Baez-Viera et al v. Cooperativa Abraham Rosa et al
Filing
100
ORDER granting in part and denying in part 35 motion for summary judgment; adopting in part Report and Recommendation re 92 Report and Recommendation. Defendant's Motion for Summary Judgment is DENIED on Plaintiff's claims of ADEA age d iscrimination, PDA retaliation and pregnancy discrimination, and claims under Puerto Rico Laws 69, 80, and 100. Summary Judgment is GRANTED on Plaintiff's claims of PDA and ADEA hostile work environment, ADEA retaliation, and claims under Puerto Rico Law 3. Partial judgment will be entered accordingly. Signed by Judge Jay A Garcia-Gregory on 8/30/2011. (LL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ROSA BÁEZ-VIERA, et al.,
Plaintiff(s)
Civil No. 08-2045 (JAG)
v.
COOPERATIVA ABRAHAM ROSA, et al.,
Defendant(s)
OPINION AND ORDER
Before the Court are Defendant Cooperativa Abraham Rosa‟s
Objections
to
Recommendation
Magistrate
on
Judge
Defendant‟s
Bruce
McGiverin‟s
Motion
for
Report
Summary
and
Judgment.
(Docket No. 93). Defendant objects to the Magistrate Judge‟s
recommendation to deny summary judgment on Plaintiff‟s claims of
age discrimination under the Age Discrimination in Employment
Act
(“ADEA”),
29
discrimination
U.S.C.
and
§
621
et
retaliation
seq.,
claims
under
the
of
pregnancy
Pregnancy
Discrimination Act of Title VII (“PDA”), 42 U.S.C. § 2000e(k),
and related claims under Puerto Rico law.
FACTUAL BACKGROUND
The
Court
takes
the
facts
from
Magistrate
Judge
McGiverin‟s Report and Recommendation. Defendant‟s objections to
the Magistrate Judge‟s findings of fact will be addressed in the
section of this opinion titled “Discussion”.
Civil No. 08-2045 (JAG)
Defendant
“Cooperativa”)
approximately
2
Cooperativa
is
37
a
Abraham
savings
employees.
and
Rosa
credit
Plaintiff
(hereinafter
cooperative
Rosa
Báez
with
Viera,
(hereinafter “Báez”), born on November 10, 1965, worked as a
teller at Cooperativa from May 9, 1997 until her termination on
June 8, 2007. Upon her termination, Báez was 41 years old.
Since 2001, Báez‟s immediate supervisor at Cooperativa was
Lizette
Colón
tellers.
Báez
(hereinafter
was
also
“Colón”),
the
indirectly
supervisor
supervised
superior,
Vice-President
Sol
Matías
“Matías”).
The
were
supervised
latter
two
Cortés
by
for
by
all
Colón‟s
(hereinafter
the
Executive
President, Defendant Luis López Román, (hereinafter “López”).
With the assistance and advice of Matías, Defendant López is the
final decision maker on hiring and firing. Defendant López‟s
ultimate decision to terminate Báez is the object of this suit.
Báez‟s Pregnancies
On May 17, 2006, Báez, then six months pregnant, became ill
at work and told Colón she was feeling agitated and scared.
Colón testified that she told Báez to leave work if necessary.
Báez testified that she was not permitted to leave until other
tellers came back from their lunch breaks, and eventually left
work around midday for her doctor‟s office. Colón did not inform
Defendant López or Matias of Báez‟s departure from work.
Civil No. 08-2045 (JAG)
3
Later that day, Báez gave birth to a premature infant that
died
tragically
three
or
four
days
thereafter.
Báez
took
maternity leave from May 18 to July 13, 2006.
Around February 2007, Báez learned she was pregnant again,
and told her coworkers at Cooperativa. She later miscarried the
pregnancy in May 2007.
While plaintiffs allege that the miscarriage occurred on
Sunday, May 13, 2007 there is conflicting testimony about the
exact
date
and
about
who
informed
Cooperativa
about
the
incident. Báez‟s husband Ortiz testified that on the day of the
miscarriage, Báez called him from her job; he took her to a
clinic,
then
called
miscarriage. However,
Cooperativa
and
informed
Colón
of
the
Báez‟s obstetrician, Dr. Carlos Fonseca
Salgado, testified that he treated Báez at Pavia Hospital on
that day, and that the clinic where he had been seeing Báez is
not open on Sundays. According to Báez, she was home that Sunday
when she started bleeding, so she went to her doctor‟s office.
