2 (Plaintiff's Statement of U n c o n tro v e rte d Material Facts ("P.S.U.M.F.")), ¶¶ 11-12; see also Docket # 54-2 at 3. When th e y met, on May 24, 2006, Plaintiff alleges that E.M. Venegas inquired how old he was, and if he was receiving Social Security benefits. P.S.U.M.F., ¶ 13. Furthermore, Plaintiff alleges th a t E.M. Venegas informed him that he was going to get rid of some older employees, and that sin c e Plaintiff was already receiving Social Security, the company would work out his r e ti re m e n t. P.S.U.M.F., ¶¶ 14; see also Docket # 42-3. Defendants admit that the topic of P la in tif f 's Social Security benefits was breached, but that " . . . this was not directly asked by [ E .M . Venegas]." Docket # 42-2 (Defendants Response to P.S.U.M.F., ¶13). However, E.M.

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V e n e g a s squarely denies he told Plaintiff that the company wanted to "get rid of" older workers. Id . at ¶ 14.1 P la in tif f also alleges that following his May 24 meeting with E.M Venegas, he was sent h o m e with two weeks paid vacation, so that the company could work out his retirement. P .S .U .M .F ., ¶15. Defendants allege that he continued to work at the company's maintenance a re a . Plaintiff also alleges, and Defendants deny, that E.M. Venegas told him that there was no m o re need for him at Venegas Construction, and that his retirement would be worked out by the e n d of June. P.S.U.M.F., ¶ 15. Defendants then transferred Plaintiff to Sanson Corp. W h ile the occurrence of the transfer is undisputed, there is a controversy regarding the c irc u m s ta n c es surrounding Plaintiff's move to Sanson Corp. in Santa Isabel, which is affiliated w ith Venegas Construction. Defendants argue that move was voluntary and temporary. See, e.g., D e f en d a n ts ' Response to P.S.U.M.F., ¶ 28. Plaintiff does not contest Defendant's assertion that " [ w ]h e n [Sanchez] was hired to work for Sanson he was told the work was temporary." D .S .U .M .F ., ¶ 28. However, the position at Sanson Corp. was for less remuneration than his p o s itio n as a foreman at Venegas Construction. Moreover, beginning on June 5, 2006, D e f e n d a n ts moved Plaintiff from the Venegas Construction to the Sanson Corp. payroll. P .S .U .M .F ., ¶ 28. These facts have not been contested. Therefore, this Court concludes that P la in tif f was in fact removed from his position at Venegas Construction on June 5, 2006. Plaintiff worked at Sanson Corp. from the above mentioned date until December 4, 2006. N o age related comments were made to Plaintiff during his time at Sanson Corp. While working w ith Sanson Corp., Plaintiff and E.M. Venegas had a second round of discussions regarding his
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P la i n tiff also alleges that at around that time, E.M. Venegas' son, Ramon Emilio Venegas ("E.R. Venegas"), who a l s o works at Venegas Corporation, told him that he was no longer wanted at the company because of his age. P.S.U.M.F., ¶ 19. This allegation is denied by Defendants. Id. ¶ 19.

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re tire m en t. He was offered $10,000 and the company truck he used as a severance package. He a c ce p te d the truck as a gift, but refused the money, finding it insufficient for his years of service. A f ter this incident, Plaintiff contacted a lawyer and requested a formal clarification of his em p loym en t status with Venegas Construction. D.S.U.M.F., ¶ 29. Accordingly, on November, 2 9 , 2006, Defendants wrote plaintiff stating that his services had not been needed at his last p ro je c t, that he was working with an affiliate firm, that they had understood he wanted to retire, a n d that to resolve the controversy they would assign him to a new project in Mayaguez. See D o c k e t # 35-4. It appears that the letter was never answered, as Plaintiff filed a discrimination c h a rg e with the EEOC against Venegas Construction on November 27, 2006. D.S.U.M.F., ¶ 35. V e n e g as Construction did not receive notification of the EEOC complaint until after December 1 8 , 2009. D.S.U.M.F., ¶ 47. Sanson Corp. is dedicated to extracting and producing sand, gravel, and other materials fo r the construction industry. The company ceased to extract aggregate material in September, 2 0 0 6 , and by the end of the year they were selling their extraction equipment, effectively p re p a rin g for closure. D.S.U.M.F., ¶ 63. On December 4 , 2009, Sanson Corp. laid-off Plaintiff, a lo n g with other employees for economic reasons connected to the scaling down of its o p e ra tio n s . D.S.U.M.F., ¶ 60. After he was laid off from Sanson Corp., on December 18, 2006, Venegas Construction m a d e a $1,000 loan to Plaintiff, under the stipulation that he would repay the amount out of his p a yc h e c k . However, Plaintiff denies that this was his intention when he signed the agreement. N e v e rth e le ss , it is immaterial for this analysis, because it occurred long after the original n e g a tiv e employment action against Plaintiff, and after the offer of reinstatement. D.S.U.M.F., ¶ 41.

