Cruz et al v. Bristol Myers Squibb Company PR, Inc. et al
Filing
165
OPINION AND ORDER re 94 Motion for Summary Judgment. The Court GRANTS defendants' motion for summary judgment. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 04/15/2011. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CESAR CRUZ, et al.,
Plaintiffs,
v.
Civil No. 08-1424 (FAB)
BRISTOL MYERS SQUIBB
PR, INC., et al.,
COMPANY
Defendants.
OPINION AND ORDER
BESOSA, District Judge
On January 11, 2011, defendants Bristol Myers Squibb Company
PR, Inc., Bristol Myers Squibb MFG., Inc., and BMS Severance Plan
(collectively “Bristol Myers”) filed a motion for summary judgment.
(Docket No. 94.)
On January 23, 2011, plaintiff Cesar Cruz
(“Cruz”) filed an opposition to defendants’ motion.
110.)
Defendants replied to plaintiff’s opposition on February 4,
2011. (Docket No. 125.)
reply.
I.
(Docket No.
On February 22, 2011, plaintiff filed his
(Docket No. 137.)
Defendants’ Motions to Strike
On February 1, 2011, defendants Bristol Myers filed a motion
to strike three of plaintiff’s exhibits to his opposition to
defendants’
motion
for
summary
judgment.
(Docket
No.
124.)
Plaintiff Cruz filed a motion in opposition to defendants’ motion
to strike on February 22, 2011.
(Docket No. 136.)
Defendants
Civil No. 08-1424 (FAB)
2
Bristol Myers replied to plaintiff’s motion in opposition on
March 2, 2011.
(Docket No. 145.)
Defendants also filed a motion to strike plaintiff’s untimely
announcement of witnesses and second set of interrogatories and
request for production of documents on November 19, 2010.
No. 73.)
(Docket
Plaintiff opposed the motion and requested declaratory
judgment on December 13, 2010.
(Docket No. 76.)
Defendants filed
their reply and opposition to plaintiff’s motion on December 22,
2010.
(Docket No. 79.)
2011.
(Docket No. 89.)
The
Court
first
Plaintiff filed a response on January 5,
addresses
defendants’
motion
to
strike
plaintiff’s exhibits, then moves on to defendants’ motion to strike
the announcement of witnesses and second set of interrogatories, as
well as plaintiff’s motion for declaratory judgment.
Defendants request the Court either to strike or disregard
completely three of plaintiff’s exhibits to his opposition to
defendants’ motion for summary judgment.
(Docket No. 124 at 2.)
Specifically, defendants allege that two of the exhibits, Disparate
Impact Analysis Phase A and Phase B, were not previously disclosed
to defendants prior to the discovery deadline set by this Court in
its scheduling order for November 9, 2010.
(Docket No. 42 at 8.)
Defendants further allege that plaintiff’s use of a declaration by
Louis Merced-Torres (“Merced”) was improper and should be stricken
Civil No. 08-1424 (FAB)
or
disregarded
affidavit.
A.
by
3
the
Court
because
it
constitutes
a
sham
(Docket No. 124 at 7.)
Motion to Strike Disparate Impact Analysis Phase A and
Phase B
Defendants
ask
the
Court
to
strike
or
disregard
plaintiff’s exhibits at Docket Nos. 110-6 and 110-7 because they
were not properly disclosed to defendants during the discovery
process
in
violation
of
Rule
26,
which
mandates
parties
to
disclose, among other things, copies “of all documents . . . [the
party] may use to support its claims or defenses, unless the use
would be solely for impeachment.”
Failure to make appropriate
discovery disclosures as required by Rule 26 results in the failing
party’s inability “to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the
failure
was
substantially
justified
or
is
harmless.”
Fed.R.Civ.P. 36(c)(1). Defendants also maintain that the documents
are unauthenticated and irrelevant.
(Docket No. 124 at 3-4.)
Plaintiff does not dispute that the documents were not sent to
defendants prior to the discovery deadline, but claims that counsel
for plaintiff sent a letter to defendants’ counsel, prior to the
discovery deadline of November 9, 2010, notifying them that there
was a “predicament regarding the payment of an expert and that
[they] would be using a model software until the trial.”
No. 136 at 6.)
this
(Docket
Plaintiff claims that he received no response to
communication,
and
sent
another
communication,
dated
Civil No. 08-1424 (FAB)
4
October 10, 2010, notifying defendants that plaintiff had uncovered
information of “reduction in force data” which “casts doubt as to
information given . . . by [defendant] and will likely trigger
another
interrogatory
on
our
part.”
(Docket
No.
136-3.)
Defendants assert that counsel for defendants never received the
initial letter, and that the letter is irrelevant, because the duty
to authenticate the documents remains with the party moving to
admit them as evidence, which plaintiff failed to do.
No. 145 at 3.)
authenticated
(Docket
Plaintiff maintains that the documents will be
by
an
expert
at
trial
(Docket
No.
136
at
6);
defendants claim, however, that no expert has ever been disclosed
to defendant.
(Docket No. 124 at 4).
Pursuant to Rule 26(a) and the Court’s Scheduling Order,
filed on February 10, 2010, the parties were under a continuing
obligation to complete all discovery by November 9, 2010.
Docket No. 42 at 8.
See
Rule 36(c) clearly states that “[i]f a party
fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at a
trial,
unless
harmless.”
the
failure
was
substantially
justified
or
is
Defendants maintain, and plaintiff does not dispute,
that plaintiff did not disclose the Disparate Impact Analysis Phase
A and Phase B to defendants at any time prior to the discovery
deadline, or that any expert report regarding the documents has
Civil No. 08-1424 (FAB)
5
been disclosed to defendants.
Thus, plaintiff’s exhibits may be
used to support his opposition to defendant’s motion for summary
judgment only if plaintiff’s failure to disclose can be deemed
“substantially justified” or “harmless.”
Plaintiff’s
exhibits
primary
argument
in
of
motion
support
his
Fed.R.Civ.P. 36(c).
in
is
favor
that
of
using
plaintiff
the
asked
defendants whether “using of the program used in Exhibits 4a and 4b
. . . was acceptable and received no objection.”
at 7.)
(Docket No. 136
Plaintiff further maintains that he was “forced to forego
an expert’s report because he could not pay for one.”
Id.
Rule 26(a) is unambiguous in mandating that a party must provide
documents in support of its claims or defenses to other parties
prior to the discovery deadline.
Fed.R.Civ.P. 26(a)(1)(A)(ii).
The rules also require a party to disclose the identity of expert
witnesses and submit an expert report, containing, among other
things, a
26(a)(2).
summary
of
Plaintiff
the
witness’s
delayed
in
expected
providing
testimony.
the
documents
Id.
to
defendants until well after the discovery deadline, which was set
for November 9, 2010.
(Docket No. 42.)
The first time defendants
claimed to have seen the documents, which plaintiff does not
dispute, was when plaintiff attached them to his opposition to
defendants’ motion for summary judgment, on January 23, 2011.