Upon finding it closed, she called Dr. Salgado, who met her at
Pavia‟s emergency room (“ER”). At the ER, Dr. Salgado examined
Báez and could not find a fetal heartbeat.
Báez testified that she went home that night, but that the
next morning, Monday, May 14, she went to the clinic and was
sent to Pavia‟s ER. There, she learned she had miscarried the
Civil No. 08-2045 (JAG)
pregnancy
and
procedure.
underwent
Báez
4
a
testified
dilation
that
she
and
curettage
called
(“D
Cooperativa
&
C”)
before
entering the ER. According to an affidavit by Báez, she informed
Cooperativa she would miss work that day due to the D & C and
later called back to give Colón an update, since Cooperativa
requires employees to contact their direct supervisor to inform
them of absences. However, according to Báez, she was informed
that she had to speak to Matías instead. When the call was
transferred to Matías, Matías, according to Báez, aggressively
asked Báez when she would be returning to work and suggested she
get a doctor‟s clearance to return to work.
The
next
doctor‟s
day,
office
to
Tuesday,
get
May
cleared
15,
for
2007,
work.
Báez
visited
Accordingly,
her
Dr.
Salgado issued a pre-signed “Disability Certificate,” which he
authorized his secretary to fill out. Dr. Salgado testified,
based on the certificate, that Báez was cleared to return to
work on May 15, 2007. Báez returned to work on May 16, 2007,
after two days of maternity leave, still bleeding heavily from
the
D
&
Certificate
C
procedure.
that
day,
Cooperativa
but
because
received
the
end
the
date
Disability
for
Báez‟s
incapacity had been left blank on the certificate, Matías spoke
with Dr. Salgado‟s secretary and had his office fax Cooperativa
an amended certificate that reflected an end date of May 15,
Civil No. 08-2045 (JAG)
5
2007. Matías testified that the blank date needed to be filled
out in order to pay Báez two days‟ maternity leave. The parties
dispute
whether
Báez
authorized
the
amendment
to
the
certificate. Dr. Salgado was not involved in the issuance of the
amended
certificate
and
testified
that
he
did
not
remember
authorizing his secretary to fill in the end date.
Báez attests she returned to work so promptly because she
feared she would be fired if she did not. Colón testified that
Báez
told
her
she
returned
to
work
so
quickly
after
the
miscarriage because she had had many absences in the preceding
months and did not want to continue missing work. According to
Sherley
Pagán
Díaz
(hereinafter
“Pagán”),
a
teller
at
Cooperativa since 1999, López was annoyed by Báez‟s absences.
According
to
Jamillette
Delgado
Martínez
(hereinafter
“Delgado”), also a teller, female employees thought it bad to
become
pregnant
because
the
administration
at
Cooperativa
frowned on the resulting absences and consequent costs.
On her return to work, Báez‟s coworkers, including Matías,
asked
whether
she
intended
to
become
pregnant
again.
She
expressed, as she had after losing the previous pregnancy, that
she would. Though Defendant López denies knowledge of Báez‟s
plans,
according
to
Pagán,
knowledge at Cooperativa.
Báez‟s
intentions
were
common
Civil No. 08-2045 (JAG)
6
During the period between January 1, 2006 and June 8, 2007,
Báez was the only teller to become pregnant. Báez took two weeks
of previously-scheduled vacation time from May 21 to June 4,
2007. She returned to work the week of June 4, 2007.
Báez‟s 2007 Performance Evaluation and Subsequent Termination
Colón begins the process of annual employee evaluations by
preparing a draft using a standard form for each teller. After
observations
and
suggestions
by
Vice
President
Matías,
Colón
prepares the final version of the evaluation and submits it to
the
Executive
President,
Defendant
López.
The
Executive
President reviews the evaluation and includes his comments for
discussion
changes
with
to
the
the
employee‟s
evaluation.