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T h e Court may grant a motion for summary judgment when "the pleadings, depositions, 4 a n sw e rs to interrogatories, and admissions on file, together with the affidavits, if any, show that 5 th e re is no genuine issue as to any material fact and that the moving party is entitled to judgment 6 a s a matter of law." FED.R.CIV.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 7 2 4 8 (1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1 st Cir. 2005). In 8 re a ch in g such a determination, the Court may not weigh the evidence. Casas Office Machs., Inc. 9 v . Mita Copystar Am., Inc., 42 F.3d 668 (1 st Cir. 1994). Summary judgment "admits of no room 10 f o r credibility determinations, no room for the measured weighing of conflicting evidence such 11 a s the trial process entails." Id. (citing Greensburg v. P.R. Mar. Shipping Auth., 835 F.2d 932, 12 9 3 6 (1 st Cir. 1987)). Accordingly, if the facts permit more than one reasonable inference, the 13 c o u rt on summary judgment may not adopt the inference least favorable to the non-moving party. 14 Id . at 684. At this stage, the court examines the record in the "light most favorable to the 15 n o n m o v a n t," and indulges all "reasonable inferences in that party's favor." Maldonado-Denis 16 v . Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994). 17 O n c e the movant has averred that there is an absence of evidence to support the 18 n o n m o v in g party's case, the burden shifts to the nonmovant to establish the existence of at least 19 o n e fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 20 (1 st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably be resolved 21 in favor of either party and, therefore, requires the finder of fact to make `a choice between the 22 p arties' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 424 F.3d 112, 116 (1 st 23 C ir. 2005)(citing Garside, 895 F.2d at 48 (1 st Cir. 1990)); see also SEC v. Ficken, 546 F.3d 45, 24 5 1 (1 st Cir. 2008). 25 26

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In order to defeat summary judgment, the opposing party may not rest on conclusory

4 a lle g a tio n s , improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 5 4 0 7 F.3d 11, 15 (1 st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 6 5 , 8 (1 st Cir. 1990). Nor will "effusive rhetoric" and "optimistic surmise" suffice to establish a 7 g e n u in e issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1 st Cir. 1997). Once the 8 p a rty moving for summary judgment has established an absence of material facts in dispute, and 9 th a t he or she is entitled to judgment as a matter of law, the "party opposing summary judgment 10 m u s t present definite, competent evidence to rebut the motion." Méndez-Laboy v. Abbot Lab., 11 4 2 4 F.3d 35, 37 (1 st Cir. 2005) (citing Maldonado-Denis v. Castillo Rodríguez, 23 F.3d 576, 581 12 (1 st Cir. 1994). The "non-movant must `produce specific facts, in suitable evidentiary form' 13 s u f f ic ie n t to limn a trial-worthy issue...[f]ailure to do so allows the summary judgment engine 14 to operate at full throttle." Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1 st Cir. 1991) 15 (w a rn in g that "the decision to sit idly by and allow the summary judgment proponent to 16 c o n f ig u re the record is likely to prove fraught with consequence."); Medina-Muñoz, 896 F.2d 17 a t 8 (citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1 st Cir. 1989)) (holding that 18 " [ t] h e evidence illustrating the factual controversy cannot be conjectural or problematic; it must 19 h a v e substance in the sense that it limns differing versions of the truth which a fact finder must 20 reso lve. ") 21 "A factual issue is `genuine' if `it may reasonably be resolved in favor of either party'

22 a n d , therefore, requires the finder of fact to make `a choice between the parties' differing 23 v e rs io n s of the truth at trial.'" DePoutout v. Raffaelly, 424 F.3d 112, 116 (1 st Cir. 2005) (quoting 24 f ro m Garside, 895 F.2d at 48 (1 st Cir. 1990). Likewise, `material' "means that a contested fact 25 h a s the potential to change the outcome of the suit under the governing law if the dispute over 26