Docket No. 124.
See
As of this date, plaintiff still has not provided
an expert report. Plaintiff’s failure to disclose this information
Civil No. 08-1424 (FAB)
6
means that plaintiff is not permitted to use this evidence in
support
of
its
motion
“unless
justified or is harmless.”
Circuit
Court
of
Appeals
the
failure
was
substantially
Fed.R.Civ.P. 37(c)(1).
has
held
that
Rule
The First
37(c),
though
traditionally used to bar introduction of evidence or expert
testimony at trial, “applies with equal force to motions for
summary judgment.”
Lohnes v. Level 3 Communications, Inc., 272
F.3d 49, 60 (1st Cir. 2001) (granting defendant’s motion to strike
and excluding expert’s affidavit at summary judgment stage where it
was not adequately disclosed by plaintiff during the discovery
process.)
Plaintiff’s failure to disclose the disparate impact
analyses and an expert report regarding the analyses during the
discovery process prevented defendants from conducting appropriate
discovery regarding the analyses and deprived defendants “of the
opportunity
to
depose
the
proposed
expert,
challenge
his
credentials, solicit expert opinions of its own, or conduct expertrelated discovery.”
Id. (holding that “[t]his is exactly the type
of
advantage
unfair
designed
tactical
to
justifiable
eradicate.”)
explanation
for
that
the
Plaintiff
his
disclosure
fails
failure
to
to
rules
were
provide
any
produce
adequate
discovery, and the prejudice to defendant is obvious. Accordingly,
defendants’ motion to strike the disparate impact analyses is
GRANTED.
Civil No. 08-1424 (FAB)
B.
7
Motion to Strike Louis Merced’s Affidavit
Defendants next request that the Court strike Exhibit 3
of plaintiff’s motion in opposition to defendants’ motion for
summary judgment, alleging that the exhibit, which is a sworn
declaration by Merced, is a sham affidavit.
Merced was deposed on October 28, 2010.
See Docket No. 110-5.
(Docket No. 124-1.)
He
testified, among other things, (1) that he was employed as a
mechanic, not a lead technician; (2) that plaintiff filed an
application for continued work with defendant; and (3) that he
lacked knowledge of the requirements to be a corrective maintenance
mechanic.
Id.
The affidavit which plaintiff seeks to admit,
states, in contravention to Merced’s deposition testimony, (1) that
Merced worked as a lead technician; (2) that plaintiff was not
allowed to file an application for continued work with defendant;
and (3) that certain individuals lacked the requirements to be
called a mechanic. (Docket No. 110-5.) Plaintiff alleges that the
affidavit should be admitted because it was created prior to
Merced’s deposition, it was made part of the record during Merced’s
deposition, and it “was the basis of defendant’s deposition” of
Merced.
(Docket No. 136 at 1.)
Defendants point out, however,
that the affidavit used during Merced’s deposition was a different
document than the one plaintiff seeks to introduce into evidence
now.
(Docket No. 145.)
While much of the language in the two
documents is similar, defendants are correct that the affidavit
Civil No. 08-1424 (FAB)
8
used during Merced’s deposition is not the same one now offered by
plaintiff.
See Docket Nos. 145-1 and 110-5.
Moreover, the
affidavit used during Merced’s deposition was dated 06/07/2010,
while the document being offered into evidence is undated.
Id.
The First Circuit Court of Appeals has held that issues
of fact may not be created by parties by the submission of a
“subsequent contradictory affidavit.”
Morales v. A.C. Orssleff’s
EFTF, 246 F.3d 32, 35 (1st Cir. 2001) (citing Colantuoni v. Alfred
Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994) (“When an
interested
witness
has
given
clear
answers
to
unambiguous
questions, he cannot create a conflict and resist summary judgment
with an affidavit that is clearly contradictory, but does not give
a satisfactory explanation of why the testimony is changed.”)
Portions of the affidavit plaintiff seeks to introduce contradict
the testimony that Merced gave in his deposition.
Plaintiff
presents a number of confusing and unclear arguments supporting
introduction of the affidavit in his opposition to defendants’
motion to strike.
It appears that plaintiff attempts to reconcile
the affidavit with the deposition testimony by claiming that the
affidavit
testimony.
is
merely
summarizing
or
clarifying
the
deposition
There is no explanation given of how the testimony is
different; in fact, plaintiff does not even seem to recognize or
acknowledge this fact.
While Merced’s deposition testimony may be
ambiguous in some respects, plaintiff cannot submit an affidavit
Civil No. 08-1424 (FAB)
9
that is confusing and contradictory when compared to the witness’s
deposition testimony.
Plaintiff repeatedly cites to Merced’s
deposition testimony, supposedly to show that the affidavit does
not contradict that testimony.
Merced’s deposition testimony was
inconsistent in some respects, for example, on the issue of whether
Merced was employed as a lead technician or performed the duties of
a lead technician. (Docket No. 124-1 at 2-3.) Plaintiff’s attempt
to clarify the deposition testimony through introduction of an
affidavit is improper and misguided at best, and constitutes a sham
affidavit at worst.
Defendants’ motion to strike exhibit 3,
Merced’s sworn declaration, is GRANTED.
C.
Motion to Strike Untimely Announcement of Witnesses and
Second Set of Interrogatories
Defendants request that the Court strike plaintiff’s
untimely
announcement
of
witnesses
and
second
interrogatories and request for production of documents.
No. 73.)
set
of
(Docket
Defendants claim that plaintiff’s failure to announce
four witnesses before the discovery deadline is in violation of
Rule 26.
As mentioned in Part A of this section, Rule 36(c)
clearly states that “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”
Plaintiff’s failure to
disclose the four witnesses to defendant until November 8, 2010
Civil No. 08-1424 (FAB)
10
at 10:51 p.m., less than two hours before the discovery deadline of
November 9, 2010, has certainly not been harmless to defendants.
Due to plaintiff’s delay, defendants were unable to depose any of
the witnesses or carry out discovery related to the individuals
prior to the discovery deadline.
Therefore, defendants’ motion to
strike the untimely announcement of plaintiff’s witness is GRANTED.
Defendants next request the Court to strike plaintiff’s
second
set
of
interrogatories,
which
were
also
served
upon
defendants on November 8, 2010 at 10:51 p.m., less than two hours
before the discovery deadline. The Court finds this an appropriate
place to note the bizarre and nonsensical content of plaintiff’s
motions, particularly the motion in opposition to strike and
request for declaratory judgment.
See Docket No. 76.
Plaintiff
fails to cite to any case law, but instead relies on constitutional
arguments
supported
by
various
references
to
psychologists,
philosophers, song lyrics, puns, and other pop culture analogies.
Id.
to
It is well-settled First Circuit law that “[i]ssues adverted
in
a
perfunctory
manner,
unaccompanied by
developed argumentation, are deemed waived.”
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
some
effort
at
United States v.