The
supervisor;
employee‟s
he
may
direct
also
make
supervisor
discusses the evaluation with the employee only after Defendant
López‟s revision.
Colón provided Báez with a copy of her annual evaluation
for
2007
sometime
between
May
16
and
June
7,
2007.
The
evaluation gave Báez an overall score of “poor,” which Báez had
never before received, and which Colón had never before given a
teller. Báez was graded as “average” in the areas of “knowledge,
skill,
and
ability,”
“performance
and
productivity,”
and
“quality,” but “poor” in “compliance” and “responsibility,” two
areas in which she had been graded “good” in her last three
Civil No. 08-2045 (JAG)
evaluations.
According
7
to
López,
the
evaluation‟s
section
on
“compliance,” along with memoranda in Báez‟s employee file about
her
failure
to
follow
procedures,
reflected
Cooperativa‟s
progressive need to correct for account imbalances caused by
Báez‟s errors. Báez signed the evaluation and did not express
her
internal
disagreement
with
its
contents,
as
she
feared
reprisal from Cooperativa‟s administration if she did not sign
it. Báez had not expressed disagreement with previous years‟
evaluations, although her 2004, 2005, and 2006 evaluations had
noted
her
need
to
improve
performance,
productivity,
and/or
attendance. Aside from a “poor” score in the area of “attendance
and punctuality” in 2006, Báez‟s previous three evaluations gave
her area scores that were mostly “good” or “excellent” in 2004
and 2005 and “average” or “good” in 2006, amounting to overall
scores
of
“average”
or
“good.”
Báez
had
received
salary
increases in 2000, 2002, 2003, 2004, and 2005.
Colón testified that when she met with Matías about Báez‟s
evaluation, Matías made notes on Colón‟s draft and said that due
to the losses Báez had caused through register discrepancies,
the “average” rating Colón had initially given Báez was wrong.
Colón testified that Matías suggested changes in the areas of
“compliance” and “responsibility,” in which Colón had rated Báez
as “average”. Matías asked Colón to incorporate the suggested
Civil No. 08-2045 (JAG)
8
changes, which Colón did, resulting in a final overall rating of
“poor” rather than the “average” overall score Colón testified
Báez would have received but for Matías‟s changes. Cooperativa‟s
management
had
never
previously
changed
one
of
Báez‟s
evaluations to reflect a “poor” score.
Defendant López approved Báez‟s evaluation without making
any changes. According to López, it was his understanding that
Colón alone prepared the evaluation.
Matías and Cooperativa‟s attorney met briefly with Báez at
the end of the business day on Friday June 8, 2007, and handed
her a letter of termination signed by Defendant López. According
to the letter, Báez was terminated as a result of her latest
evaluation, which, the termination letter noted, graded her as
“poor”
in
execution
and
performance,
meaning
she
“did
not
fulfill the institutional expectations or the requirements of
the
position.”
restructuring
The
letter
efforts
at
does
not
mention
Cooperativa.
any
Pagán
layoffs
testified
or
that
before her dismissal, Báez had cleaned out her desk drawer and
taken out her belongings in anticipation of being fired.
Matías testified that Cooperativa terminated Báez because,
starting in the year 2000, the incidence of Báez‟s procedural
mistakes
Matías
and
noted
register
that
deficiencies
Báez‟s
shortages
increased.
increased
Particularly,
drastically
in
Civil No. 08-2045 (JAG)
9
2007, amounting to $700 by May. Matías testified that she met
with Báez once or twice in early 2007 about her errors and
warned Báez that, despite repeated admonitions, she was still
being
given
testified
an
that
opportunity
she
only
to
improve
remembers
her
record.
Cooperativa
giving
Colón
Báez
written warnings on January 10 and February 1, 2007. Báez was
never suspended during the ten years she worked for Cooperativa.
Cooperativa did not provide Báez with any additional job
training in 2007 after her errors. Matías testified that Báez
had already been trained, had vast experience as a teller, and
knew all of Cooperativa‟s procedures. Matías believes Báez to
have been one of Cooperativa‟s most experienced tellers.