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3 it is resolved favorably to the non-movant." Rojas-Ithier v. Sociedad Española de Auxilio 4 M u tu o , 394 F.3d 40, 42-43 (1 st Cir. 2005) (citations omitted). Therefore, there is a trial-worthy 5 is s u e when the "evidence is such that there is a factual controversy pertaining to an issue that 6 m a y affect the outcome of the litigation under the governing law, and the evidence is sufficiently 7 o p e n -e n d e d to permit a rational fact finder to resolve the issue in favor of either side." Id. 8 (citatio n s omitted). 9 10 A p p lica b le Law and Analysis Defendants move for summary judgment on all claims on the following grounds: (1)

11 P la in tif f has failed to adduce enough evidence to support a prima-facie ADEA, and Law 115 12 c a s e , or show pretext, (2) Plaintiff has failed to produce evidence to support his retaliation claim; 13 (3 ) Defendants allegedly never discharged Sanchez from his employment at Venegas 14 C o n s tru c tio n ; (4) Plaintiff allegedly refused an unconditional offer to return to work which 15 esto p p els his damages claim under ADEA and Puerto Rico law from the date of the offer. 16 In s o f a r as necessary, this Court addresses each argument in turn. 17 18 I . ADEA & Law 100 T h e ADEA makes it unlawful for an employer " . . . to discharge any individual . . . "In order to prevail in a lawsuit

19 b e c a u se of such individual's age." 29 U.S.C. § 623(a)(1).

20 u n d e r the ADEA, the plaintiff's age must actually have played a role in the employer's decision21 m a k in g process and have had a determinative or motivating influence on the outcome." 22 H o f f m a n v. Applicators Sales and Services, Inc., 439 F.3d 9, 17 (1 st Cir. 2006) (citing Reeves 23 v . Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)). Under the ADEA, an employer may 24 n o t "discharge ... or otherwise discriminate against any individual with respect to [his] 25 26

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c o m p e n s a tio n , terms, conditions, or privileges of employment, because of [her] age." 29 U.S.C. § 623(a)(1). Puerto Rico Law 100 has similar goals, and is similarly structured.2 U n d e r the familiar McDonnell Douglas burden-shifting framework, in order to make out a prima facie case of age discrimination, Plaintiff must show that he: (1) was at least forty (40) ye a rs of age; (2) met the employer's legitimate job performance expectations; (3) experienced a d v e rs e employment action; and (4) the employer had a continuing need for the services p ro v id e d by the position from which the claimant was discharged. Cordero-Soto v. Island F in a n c e, Inc., 418 F.3d 114, 119 (1 st Cir. 2005) (citing González v. El Día, Inc., 304 F.3d 63, 68 n .5 (1 st Cir. 2002)). Defendants concede that Plaintiff meets the first and third elements of the p rim a facie case, and tacitly concede the fourth element. However, where there is direct evidence of discrimination, the McDonnell-Douglass f ra m e w o rk is unnecessary. One way of showing that the employee was dismissed in violation o f ADEA is "to show that discriminatory comments were made by the key decision maker or th o s e in a position to influence the decision maker." Santiago-Ramos v. Centennial P.R. Wireless C o r p ., 217 F.3d 46, 55 (1st Cir. 2000); Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 675 (1st C ir.1 9 9 8 ). Proving direct discrimination is not as easy as it might appear, because "stray w o rk p la c e remarks, as well as statements made either by non decision makers or by decision m a k e rs not involved in the decisional process, normally are insufficient, standing alone, to
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" U n d e r Puerto Rico's Law 100, a plaintiff has the initial burden to establish a prima facie case by `(1) d e m o n stra tin g that he was actually or constructively discharged, and (2) alleging that the decision was discriminatory." Baralt v . Nationwide Mut. Ins. Co., 251 F.3d 10, 16 (1st Cir.2001). Having met this rather undemanding requirement, the burden o f persuasion shifts to the employer to show, by a preponderance of the evidence, that it had `good cause' for its action. See id . If the employer shows good cause, then, as under the ADEA, the burden of persuasion returns to the employee to show `th a t the employer's decision was motivated by age discrimination.' Cardona Jiménez v. Bancomercio de Puerto Rico, 174 F . 3 d 36, 43 (1st Cir.1999). Ultimately, under Law 100, if the employer can establish good cause, the employee is faced with t h e same burden of persuasion as an employee bringing suit under the ADEA." Velazquez-Fernandez v. NCE Foods, Inc., 4 7 6 F.3d 6, 11 (1 st Cir. 2007).