Plaintiff’s second set of
interrogatories contained questions that were “reiterations of
information I did not receive answers to in the first set of
answers to interrogatories” and questions “prompted by the fact
that, at least in my opinion, neither Mr. Cotto, nor Mrs. Castro
Civil No. 08-1424 (FAB)
11
were entirely response [sic] during their recent deposition.”
(Docket No. 79-2.)
Plaintiff also claims that his interrogatory
requests are appropriate because they were technically filed before
the deadline of November 9, 2010.
Plaintiff fails to note,
however, that the Case Management Order expressly states that “all
discovery must be completed on or before November 9, 2010, and that
“[a]ny motion seeking an extension must be filed well in advance of
the deadline.”
(Docket No. 42 at 8.)
Defendants are correct in
asserting that plaintiff should have used the mechanisms contained
in the Federal Rules of Civil Procedure and the Local Rules to
resolve discovery disputes or object to incomplete discovery well
before the discovery deadline.
(Docket No. 79 at 6; see also
Fed.R.Civ.P. 37(a); Local Civ.R. 26(b).) According to the evidence
of communication between counsel produced by defendants and the
arguments
set
plaintiff’s
forth
second
by
set
both
of
parties,
the
interrogatories
Court
finds
that
and
request
for
production, served upon defendants less than two hours before the
discovery deadline, is improper.
The Court GRANTS defendants’
motion to strike the interrogatories.
Civil No. 08-1424 (FAB)
Finally,
the
12
Court
turns
to
plaintiff’s
declaratory judgment under 42 U.S.C. §§ 1981 and 1982.1
motion
for
The Court
agrees with defendants that plaintiff has failed to demonstrate
that he is entitled to a declaratory judgment under Rule 57 of the
Federal Rules of Civil Procedure.
Like the majority of his
opposition to defendants’ motion to strike, this argument in
plaintiff’s
motion
makes
no
sense.
The
Court
declines
the
opportunity to consider baseless arguments that are unsupported by
case law or applicable statutory law.
Plaintiff’s motion for
declaratory judgment is DENIED.
II.
Motion to Deem Admitted Defendants’ Statement of Facts
On January 31, 2011, defendants filed a motion to deem as
admitted defendants’ statement of uncontested facts in support of
its motion for summary judgment.
(Docket No. 120.)
opposed the motion on February 1, 2011.
1
Plaintiff
(Docket No. 123.)
42 U.S.C. § 1981 reads:
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make
and enforce contracts, to sue, be parties, give evidence, and
to the full and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and
to no other.
42 U.S.C. § 1982 reads:
All citizens of the United States shall have the same
right, in every State and Territory, as is enjoyed by white
citizens thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.
Civil No. 08-1424 (FAB)
13
Defendants allege that plaintiff has failed to comply with Local
Rule 56, which states in part:
A party opposing a motion for summary judgment shall
submit with its opposition a separate, short, and concise
statement of material facts.
The opposing statement
shall admit, deny or quality the facts supporting the
motion for summary judgment by reference to each numbered
paragraph of the moving party’s statement of material
facts.
Local Civ.R. 56(c).
The Court will only consider the facts alleged in the parties’
Local Rule 56 statements when entertaining the movant’s arguments.
Rivera
v.
Telefonica
(D.P.R. 1995).
comply
with
permitted
2005).
Puerto
Rico,
913
F.Supp.
81,
85
Where the party opposing summary judgment fails to
the
rule’s
to treat
uncontested.
de
the
requirements,
moving
party’s
the
district
statement
of
court
is
facts as
See Alsina-Ortiz v. Laboy, 400 F.3d 77, 80 (1st Cir.
“Parties ignore [such rules] at their peril.”
Ruiz Rivera
v. Riley, 209 F.3d 24, 28 (1st Cir. 2000).
Plaintiff
claims
that
he
has
adequately
addressed
the
defendants’ uncontested facts in his own statement, and if the
Court were to find that plaintiff has failed to comply with
Rule 56, the Court should direct defendants to state specifically
which issues plaintiff has failed to address.
(Docket No. 123
Civil No. 08-1424 (FAB)
at 2.)2
here.
14
The Court does not consider this remedy to be appropriate
Plaintiff’s statement of uncontested facts clearly fails to
“admit, deny, or qualify [defendants’] assertions of fact paragraph
by paragraph as required by Local Rule 56(c). Instead, [plaintiff]
submitted an alternate statement of facts in narrative form.”
See
Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 7-8 (1st
Cir. 2007).
The First Circuit Court of Appeals, in Philip Morris,
has held that “[t]his failing alone [by plaintiff] would have
warranted a ‘deeming’ order” admitting the defendant’s statement of
uncontested facts. Id. Significantly, plaintiff did not intend to
accept defendants’ statement of facts as true and simply augment
them with their own additional facts.
Plaintiff’s statement of
facts includes an entirely alternate set of facts, many of which
contain incorrect citations to the record, in further violation of
Local Rule 56(c) and (e).
For the reasons stated, the Court GRANTS
defendant’s motion to deem admitted defendants’ statement of facts.
2
Plaintiff cites to Fed.R.Civ.P. 56(e), which provides that:
“[i]f a party fails to properly support an assertion of fact
or fails to properly address another party's assertion of fact
. . . the court may:
(1)
(2)
(3)
(4)
give an opportunity to properly support or address the
fact;
consider the fact undisputed for purposes of the motion;
grant summary judgment if the motion and supporting
materials--including
the
facts
considered
undisputed--show that the movant is entitled to it; or
issue any other appropriate order.”
Civil No. 08-1424 (FAB)
15
III. Statement of Uncontested Facts
Background Facts
Bristol Myers is a pharmaceutical company located in Humacao,
Puerto Rico.
working at
(Docket No. 94-3 at ¶ 4.)
Bristol
Myers
as
a temporary
employment company in December, 1991.
Cruz became
Nos. 94-4
a
regular
at
5;
94-8
in
at
Cruz
of
his
termination,
Maintenance Mechanic.
May 17, 1965.
Cruz
9.)
employee
September, 1993.
was
terminated
(Docket No. 94-4 at 11.)
held
through
an
(Docket No. 94-4 at 5.)
employee
employment in August, 2007.
Plaintiff Cruz began
the
position
(Docket No. 94-4 at 6-7.)
(Docket Nos. 94-4 at 2; 94-8 at 9.)
of
(Docket
from his
At the time
Corrective
Cruz was born on
He was 42 years
old when terminated.
Facts Related to the Closing of Bulk Operations in Humacao
On or around 2003, Bristol Myers made the decision to close
the Bulk Operations in the Humacao site. (Docket No. 94-3 at ¶ 6.)
The
closing
process
spanned several years.
entailed
a
corporate
reorganization
(Docket No. 94-3 at ¶ 7.)
that
As part of the
closing process, Bristol Myers adopted a voluntary Retention Bonus
Program designed to retain key resources and assure compliance
until the closure of operations; only those employees selected by
senior management were eligible to participate in the program.