It
is
not
uncommon
for
tellers
to
occasionally
make
mistakes that result in register discrepancies, such as coming
up short on cash at the end of a shift. Colón prepares a monthly
report of all tellers‟ transactions that lists each teller‟s
errors and the sum of any discrepancies. Pagán, who is 36 years
old, testified that in April 2007, her register came up short by
nearly $500, but she was not fired or suspended, nor did she
receive a “poor” annual evaluation. According to teller Maritza
Ramos,
who
started
discrepancies
in
Ramos
that
stated
working
tellers‟
she
at
registers
had
a
Cooperativa
are
register
a
around
common
shortage
2003,
occurrence.
of
$450
in
Civil No. 08-2045 (JAG)
10
September 2005 and that another error by her in September 2007
caused a loss to Cooperativa of $2,000. Ramos stated that she
received memos from Cooperativa about both incidents. She is
still employed by Cooperativa. Nonetheless, according to Colón,
there have been instances when Cooperativa tellers have been
terminated after a written admonishment due to discrepancies in
their registers.
Around May 2007, shortly before Báez‟s termination, Colón
had
requested
employee
to
an
additional
replace
a
part-time
teller
employee,
who
had
and
decided
to
another
leave
Cooperativa. While Báez was on vacation, Matías had an ad for a
teller placed in the newspaper. Evenid Aponte responded to the
ad, and Cooperativa hired her as a new teller and started her on
the
job
on
Tuesday,
June
12,
2007,
five
days
after
Báez‟s
termination. Cooperativa had decided to hire Aponte prior to
June 11, 2007. On the day she was hired, Aponte was 30 years old
and was not pregnant. On October 22, 2007, Cooperativa hired
Fatima Ramos as a teller. Ramos was 24 years old and was not
pregnant
when
hired.
Báez
herself
was
substituted
by
Irmary
Mercado, who began working at Cooperativa at the end of July
2007. Mercado was not yet 30 years old, and was not pregnant
when hired. Colón testified that she did not know exactly who
Civil No. 08-2045 (JAG)
substituted
Báez,
but
11
it
is
undisputed
that
none
of
her
replacements were pregnant or over forty years of age.
Cooperativa‟s Disciplinary Practices
The disciplinary process at Cooperativa is initiated by the
employee‟s
direct
supervisor,
who
takes
the
employee‟s
file,
including a record of all the incidents of non-compliance by the
employee,
to
the
Vice-President
Cooperativa
management
then
disciplinary
action
take
to
of
investigates
after
Operations,
and
consulting
Matías.
decides
with
its
what
labor
counsel. It is also Matías who informs the employee of his or
her termination, and hands the employee a letter of termination.
Matías only makes recommendations on the matter of terminating
employees; the ultimate decision is Defendant López‟s, who signs
the letter of termination. Indeed, López testified that he made
the decision to terminate Báez.
In 1999, Báez received a copy of Cooperativa‟s “Employee‟s
Informative
Manual”
(“Manual”),
and
she
received
a
revised
edition of the Manual in 2005. She was given an orientation on
the
Manual
contents.
and
affirmed
that
she
read
and
understood
its
The Manual states that an employee who receives a
grade of “poor” on the annual evaluation will begin a threemonth probationary period at Cooperativa and will be informed of
improvement
alternatives
and
the
consequences
of
not
showing
Civil No. 08-2045 (JAG)
12
significant improvement during that period. Báez was not given
the probationary period before her termination.
However, the Manual also states that there are actions an
employee
can
corrective
take
that
measures
have
can
entail
not
been
termination
effective
if
or
if
previous
it
is
warranted by the severity of the event. Among these events is
the failure “to comply with the procedures of inactive account
[sic]
and
the
protection
and
management
of
transactions
and
custody of cash and values and norms of institutional security.”
Matías
testified
violation,
and
that
that
Báez
Báez‟s
was
terminated
termination
for
letter
just
such
included
a
the
“concept” of that section of the Manual, although it did not
cite the Manual specifically. Matías testified that Cooperativa
had not invoked that section of the Manual to terminate Báez
earlier
in
2007,
because
they
had
decided
to
give
Báez
an
opportunity to improve her record. However, Matías testified, by
the time of her annual evaluation, Báez‟s losses had reached an
intolerable level, and the decision was made to terminate Báez.