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e st a b l i s h either pretext or the requisite discriminatory animus." Gonzalez v. El Dia, Inc., 304 F .3 d 63, 68 (1st Cir. 2002)(internal quotations omitted). Nevertheless, in the case at hand, P la in tif f has proffered direct evidence, in the form of a sworn statement, that the president of the c o m p a n y, E.M. Venegas, told him that he was too old, and should retire, and stated that D e f e n d a n ts were looking to get rid of older workers. See Maldonado-Maldonado v. Pantasia M f g . Corp., 956 F. Supp. 73, 81 (D.P.R. 1997). If true, this Court finds the above sufficient to e sta b lis h a case of direct discrimination. Defendants deny that these statements were ever made, b u t this is a question of credibility, and cannot be disposed of through a summary judgment. N e v e rth e les s, the proof of direct discrimination is not necessary at present. Defendants a rg u e that Plaintiff's claim does not pass the McDonnell-Douglass burden shifting analysis. They a c k n o w led g e that Plaintiff meets factors one and two of the test. Moreover, as stated above, this C o u r t has concluded that Plaintiff was subject to an adverse employment action. Defendants' a rg u m e n t that Plaintiff was on authorized leave while both parties pondered his future lacks p l a u s ib i lity. The position at Sanson Corp. was for less remuneration than his position as a f o re m a n at Venegas Construction. Defendants moved Sanchez from Venegas Construction to th e Sanson Corp., and the company admits that the position was temporary in nature. This ap p ea rs to be a dismissal from his former position, or at best, a demotion. Therefore, the third p ro n g is satisfied. Defendants also argue that Plaintiff fails in terms of the fourth prong, because he has not sh o w n that the replacements were significantly younger than him, which they assert is necessary in an ADEA claim. See Docket # 31 at 15. Said contention is misguided, because the M c D o n n e ll-D o u g la s test merely requires that the employer ". . . [have] a continuing need for the s e rv ic e s provided by the position from which the claimant was discharged." Cordero-Soto, 418

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F .3 d at 119; see also Velazquez-Fernandez, 476 F.3d at 11. Defendants have not refuted P la in tif f 's assertion that Venegas Construction had a continuing need for site foremen. Accordingly, this Court finds that Plaintiff has met his burden of establishing a prima fa c ie case of age discrimination. However, this does not end the inquiry. Under the McDonnell D o u g la s framework, once Plaintiff establishes a prima facie case, the burden shifts to the em p loyer to articulate a legitimate non-discriminatory reason for the adverse employment action. H o f f m a n , 439 F.3d at 17 (citing González, 304 F.3d at 70). Defendants have not met that b u rd e n . In fact, their strategy, which attempts to deny Plaintiff suffered an adverse employment a c tio n , has made this impossible. Accordingly, Defendants motion for summary judgment is D E N I E D for Plaintiffs' ADEA and Law 100 claims against Venegas Construction. Likewise, as Defendants have failed to proffer cause for Plaintiff's dismissal, their motion for summary ju d g m e n t for his Law 80 claims shall also be DENIED. Mitigation B e yo n d Defendants' unfruitful allegations that Plaintiff was never discharged, they make a n additional allegation that they made an unconditional offer of reinstatement. D.S.U.M.F., ¶ 3 2 . This is substantiated by a letter dated November 10, 2006. See Docket # 35-4, Exh. 2. P la in tif f does not contest the veracity of this letter. In fact, he uses it as evidence that Plaintiff h a d been discharged from Venegas Construction. See Docket # 42-1 at 9. Successful ADEA claims often include back pay, but "an employer charged with unlawful d is c rim in a tio n often can toll the accrual of back pay liability by unconditionally offering the c la i m a n t the job he sought, and thereby providing him with an opportunity to minimize d am ag es. " Ford Motor Co. V. E.E.O.C., 458 U.S. 219, 231 (1982). However, Ford left this Court w ith the discretion to determine when conditions exist that would merit circumventing this

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11 11 policy. Refusal of an offer of reinstatement has often not affected back pay awards in the context o f constructive discharge and harassment cases. Bayard v. Riccitelli, 952 F.Supp. 977, 988 (E .D .N .Y . 1997); Maturo v. National Graphics, Inc., 722 F.Supp. 916, 927 (1989).3 Of course, em p loyers cannot act like ludic cats, bating and toying with their employees trough insincere o f f ers aimed at stemming off litigation. T h e present case does suggest that Venegas Constuction made a good faith offer of re in s ta te m e n t. D.S.U.M.F., ¶ 32. Plaintiff refused the assignment, because he was concerned that it was a pretext for laying him off again under the guise of economic reasons, and due to the fact th a t he was already in another, albeit lesser, position with Sanson Corp. Nevertheless, given that t h e relevance of back pay only becomes a factor in the final award, this Court will reserve ju d g m e n t on this issue, and its affect on back pay, pending final resolution of this action. Law 115 and ADEA Retaliation Claims B e c a u s e of their similarity, and parallel evidentiary mechanisms, this Court will discuss re ta lia tio n under ADEA and P.R. Act 115 concurrently. See Rivera Rodriguez v. Sears Roebuck d e Puerto Rico, Inc., 367 F.Supp.2d 216, 230 (2005). ADEA prohibits retaliation, and an employer may not discriminate against an employee w h o has "opposed any practice made unlawful by this section" or who has ". . . made a charge, te stif ie d , assisted, or participated in any manner in an investigation, proceeding, or litigation u n d e r this chapter." 29 U.S.C.A. §623(d). Law 115 has similar goals. In order to establish a p rim a facie case of retaliation, an ADEA or Law 115 plaintiff must show that: (1) he engaged
3