(Docket No. 94-3 at ¶ 8.)
On July 29, 2003, Bristol Myers sent
Cruz
him
a
letter
informing
that
he
had
been
selected
to
Civil No. 08-1424 (FAB)
16
participate in the company’s Retention Bonus Program.
(Docket
No. 94-5.) Under this program, Cruz became eligible for a one-time
cash payment, payable 30 days after his required service with the
company had concluded.
Id.
The cash bonus was in addition to any
severance package that Cruz may have been eligible for at the time
of his termination.
Id.
According to the letter sent to Cruz, the
cash bonus was to be managed in three phases:
(1) Phase I - those
selected employees impacted when completion of Building 5 process
was transferred or completed would receive three months (25%) of
their annual salary; (2) Phase II - those selected employees
impacted
when
completion
of
Buildings
2
and
29
process
was
transferred or completed would receive six months (50%) of their
annual salary;
and
(3)
Phase
III
-
those
selected employees
impacted when completion of Buildings 3 and 5 Sterile processes was
transferred or completed would receive nine months (75%) of their
annual salary.
Id.
The amount of bonus to be paid to a particular
employee depended on the timing of the employee’s termination and
not the building in which the employee worked.
(Docket No. 94-3
at ¶ 10.)
Neither the July, 29, 2003 letter sent to Cruz nor the
Retention
Bonus
contained
a
Program
promise
of
description
continued
included
employment
building or until a specified date or time.
in
in
the
a
letter
particular
(Docket No. 94-5.)
Civil No. 08-1424 (FAB)
17
Facts Related to the Paired Comparison Analysis
As part of the process of selecting the employees who would be
terminated, Bristol Myers first decided which positions would be
affected, and then carried out a paired comparison analysis of
critical skills of the employees in the affected positions.
at ¶ 12.
Id.
The company ranked the employees according to the results
of the paired comparison analysis, and retained those employees
with the top rankings, while terminating those with the lowest
rankings.
Id.
At the time of Cruz’s termination in August 2007,
his position of Corrective Maintenance Mechanic was one of those
chosen to be affected, and therefore, Bristol Myers decided that
two
Corrective
termination.
Maintenance
Id. at ¶ 13.
Mechanics at that time:
Mechanics
would
be
selected
for
There were four Corrective Maintenance
plaintiff Cesar Cruz, Merced, Pedro Cruz,
and Daniel Fontanez (“Fontanez”).
at ¶ 5; 94-7 at ¶ 5; 94-11.)
(Docket Nos. 94-3 at ¶ 14; 94-6
To determine which two mechanics
would be selected for termination, and pursuant to Bristol Myers
practices, the company carried out a paired comparison analysis of
the
four
corrective
maintenance
mechanics
and
selected
the
employees considered best to embody the skills needed to continue
the remaining operations.
(Docket No. 94-3 at ¶ 17.)
Pursuant to
company policy, in the event that two or more employees fell within
the same performance category, the employee’s seniority would be
considered the tie-breaker in the decision. Id. at ¶ 18.
Fontanez
Civil No. 08-1424 (FAB)
18
began working at Bristol Myers on June 11, 1984 and was born on
July 21, 1957.
(Docket No. 94-8 at 9.)
Pedro Cruz began working
at Bristol Myers on October 8, 1984 and was born on March 2, 1964.
Id.
Merced began working with Bristol Myers on April 8, 1991 and
was born on January 7, 1959.
The
three
analysis
were:
raters
(1)
who
Id.
carried
Armando
out
Marina
the
paired
(“Marina”),
comparison
Director
of
Facilities; (2) Luis Cotto (“Cotto”), Maintenance Services Manager,
Manufacturing Support and the Corrective Maintenance Mechanics’
supervisor;
and
(3)
Juan
Department supervisor.
Ramon
Ortiz
(“Ortiz”),
Facilities
(Dockets Nos. 94-3 at ¶ 20; 94-7 at ¶¶ 4-5;
94-6 at ¶¶ 4-5; 94-10 at 2-3; 94-11.)
Each rater performed an
independent analysis of the Corrective Maintenance Mechanics based
upon six criteria, and then sent Grisel Castro (“Castro”), the
company’s Director of Human Resources, their individual results.
(Docket Nos. 94-3 at ¶¶ 20-21; 94-7 at ¶¶ 6-7; 94-6 at ¶¶ 6-7; 9410 at 2-4.)
The six criteria were:
(1) coordinates with all
business partners to provide preventive and corrective maintenance
to
plant
equipment
in
compliance
with
applicable
operational
procedure requirements; (2) maintains in good condition all tools
and
equipments
in
his/her
responsibility
as
demonstrated
by
following the Corrective Maintenance Program; (3) effectively and
timely determines and corrects equipment malfunctions demonstrated
by timely completion of work force; (4) conducts inspections
Civil No. 08-1424 (FAB)
periodically
(5)
in
effectively
19
accordance
carries
out
with
daily
established
work
by
procedures;
compliance
with
appropriate procedures and documentation in accordance with cGMP,
SOP’s and safety regulations as applicable; and (6) demonstrates
all Core BMS Behaviors.
(Docket Nos. 94-11; 94-8 at 3; 94-6
at ¶ 7; 94-7 at ¶ 7.)
Castro was in charge of tallying the results of the analysis
and identifying the employees to be terminated, based on the
results.
(Docket No. 94-3 at ¶ 21.)
Based on the results of the
analysis, the employees were given a rating number and ranked 1
through 4, with 1 being the highest scoring employee and 4 the
lowest scoring.
Id. at ¶ 22.
The highest scoring employee was
Pedro Cruz (ranked 1), followed by Fontanez (ranked 2), followed by
Cesar Cruz (ranked 3), and followed by Merced (ranked 4).
No. 94-3 at ¶ 23; see also Docket No. 94-3 at 10.)
(Docket
The employees
were then divided into three “post-rating ranks” or categories:
Pedro Cruz was in Rank 1, Fontanez and Cesar Cruz were in Rank 2,
and Merced was in Rank 3.
Docket No. 94-3 at 11.)
(Docket No. 94-3 at ¶ 24, see also
Merced, the lowest ranking employee, was
selected for termination.
(Docket No. 94-3 at ¶ 26.)
Because
there was another person to be selected for termination, and
Fontanez and Cesar Cruz were both in Rank 2, the company used
seniority as the “tie-breaker” and chose the less senior employee,
Cesar Cruz, for termination.
Id. at ¶ 27; see also Docket No. 94-8
Civil No. 08-1424 (FAB)
at 3-4, 9.
the
four
20
As of August 2007, Cesar Cruz was the least senior of
employees
who
Maintenance Mechanic.
occupied
the
position
of
Corrective
(Docket No. 94-8 at 3-4, 9.)
During the summer of 2007, Bristol Myers began the process of
permanently closing Building 2 in the Humacao site.