Cooperativa‟s
Alleged
Treatment
of
Báez
and
Other
Pregnant
Employees
Báez
and some
of her coworkers have stated that during
Báez‟s pregnancies, Defendant López repeatedly made comments to
Báez about her being pregnant at her age. According to Báez,
Civil No. 08-2045 (JAG)
13
López would frequently comment that “any child [Báez] may give
birth to would call [Báez] grandmother instead of mother.” Colón
indeed testified that Báez once told her that López had made a
similar
comment.
However,
according
to
Colón,
Báez
never
complained to her of being discriminated against by López during
any of her pregnancies. Colón testified that she did not hear
López make such comments to Báez, has not heard of such comments
from any other employees, and has never observed discriminatory
conduct
at
Cooperativa
toward
pregnant
employees.
Colón
also
mentioned that a teller who was pregnant had been hired at some
point, but could not recall when. Matías also testified that she
had not heard López make any remarks on Báez‟s pregnancy or age.
Delgado testified that Defendant López made fun of Báez‟s
age before and during her pregnancy, and that he would make
mocking comments to Báez in front of other employees. According
to Delgado, López‟s comments included multiple variations on the
theme of whether Báez would be a mother or a grandmother, the
remark “[w]hen you are vomiting it will not be known whether it
is because you are pregnant or due to menopause”, and negative
comments about Báez‟s appearance while pregnant. Báez appeared
to Delgado to be calm and patient in response to the comments,
whose dates Delgado could not remember, though she testified she
learned of at least one such comment per day. Delgado testified
Civil No. 08-2045 (JAG)
14
that López did not mock any other workers. Delgado testified
that she did not report López‟s comments because she felt that
the supervisor would not do anything about it, and that despite
the frequency of López‟s comments, no one asked him to stop.
According to Delgado, during Báez‟s first pregnancy, two other
younger Cooperativa employees, neither of whom was a teller,
were
also
pregnant.
Delgado
testified
that
those
employees
received passes to use the building‟s elevator; Báez did not.
Delgado
testified
that
though
she
did
not
witness
any
discriminatory conduct towards the other two pregnant employees,
they were transferred to other roles due, she thought, to their
pregnancies. Finally, Delgado testified that López once told her
there was an epidemic
Delgado
whether
she
of pregnancy at Cooperativa and asked
was
“operated”
(i.e.,
had
had
a
tubal
that
Defendant
López
became
pregnant.
Pagán
ligation).
Pagán
treated
testified
Báez
that
differently
she
observed
after
Báez
testified that during Báez‟s first pregnancy, López would come
to
the
tellers‟
area
to
intended in jest. Pagán
make
also
jokes
and
offensive
comments
testified that she heard López
comment to Báez that she was too old to have children, and ask
whether
the
grandmother.
child‟s
schoolmates
would
call
Báez
mother
or
Civil No. 08-2045 (JAG)
15
Colón testified that during her own pregnancy, before she
became a supervisor, she received an accommodation at her teller
station.
Pagán
testified
that
her
experience
at
Cooperativa
during her pregnancy was normal; she was never humiliated and
her job functions were not changed. Elizabeth Sánchez García
(hereinafter “Sánchez”), a teller at Cooperativa from 1996 until
1999, took a leave of absence from Cooperativa during her last
three months of pregnancy and testified that she experienced no
improper or discriminatory conduct at work. On the other hand,
former teller Norma Vázquez (hereinafter “Vázquez”), who worked
at Cooperativa from 1994 to 1996, stated in an affidavit that
when López learned she was pregnant, he asked her to resign.
Procedural History
In December 2007, Báez filed a charge of discrimination
with the Equal Employment
Opportunity
Commission
(hereainfter “EEOC”), and Cooperativa and López filed a response
to Báez‟s charge. López stated in an affidavit to the EEOC that
Báez
was
terminated
Cooperativa‟s need
regulatory
entailed
to
make
compliance
reducing
adjustments
due
and
the
included
to
her
poor
adjustments
to
maintain
workforce
terminating
and
Báez,
in
performance,
order
to
competitiveness,
operating
whose
costs.
and
ensure
which
These
performance
had
Civil No. 08-2045 (JAG)
16
caused Cooperativa economic
losses.