I n the context of mitigation under Title VII, the First Circuit has acknowledged that two other circuits ". . . have r u l e d that an accommodation offer after an adverse employment action does not shield an employer from liability under Title V I I . " Clouthier v. Costco W h o l e s a l e Corp., 390 F.3d 126, 134 (1st Cir. 2004).

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12 in ADEA-protected conduct, (2) he was thereafter subjected to an adverse employment action,

3 a n d (3) a causal connection existed between the protected conduct and the adverse action. 4 R a m íre z -R o d ríg u e z v. Boehringer Ingelheim Pharm., Inc., 425 F.3d 67, 84 (1 st Cir. 2005) 5 (q u o tin g Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1 st Cir. 1991)). As before, if the 6 p la in tif f establishes a prima facie case, the employer must articulate a legitimate, non7 d is c rim in a to ry reason for its action. Id. Once the employer shoulders that burden, the plaintiff 8 m u s t show that the employer's proffered reason is "a pretext masking retaliation for the 9 e m p lo ye e 's opposition to a practice cast into doubt by the ADEA". Id. In order for the plaintiff 10 to ultimately succeed, it is unnecessary for an actual ADEA violation to have occurred; it is 11 e n o u g h for plaintiff to have a good-faith belief that such a violation indeed took place. Id. 12 D e f en d a n ts assert that Plaintiff cannot establish the third prong of the prima facie case: 13 th e causal connection. Plaintiff points to the temporal proximity between the ongoing complaint 14 a n d the adverse employment action. He also points out that Defendants were cognizant he had 15 c o n tra c te d legal counsel. Nevertheless, there is evidence that Defendants did not know Plaintiff 16 h a d filed a complaint with the EEOC when he was released from Sanson Corp. 17 Furthermore, this question is moot because they have proffered a legitimate non18 d is c rim in a to ry reason for his dismissal: the reduction of the labor force, and reduction of 19 o p e ra tio n s at the plant. See Rosen v. Casiano Communications, Inc., 971 F.Supp. 61, 64 (D.P.R. 20 1 9 9 7 ). These economic reasons are understandable, and constitute good cause both under 21 A D E A , Law 115, and Law 80. Furthermore, Plaintiff has not referred to any retaliatory actions 22 b y any Sanson Corp.'s employees or managers, and has failed to show retaliatory animus. Id. at 23 6 3 . This Court will reiterate that Plaintiff admits that no comments about his age were made 24 d u rin g the period he worked at Sanson Corp. See Ramirez-Rodriguez v. Boehringer Ingleheim, 25 4 2 5 F.3d 67, 86 (1 st Cir. 2005). Moreover, during this same period, Defendants tendered Plaintiff 26 a n offer to return to Venegas Construction, which he turned down.

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13 In light of the foregoing, this Court cannot conclude that the articulated reasons for

3 P la in t if f ' s discharge from Sanson Corp. are pretextual or a sham. Accordingly, Defendants' 4 m o t io n for summary judgement is GRANTED as to the retaliation claims. Plaintiff's retaliation 5 c la im s are hereby DISMISSED WITH PREJUDICE. Likewise, Sampson Corp. was not 6 in v o lv e d in the original act of alleged discrimination, which now occupies the core of this 7 la w s u it, therefore all claims against Sampson Corp are DISMISSED with prejudice. 8 C o n c lu s io n 9 F o r the reasons stated above, Defendants' motion for summary judgment is GRANTED 10 in as to Sanson Corp. and the retaliation claims, and DENIED for all claims against 11 V e n e g a s Construction. Judgment will be entered accordingly. 12 IT IS SO ORDERED. 13 S a n Juan, Puerto Rico, this 31st day of March, 2009. 14 15 16 17 18 19 20 21 22 23 24 25 26 S /S a lv a d o r E. Casellas S a lv a d o r E. Casellas U .S . District Judge