No. 94-3 at ¶ 11.)
(Docket
On June 22, 2007, Bristol Myers sent Cesar Cruz
a letter in compliance with the Workers Adjustment and Retraining
Act of 1988 (“WARN”) notifying him that there would be a permanent
closing of the plant that would result in termination of his
employment on August 29, 2007.
(Docket No. 132-3.)
Cruz was
selected for termination during Phase II of the Bonus Retention
Program.
(Docket Nos. 94-3 at ¶ 29; 94-5 at 2.)
At the time of
Cruz’s termination, the closing of Buildings 3 and 5 Sterile was
not yet completed.
(Docket Nos. 94-4 at 28-31; 94-9 at 31.)
In
September, 2007, Cruz was paid a bonus of $19,823.50, equivalent to
50% of his annual salary.
at 12.
(Docket No. 94-3 at ¶ 31; see also 94-3
No one was hired to replace Cruz.
(Docket Nos. 94-3 at
¶ 32; 94-10 at 5.)
Facts Related to the Severance Plan
Bristol Myers adopted a Severance Plan, governed by the
Employee Retirement Income and Security Act (“ERISA”), effective
January, 2006, in order to provide eligible employees who were
involuntarily terminated from their employment with economic and
other
benefits
to
assist
them
during
the
period
following
Civil No. 08-1424 (FAB)
termination.
2006,
Cruz
21
(Docket Nos. 132-4; 94-3 at ¶ 33.)
attended
a
meeting
where
the
On April 18,
Severance
Plan
was
discussed and he received a copy of the Severance Plan’s Summary
Plan Description (“SPD”). (Docket Nos. 94-14; 94-15; 132-5; 132-6;
94-4 at 14-15.)
The SPD expressly stated that, in order to be
eligible to receive severance under the plan, a General Release had
to be signed and returned within the time period required by the
employer.
(Docket No. 132-4 at 5.)
The Severance Plan and the SPD
contained detailed information as to a participant’s right to file
an
appeal
if
termination,
denied
as
severance
well
as
the
benefits
name
and
within 60
address
days
of
the
Administrator to whom such appeal had to be addressed.
Nos. 132-4 at 13-18; 94-18.)
participant’s
right
to
after
Plan
(Docket
The Severance Plan also detailed a
subsequent
appeals,
and
noted
the
requirement to exhaust all internal administrative remedies before
filing a lawsuit to recover benefits.
On
August
17,
2007,
Bristol
Id.
Myers
sent
Cruz
a
letter
confirming his termination effective August 31, 2007, including
information and documents related to the termination, such as a
summary of the severance payment to which plaintiff was entitled if
he fulfilled certain requirements, which included the execution of
a General Release.
(Docket No. 312-7.)
The letter also included
a copy of the General Release to be signed and returned
by
plaintiff, as well as information noting that, under the company’s
Civil No. 08-1424 (FAB)
22
Severance Plan, plaintiff would have been eligible for a payment of
$47,833.
Id.
Plaintiff was informed that he would have 45 days to
review and return the executed General Release.
Id. at 5.
Plaintiff signed an acknowledgment of receipt, certifying that he
had received all the documents mentioned in the August 17, 2007
letter regarding the termination of his employment.
No. 132-8.)
(Docket
On September 14, 2007, Bristol Myers sent Cruz a
letter reminding him that the 45 days he had to return the executed
General Release, in order to obtain benefits, would expire on
September 30, 2007.
(Docket No. 132-1 at 25.)
return the executed General Release.
Plaintiff did not
(Docket No. 94-3 at ¶ 36.)
The Plan Administrator did not receive any administrative claim or
appeal from Cruz, as required under the terms of the Severance
Plan, to claim unpaid benefits under the Plan. (Docket No. 94-18.)
Facts Related to Plaintiff’s Application for a New Position
On or around July, 2007, plaintiff submitted a job bid for the
position of Pharmaceutical Packaging Maintenance Mechanic. (Docket
No. 94-3 at ¶ 37.)
Electronics
or
The position required an associate degree in
Instrumentation
Technology
with
exposition
to
Mechanical environment, Industrial Mechanics Technology, or a Tool
& Die Degree.
at 26.)
(Docket No. 132-1 at ¶ 38; see also Docket No. 132-1
Cruz’s educational background consisted of a high school
diploma, a degree in diesel mechanics from Polytechnic University,
and
vocational
studies
in
welding
and
management
at
the
Civil No. 08-1424 (FAB)
23
Interamerican University and University of Turabo in Caguas.
(Docket
No.
94-4
at
3-4.)
Cruz
did
not
meet
the
explicit
requirements of the position and was therefore not chosen for it.
(Docket No. 94-3 at ¶ 39.)
IV.
Defendants’ Motion for Summary Judgment
A.
Summary Judgment Standard
The Court’s discretion to grant summary judgment is
governed by Rule 56 of the Federal Rules of Civil Procedure.
The
Rule states, in pertinent part, that the court may grant summary
judgment
only
if
interrogatories,
“the
and
pleadings,
admissions
on
depositions,
file,
answers
together
with
to
the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.”
Fed.R.Civ.P. 56(c); see also Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 52. (1st Cir. 2000).
The party moving for summary judgment bears the burden of showing
the absence of a genuine issue of material fact.
See, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once a properly supported motion has been presented, the
opposing party has the burden of demonstrating that a trial-worthy
issue exists that would warrant the court’s denial of the motion
for summary judgment.
For issues where the opposing party bears
the ultimate burden of proof, that party cannot merely rely on the
absence of competent evidence, but must affirmatively point to
Civil No. 08-1424 (FAB)
24
specific facts that demonstrate the existence of an authentic
dispute.
See Suarez v. Pueblo Int’l., Inc., 229 F.3d 49, 53 (1st
Cir. 2000).
In order for a factual controversy to prevent summary
judgment, the contested facts must be “material” and the dispute
must be “genuine.”
Material means that a contested fact has the
potential to change the outcome of the suit under governing law.
The issue is genuine when a reasonable jury could return a verdict
for the nonmoving party based on the evidence.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
that
“[t]he
mere
existence
of
a
scintilla
See Anderson v.
It is well settled
of
evidence”
is
insufficient to defeat a properly supported motion for summary
judgment.
Id. at 252.
It is therefore necessary that “a party
opposing summary judgment must present definite, competent evidence
to rebut the motion.”
Maldonado-Denis v. Castillo-Rodriguez, 23
F.3d 576, 581 (1st Cir. 1994).
In making this assessment, the court “must view the
entire record in the light most hospitable to the party opposing
summary judgment, indulging in all reasonable inferences in that
party’s favor.”
1990).
The
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
court
may
safely
ignore,
however,
“conclusory
allegations, improbable inferences, and unsupported speculation.”
Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990).
Civil No. 08-1424 (FAB)
B.