The
EEOC
issued
Báez
a
right-to-sue letter in June 2008.
Plaintiffs
2008,
alleging
employment
law
filed
the
instant
complaint
several
claims
under
against
Cooperativa
on
federal
and
September
and
other
Puerto
defendants.
15,
Rico
The
Court dismissed several of the claims with orders on motions to
dismiss.1 The remaining claims are the subject of Defendants‟
Motion for Summary Judgment, (Docket No. 35) which was referred
to Magistrate Judge McGiverin for a Report and Recommendation on
March
24,
2010.
(Docket
No.
89).
Now
before
the
Court
are
Defendants‟ objections to Magistrate Judge McGiverin‟s findings
and recommendations. (Docket No. 93).
STANDARD OF REVIEW
Review of Magistrate Judge‟s Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)
and
Local
Rule
503,
a
district
court
may
refer
dispositive
motions to a United States magistrate judge for a report and
recommendation. See Alamo Rodriguez v. Pfizer Pharmaceuticals,
Inc., 286 F. Supp. 2d 144, 146 (D.P.R. 2003). The adversely
affected party may “contest the [m]agistrate [j]udge‟s report
1
Dockets No. 31 & 91. The Court adopts the Magistrate Judge‟s recommendation
to dismiss the Ortiz-Báez Conjugal Partnership‟s derivative claims under
Articles 1802 & 1803 of the Civil Code Puerto Rico, since Ortiz‟s claims,
also derivative, were voluntarily dismissed as time barred. In any case,
Plaintiff made no objection to this recommendation by Magistrate Judge
McGiverin.
Civil No. 08-2045 (JAG)
and
recommendation
being
served‟
by
with
a
17
filing
copy
objections
of
the
„within
order.”
ten
United
days
of
States
v.
Mercado Pagán, 286 F. Supp. 2d 231, 233 (D.P.R. 2003) (citing 28
U.S.C.
§
636(b)(1)).
district judge shall
If
objections
“make a
de
novo
are
timely
filed,
the
determination of those
portions of the report or specified findings or recommendation
to which [an] objection is made.” Rivera-De-Leon v. Maxon Eng‟g
Servs., 283 F. Supp. 2d 550, 555 (D.P.R. 2003). A district court
can
“accept,
findings
or
reject,
or
modify,
recommendations
made
in
whole
by
the
or
in
part,
magistrate.”
the
Alamo
Rodriguez, 286 F. Supp. 2d at 146 (citing Templeman v. Chris
Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985)). However, if the
affected party fails to timely file objections, the district
court can assume that it has agreed to the magistrate judge‟s
recommendation. Id.
Motion for Summary Judgment
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a)3; Meléndez v. Autogermana, Inc., 622 F.3d
46, 49 (1st Cir. 2010). The intention of summary judgment is to
“pierce the pleadings and to assess the proof in order to see
Civil No. 08-2045 (JAG)
18
whether there is a genuine need for trial.” Matsushita Elec.
Indus.
Co.
v.
Zenith
Radio
Corp.,
475
U.S.
574,
587
(1986)(quoting Fed. R. Civ. P. 56(e)). “Once the moving party
has properly supported [its] motion for summary judgment, the
burden shifts to the nonmoving party, with respect to each issue
on which [it] has the burden of proof, to demonstrate that a
trier of fact reasonably could find in [its] favor.” SantiagoRamos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st
Cir. 2000) (quoting DeNovellis v. Shalala, 124 F.3d 298, 306
(1st Cir. 1997)); Cruz-Claudio v. García Trucking Serv., Inc.,
639 F. Supp. 2d 198, 203 (D.P.R. 2009.)
“[T]he
between
the
mere
existence
parties
will
of
some
not
defeat
alleged
an
factual
otherwise
dispute
properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Carrol v.
Xerox Corp., 294 F.3d 231, 236-37 (1st Cir. 2002) (quoting J.
Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc.,
76
F.3d
1245,
allegations
1251
[nor]
(1st
Cir.
improbable
1996))(“„[N]either
inferences‟
are
conclusory
sufficient
defeat summary judgment.”)