25
Plaintiff’s Claims Under ERISA
Plaintiff
asserts the
following
claims
under
ERISA:
(1) defendants failed to provide benefits under the Severance Plan
pursuant to 29 U.S.C. § 1132(a)(1); (2) defendants’ actions are a
breach of fiduciary duty pursuant to 29 U.S.C. § 1132(a)(3); and
(3) defendants’
actions
interfered
rights pursuant to 29 U.S.C. § 1140.
with
plaintiff’s
protected
Defendants’ initial argument
is that plaintiff lacks a cause of action under ERISA because he
failed to exhaust administrative remedies before bringing suit in
federal court.
(Docket No. 95 at 4-6.)
To rebut this argument,
plaintiff claims that the Severance Plan is not a bona fide ERISA
plan.3
(Docket No. 137 at 6.)
Plaintiff provides no evidence in
the record of this claim, nor does he provide the Court with any
legal support for the argument that exhaustion of remedies is not
applicable in this case.
Conclusory allegations and unsupported
speculation such as those presented by plaintiff will be ignored by
the Court.
Defendants
3
See Medina-Muñoz, 896 F.2d at 8 (1st Cir. 1990).
have,
however,
provided
the
Court
with
evidence
In support of this proposition and the majority of
plaintiff’s other arguments in plaintiff’s brief, plaintiff cites
to Orsini v. Sec. de Hacienda, 2009 TSPR 190 (2009). This case was
before the Supreme Court of Puerto Rico and was provided to the
Court in Spanish, without an English translation.
It is wellsettled First Circuit law that a party relying on a decision
written in a foreign language “must provide the district court with
and put into the record an English translation of the decision.”
Puerto Ricans for Puerto Rico Party v. Dalmau, 544 F.3d 58, 67 (1st
Cir. 2008). Where the party has failed to do so, as is the case
here, the Court may not consider the documents.
Civil No. 08-1424 (FAB)
26
supporting its claim that the Severance Plan at issue is in fact an
ERISA plan.
(Document No. 132-4 at 13.)
The First Circuit Court of Appeals has held that, as a
general matter, a plaintiff seeking to recover benefits or enforce
rights under an ERISA plan must exhaust available administrative
remedies under their ERISA-governed plans before they bring suit in
federal court.
Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d
821, 825-826 (1st Cir. 1988) (holding that a former employee
seeking disability benefits was required to exhaust administrative
remedies under the plan in the absence of evidence that the plan’s
review procedure would have been futile or inadequate); see also
Medina v. Metropolitan Life Ins. Co., 588 F.3d 41, 47 (1st Cir.
2009) (affirming district court’s finding that plaintiff failed to
exhaust all administrative remedies that the fiduciary provides
because he never submitted a benefits claim for evaluation and
adjudication.)
The
Severance
Plan’s
SPD,
which
plaintiff
does
not
dispute that he received, expressly details information regarding
a
participant’s
right
to file
an
appeal
if
denied
severance
benefits within 60 days after termination, as well as the name and
address of the Plan Administrator to whom such appeal had to be
addressed.
(Docket
Nos.
132-4
at
13-18;
94-18.)
The
Plan
Administrator testified under penalty of perjury that he did not
receive any administrative appeal from plaintiff, and plaintiff
Civil No. 08-1424 (FAB)
does not argue otherwise.
27
See Docket No. 94-18 at 2.
Plaintiff’s
failure to exhaust, or even attempt to navigate through, the
administrative remedies afforded by Bristol Myers through its
Severance Plan results in his failure to state a cause of action
under
ERISA.4
Defendants’
motion
for
summary
judgment
on
plaintiff’s ERISA claims is GRANTED.
4
Plaintiff’s cause of action for a breach of fiduciary duty
pursuant to 29 U.S.C. § 1132(a)(3) fails here, because, as
defendants point out, “[f]iduciary liability claims under ERISA,
however, are not intended to vindicate individual benefit rights,
but rather should be used as instruments to obtain plan-wide
relief.” (Docket No. 95 at 6-7.) Significantly, the First Circuit
Court of Appeals has held that “federal courts have uniformly
concluded that, if a plaintiff can pursue benefits under the plan
pursuant to Section a(1), there is an adequate remedy under the
plan which bars a further remedy under Section a(3).” LaRocca v.
Borden, Inc., 276 F.3d 22, 28-29 (1st Cir. 2002).
Similarly, plaintiff’s cause of action for interference with
protected rights under ERISA pursuant to 29 U.S.C. § 1140 also
fails because plaintiff cannot make a prima facie showing that he
was entitled to ERISA protection because he voluntarily chose not
to sign the General Release, which was a requirement to become
eligible to receive a payment under the Severance Plan.
See
Barbour v. Dynamics Research Corp., 63 F.3d 32, 38 (1st Cir. 1995)
(“[P]laintiff must show that he or she (1) is entitled to ERISA’s
protection, (2) was qualified for the position, and (3) was
discharged under circumstances that give rise to an inference of
discrimination.”); see also Pendleton v. QuikTrip Corp., 567 F.3d
988, 992 (8th Cir. 2009) (upholding district court’s determination
that plaintiff “did not make a prima facie case because he was not
entitled to any benefits under the plain language of the severance
plan.”)
Civil No. 08-1424 (FAB)
28
C.
Plaintiff’s Claim for Discrimination under the
ADEA/Act 100
Plaintiff alleges that he was discriminated against on
the
basis
of
his
age
by
Bristol
Myers
under
both
the
Age
Discrimination in Employment Act (“ADEA”) and Puerto Rico Law 100.
1.
Disparate Treatment
Under the ADEA, it is “unlawful for an employer . .
. to discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.”
29 U.S.C. § 623(a).
Under federal law, an employee has the burden
of proving “that he would not have been fired but for his age.”
Velazquez-Fernandez v. NCE Foods, Inc., 476 F.3d 6, 10-11 (1st Cir.
2007) (internal citations omitted).
Because plaintiff has presented no direct evidence
of discrimination, the Court proceeds under the McDonnell Douglass
burden-shifting regime. See id. Under this regime, plaintiff must
establish a prima facie claim of discrimination by establishing the
following:
“(1) he was at least 40 years old; (2) he met the
employer’s
legitimate
job
performance
expectations;
(3)
he
experienced an adverse employment action; and (4) the employer had
a continuing need for the services provided previously by the
plaintiff.”
burden
Id.
shifts
Once plaintiff has made a prima facie case, the
to
the
employer
to
articulate
a
legitimate,
nondiscriminatory reason for the challenged employment decision.
Civil No. 08-1424 (FAB)
29
Id. (internal citations omitted). If proven, “the final burden of
persuasion rests with the employee to show, by a preponderance of
the evidence, that the reason offered by the employer is merely a
pretext and the real motivation for the adverse job action was age
discrimination.”
Id.
Defendants do not dispute that plaintiff meets the
first three factors.
Defendants argue, however, that plaintiff
fails to establish a prima facie case of discrimination because he
cannot establish the fourth prong of the test.
at 3.)