An issue is “genuine” if the evidence of
record permits a rational factfinder to
resolve it in favor of either party. See
Medina-Muñoz v. R.J. Reynolds Tobacco Co.,
to
Civil No. 08-2045 (JAG)
19
896 F.2d 5, 8 (1st Cir. 1990). A fact is
“material” if its existence or nonexistence
has the potential to change the outcome of
the suit. See Martínez v. Colón, 54 F.3d
980, 984 (1st Cir. 1995).
Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4-5 (1st
Cir. 2010).
The nonmoving party must produce “specific facts showing
that
there
is
a
genuine
issue
for
trial.”
Matsushita
Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587 (quoting Fed.
R. Civ. P. 56(e)); see also López-Carrasquillo v. Rubianes, 230
F.3d 409, 413 (1st Cir. 2000); Amira-Jabbar v. Travel Servs.,
Inc., 726 F. Supp. 2d 77, 84 (D.P.R. 2010).
DISCUSSION
Plaintiff Báez explicitly states that she has no objection
to Magistrate Judge McGiverin‟s recommendation to dismiss her
claims
of
hostile
work
environment
under
ADEA
and
PDA,
retaliation under ADEA, and her claim under Puerto Rico Law 3.
Therefore, after review of Magistrate Judge McGiverin‟s grounds
for dismissal, the Court agrees with the recommendation, and
grants summary judgment dismissing these claims.
As a preliminary matter, we address Plaintiff‟s objection
to
Magistrate
Judge
McGiverin‟s
finding
that
Plaintiff‟s
statement of uncontested material facts, (Docket No. 58-2), and
supplemental statement of uncontested material facts, (Docket
Civil No. 08-2045 (JAG)
20
No. 66), do not comply with Local Rule 56(c) and thus do not
properly controvert the facts set out by Defendants, and the
Magistrate
Judge‟s
decision
to
disregard
Plaintiff‟s
amended
opposing statement of uncontested material facts. (Docket No.
83).
Local
Rule
56(c)
requires
of
a
litigant
submitting
an
opposing statement of material facts that it must “admit, deny
or qualify the facts supporting the motion for summary judgment
by reference to each numbered paragraph of the moving party‟s
statement of material facts. Unless a fact is admitted, the
opposing statement shall support each denial or qualification by
a record citation as required by this rule.” Local Rule 56(c).
As to Plaintiff‟ statement of uncontested material facts
and
supplemental
plainly
agree
statement
with
the
of
uncontested
Magistrate
Judge‟s
material
facts,
determination
we
that
neither document meets the rigors of Local Rule 56(c). Plaintiff
Báez‟s statement of uncontested material facts, (Docket No. 582),
attempts
to
dispute
Defendant‟s
statement
of
uncontested
material facts by merely listing those facts that she is willing
to stipulate, and stating that it disputes the rest; nothing
more. Plaintiff‟s supplemental statement, (Docket No. 66), adds
a few facts, but does nothing to cure the defect in the original
statement. Plaintiff made no attempt to cite to the record, or
Civil No. 08-2045 (JAG)
21
to dispute each fact individually by paragraph number, a clear
violation of Local Rule 56(c).
Plaintiff argues in essence that the purpose of Local Rule
56(c) is not to penalize litigants, but to make sure that the
record
before
Plaintiff
Báez
the
Court
argues,
is
she
organized
ultimately
and
coherent.
submitted
an
Here,
amended
statement of facts that did comply with Rule 56(c), (Docket No.
83), but the Magistrate Judge chose to disregard it. This is too
severe a measure for Plaintiff, given the fact that at times
parties
are
allowed
to
amend
their
statements
of
facts
if
needed.
Plaintiff is correct that the purpose of Local Rule
56(c)
is
not
to
punish
litigants.
The
Magistrate
Judge‟s
disregard of Plaintiff‟s statement of facts is one consequence
of disobeying Local Rule 56(c); it is an enforcement mechanism
that Plaintiff brought upon herself, and that the Court must
resort to in order to ensure that the purpose of Rule 56(c) is
achieved.
Plaintiff is also correct that parties are at times allowed
to
amend
their
statements
requested
leave
to
amend
of
her
fact.