(Docket No. 125
Where the adverse employment action is based on reductions
in work force, as in this case, a plaintiff must show that the
employer “did not treat age neutrally or it retained younger
persons in the same position.”
51 F.3d 1087, 1091 (1st Cir. 1995).
Woodman v. Haemonetics Corp.,
Cruz was discharged as part of
a reduction in force, where two of the four Corrective Maintenance
Mechanics were terminated from employment, and no one was hired to
replace him.
(Docket Nos. 94-3 at ¶ 32; 94-10 at 5.)
Furthermore,
the two Corrective Maintenance Mechanics who were retained in the
position were both older than plaintiff:
plaintiff was forty-two
at the time of termination, while Pedro Cruz and Daniel Fontanez,
who were retained in the position, were forty-three and fifty years
old, respectively.
(Docket No. 95 at 13.)
Plaintiff alleges that
Bristol Myers’ classification of the four employees that were
evaluated in this decision is erroneous - specifically that the
Civil No. 08-1424 (FAB)
30
individuals who retained employment were not Corrective Maintenance
Mechanics, but welders.
refuses
to
interfere
(Docket No. 137 at 13-14.)
with
the
rationality
or
The Court
merits
of
the
employer’s nondiscriminatory business decisions, including the
occupational classification of its employees. See Fennell v. First
Step Designs, Ltd., 83 F.3d 526, 537 (1st Cir. 1996) (“Courts may
not sit as super personnel departments, assessing the merits-or
even
the
rationality-of
employers’
nondiscriminatory
decisions.”) (internal citations omitted).
business
Because plaintiff has
failed to produce “evidence adequate to create an inference that an
employment
decision
was
based
on
an
illegal
discriminatory
criterion”, he thus fails to establish the fourth element needed to
make out a prima facie case of age discrimination.
Rivera-Aponte
v. Restaurant Metropol #3, Inc., 338 F.3d 9, 11 (1st Cir. 2003)
(citing O’Conner v. Consol. Coin Caterers Corp., 517 U.S. 308, 312
(1996)).
Accordingly, defendants’ motion for summary judgment on
plaintiff’s disparate treatment claims under the ADEA is GRANTED.
2.
Disparate Impact
Plaintiff also alleges a disparate impact claim
under the ADEA, claiming that defendants’ employment practices fall
more harshly upon people in the affected age group (here, people
over 40 years old).
(Docket No. 57 at 10.)
Disparate impact
claims involve “employment practices that are facially neutral in
the treatment of different groups but that in fact fall more
Civil No. 08-1424 (FAB)
31
harshly on one group than another.
Teamsters v. United States,
431 U.S. 324, 335-36, n. 15 (1977).
The Supreme Court has held
that
“the
scope
of
disparate-impact
narrower than under Title VII.”
228, 240 (2005).
liability
under
ADEA
is
Smith v. City of Jackson, 544 U.S.
In order to present a viable disparate impact
claim, a plaintiff must specify the employment practice being
challenged.
See id. (“[I]t is not enough to simply allege that
there is a disparate impact on workers, or point to a generalized
policy that leads to such an impact. Rather, the employee is
‘responsible for isolating and identifying the specific employment
practices
that
are
allegedly
responsible
for
any
observed
statistical disparities[sic].’”) (internal citations omitted).
Plaintiff has failed to identify the specific practice being
challenged,
and
simply
alleges
that
defendant
engaged
in
“subterfuge” and “manipulated the transfer of employees among
production facilities.”
(Docket No. 57 at 10.)
Moreover, it is
clear from the record that defendants’ paired comparison analysis,
used to determine which employees would be terminated, “was based
Civil No. 08-1424 (FAB)
32
on reasonable factors other than age.”5
Smith, 544 U.S. at 241.
Pursuant to company policy, an employee’s seniority would be
considered as the tie-breaker in the decision in the event that two
or more employees fell within the same performance category.
(Docket No. 94-3 at ¶ 18); see also Smith, 544 U.S. at 242
(“Reliance on seniority and rank is unquestionably reasonable . .
.”.)
Plaintiff has provided no evidence that age was in any way
considered as a factor in Bristol Myers’ decision making process
(and the evidence on the record is to the contrary), or that
defendants’ chosen practice was unreasonable.
See Smith, 544 U.S.
at 243 (“Unlike the business necessity test, which asks whether
there are other ways for the employer to achieve its goals that do
not
result
in
a
disparate
impact
on
a
protected
class,
reasonableness inquiry includes no such requirement.”)
5
the
Thus,
Defendant used three independent raters to evaluate
plaintiff and the other Corrective Maintenance Mechanics based on
the following six criteria:
(1) coordinates with all business
partners to provide preventive and corrective maintenance to plant
equipment in compliance with applicable operational procedure
requirements; (2) maintains in good condition all tools and
equipments in his/her responsibility as demonstrated by following
the Corrective Maintenance Program; (3) effectively and timely
determines and corrects equipment malfunctions demonstrated by
timely completion of work force; (4) conducts inspections
periodically in accordance with established procedures; (5)
effectively carries out daily work by compliance with appropriate
procedures and documentation in accordance with cGMP, SOP’s and
safety regulations as applicable; and (6) demonstrates all Core BMS
Behaviors.
(Docket Nos. 94-11; 94-8 at 3; 94-6 at ¶ 7; 94-7
at ¶ 7.)
Civil No. 08-1424 (FAB)
33
defendants’ motion for summary judgment on plaintiff’s disparate
impact claims is GRANTED.
3.
Law 100
In order to make a prima facie case under Law 100,
plaintiff must meet the undemanding burden of “(1) demonstrating
that he was actually or constructively discharged, and (2) alleging
that the decision was discriminatory.”
Velazquez-Fernandez, 476
F.3d at 11. Once plaintiff meets this burden, the burden shifts to
the employer to show, by a preponderance of the evidence, that it
had just cause for its employment action.
See id.
As Law 100 does
not define the term “just cause”, courts have looked to the term’s
definition in Puerto Rico Law 80.
Varela Teron v. Banco Santander
de Puerto Rico, 257 F.Supp.2d 454, 464 (D.P.R. 2003).
Law 80 considers the following to be among the
reasons
constituting
just
cause
for
discharging
an
employee:
“[f]ull, temporarily[sic] or partial closing of the operations of
the establishment”; “[t]echnological or reorganization changes as
well as changes of style, design or the nature of the product made
or handled by the establishment, and changes in the services
rendered to the public”; and “[r]eductions in employment made
necessary by a reduction in the anticipated or prevailing volume of
production, sales or profits at the time of the discharge.”
(citing P.R. Laws Ann. tit. 29 § 185b(d), (e),(f)).
Id.
Law 80 also
provides that in cases of discharge under these sections, the
Civil No. 08-1424 (FAB)
34
employer should follow the principle of seniority within each
occupational classification.
P.R. Laws Ann. tit. 29 § 185c.
In
cases where there is a clear and conclusive difference in favor of
the efficiency or capacity of the workers compared, however, Law 80
maintains that these efficiency or capacity factors shall prevail
in the decision.
See id.
Bristol Myers has shown that it had just cause to
terminate
plaintiff,
for
it
is
undisputed
that
plaintiff’s
termination was a result of Bristol Myers’ decision to close its
Bulk Operations at the Humacao site, a process which entailed a
corporate reorganization that spanned several years.
No. 94-3 at ¶¶ 6-7.)
(Docket
Defendants chose to carry out a paired
comparison analysis of all four Comparative Maintenance Mechanics
in order to determine which employees were most efficient and
capable to continue operations of the company.
Id. at ¶¶ 12-14,
17; see also Docket Nos. 94-6 at ¶ 5; 94-7 at ¶ 5; 94-11.
The
results of the analysis dictated that plaintiff and Merced were the
two
lowest
termination.
at 10.)
ranking
employees,
and
were
therefore
chosen
for
(Docket No. 94-3 at ¶ 23; see also Docket No. 94-3
If, on the other hand, defendants had simply followed the
principle of seniority, plaintiff and Merced would still have been
selected as having the lowest seniority of the four Comparative
Maintenance Mechanics compared.
(Docket No. 94-8 at 9.)
Thus,
regardless of how the case is analyzed, Bristol Myers has complied
Civil No. 08-1424 (FAB)
35
with the requirements of Law 80 to show just cause for its
employment action.
Once an employer has met its burden of showing just
cause, the burden of persuasion returns to the employee to show
“that the employer’s decision was motivated by age discrimination.”
Velazquez-Fernandez, 476 F.3d at 11. This means that the plaintiff
is faced with the same burden of persuasion necessary to bring suit
under the ADEA, which plaintiff has failed to meet.
Therefore,
defendants’ motion for summary judgment on plaintiff’s Law 100
claim is GRANTED.
D.
Plaintiff’s Claim under Act 80
As discussed above with respect to plaintiff’s Law 100
claim, Bristol Myers has proven that Cruz’s discharge was with just
cause, as required under Law 80.
P.R. Laws Ann. tit. 29 § 185b.
Plaintiff was terminated as a result of a corporate reorganization,
which involved the closing, completed in phases, of the Bulk
Operations in Humacao.
The company has followed the principle of
seniority required under Law 80, because, as previously discussed,
plaintiff was the least senior employee out of the four individuals
in
the
occupational
Mechanic.
classification
of
Corrective
Maintenance
Therefore, the defendants’ motion for summary judgment
dismissing plaintiff’s Law 80 claim is GRANTED.
Civil No. 08-1424 (FAB)
E.
36
Plaintiff’s Claims for Breach of Contract
Plaintiff’s final cause of action is for breach of
contract.
Specifically, plaintiff alleges that Bristol Myers
breached a contract with plaintiff that stated that “he would be
part of the last group of employees to leave the company.”
No. 57 at 8.)
(Docket
The Court is not exactly clear as to what “contract”
plaintiff is referring.
Plaintiff must be referring to the letter
sent by Bristol Myers to plaintiff on July 29,2003, notifying him
of his selection to participate in the Retention Bonus Program,
under which plaintiff was eligible for a one-time cash payment
after completing his required service with the Company.
(Docket
No. 94-5.)
The first question the Court must address is whether a
valid contract did in fact exist between the parties.
Plaintiff
asks the Court to infer the existence of a contract of adhesion,
but cites no applicable legal or factual support for this claim.
The Court notes again that “[i]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.”
Zannino, 895 F.2d at 17 (1st Cir. 1990).
Under Puerto Rico law, an essential element of a contract is the
consent of the contracting parties to be bound by it.
See
Marrero-Garcia v. Irizarry, 33 F.3d 117, 122 (1st Cir. 1994); see
also P.R. Laws Ann. tit. 31, 3401 (consent is shown “by the
concurrence of the offer and acceptance of the thing and the cause
Civil No. 08-1424 (FAB)
37
which are to constitute the contract.”)
Additionally, there must
be a “meeting of the minds as to the terms agreed upon.”
K-Mart
Corp. v. Davis, 756 F.Supp. 62, 66 (D.P.R. 1991) (finding that the
parties did not reach a final contract because the text of the
agreement evidenced the defendant’s intent not to be bound until
the
parties
had
finalized
negotiations);
see
also
Soc.
de
Gananciales v. Velez & Asoc., 145 D.P.R. 508, 517 (1998) (holding
that a valid contract requires “a meeting of minds that gave rise
to an obligation, situation, or state of law resulting from an
agreement, and that created certain expectations on the basis of
which the parties acted”).
Thus, an offer standing alone does not
establish the presence of a binding contract.
See Marrero-Garcia,
33 F.3d at 122 (internal citations omitted).
Rather, in order to
have a valid contract, acceptance must be made of the offer.
Id.
The letter notifying plaintiff of the company’s Retention
Bonus Program cannot be considered a valid contract, primarily
because the letter merely informed plaintiff that he was eligible
for a one-time cash payment, the receipt of which was contingent
upon plaintiff performing certain acts.
(Docket No. 94-5 at 2).
Thus, the letter, at best, may be considered an offer.
Moreover,
the letter informed plaintiff that he would be eligible for a cash
payment, the amount of which was contingent on the timing of the
Civil No. 08-1424 (FAB)
38
phase in which plaintiff was selected for termination.6
No. 94-5 at 2.)
(Docket
Notably, the letter is void of any promise of
plaintiff’s continued employment in a particular building or until
a specified date or time.
Id.
Thus, plaintiff’s argument that
because he worked in Building 5, he should have been terminated
during Phase III and received 75% of his annual salary is without
merit. Because plaintiff was selected for termination during Phase
II of the Retention Bonus Program, he was awarded a bonus that was
50% of his annual salary, in full compliance with the terms of the
letter sent to plaintiff.
at ¶ 29; 94-3 at 12.)
(Docket Nos. 94-5 at 2; 132-3; 94-3
Thus, even if some agreement between the
parties could be inferred from the letter sent to plaintiff by the
company, defendant has fully complied with the express terms of the
letter.
The Court finds that there was no valid contract between
the parties, and GRANTS defendants’ motion for summary judgment on
the breach of contract claim.
6
The letter provided that the cash bonus was to be managed
in three phases: (1) Phase I - those selected employees impacted
when completion of the Building 5 process was transferred or
completed would receive three months (25%) of their annual salary;
(2) Phase II - those selected employees impacted when completion of
the Buildings 2 and 29 process was transferred or completed would
receive six months (50%) of their annual salary; and (3) Phase III
- those selected employees impacted when completion of the
Buildings 3 and 5 Sterile processes was transferred or completed
would receive nine months (75%) of their annual salary. (Docket
No. 94-5.)
Civil No. 08-1424 (FAB)
39
CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion
for summary judgment.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, April 15, 2011.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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