However,
statement.
Plaintiff
Instead,
only
never
after
having the benefit of Defendant‟s objection to her inadequate
statement of facts, (Docket No. 69), did Plaintiff attempt to
Civil No. 08-2045 (JAG)
22
amend them. Plaintiff‟s attempt at curing the defect did not
come in the form of moving the Court for leave to amend her
statements,
but
instead
Plaintiff
submitted
an
entirely
new
statement of uncontested material facts, disguised as a surreply. The Court will not approve of this barefaced attempt at
circumventing proper and timely compliance with the Local Rules,
by
effectively
giving
Plaintiff
another
turn
at
the
bat.
Plaintiff‟s opposition to Defendant‟s facts is inadequate under
Local Rule 56(c) and will thus not be taken into account. See
Martinez Burgos v. Baxter, No. 10-1372, slip op. at 2-4 (1st Cir.
Aug. 26, 2011).
As to Defendant‟s objections, Defendant Cooperativa objects
to Magistrate Judge McGiverin‟s denial of summary judgment on
Plaintiff‟s claim of ADEA age discrimination. Defendant argues
that
the
denial
of
summary
judgment
on
the
ADEA
age
discrimination claim is premised on the Magistrate Judge‟s error
in finding that Cooperativa did not cite to record evidence of
Pagán‟s
overcome
or
Báez‟s
Báez‟s
written
showing
warnings
that
she
and
was
therefore
similarly
could
not
situated
to
Pagán, but treated differently.
Defendant did cite to Báez‟s admonishment of February 2005,
albeit incorrectly. Nonetheless, the
objection is irrelevant.
Disparate treatment is but one of the avenues that Plaintiff
Civil No. 08-2045 (JAG)
23
used to show that the purported reason for her termination was
pretextual, and that the true motivation was her age.
López constantly made offensive and embarrassing comments
regarding Báez‟s age and pregnancy. Considering the fact that he
admittedly is the final decision maker on firing employees, his
comments
alone
whether
the
are
true
enough
reason
to
create
behind
a
her
triable
issue
dismissal
was
as
to
Báez‟s
allegedly deficient work performance, or if that was only a
pretext
to
fire
her
because
of
her
age.
Santiago-Ramos
v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000).
Plaintiff
Báez
inconsistencies
in
also
established
Cooperativa‟s
pretext
proffered
by
pointing
reasons
for
out
her
dismissal. Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424,
432 (1st Cir. 2000). Defendant Cooperativa has maintained that
Báez‟s poor work performance is what led to her termination.
However, after the litigation commenced, López stated that Báez
was also terminated due to Cooperativa‟s need to cut costs and
downsize the workforce. Downsizing or cost cutting measures were
not mentioned in Báez‟s letter of termination. This apparent
inconsistency can support an inference of pretext by the jury.
Velez
v.
Thermo
King,
585
F.3d
Santiago-Ramos, 217 F.3d at 56.
441,
449
(1st
Cir.
2009);
Civil No. 08-2045 (JAG)
The
Court
Plaintiff
triable
has
issue
agrees
come
on
24
with
forth
whether
Magistrate
with
enough
Judge
McGiverin
evidence
Cooperativa‟s
to
purported
that
create
reason
a
for
terminating Báez was pretextual, and whether the true reason for
her discharge was her age.
Defendant‟s Motion for Summary Judgment is denied as to
Plaintiff‟s claim of age discrimination under ADEA.
Defendant
recommendation
next
to
objects
deny
to
summary
Magistrate
judgment
Judge
on
McGiverin‟s
Plaintiff‟s
PDA
pregnancy discrimination claim. Cooperativa again alleges that
Báez
has
not
establish
that
met
her
the
burden
reason
of
bringing
given
for
forth
her
evidence
termination
to
was
pretextual. Defendant again focuses on the Magistrate Judge‟s
decision to not take into account Plaintiff‟s shortcomings in
showing
disparate
treatment
between
her
and
other
pregnant
employees at Cooperativa.
Defendant‟s argument here is also unavailing. Magistrate
Judge
McGiverin‟s
decision
to
not
devote
attention
to
Defendant‟s attempt to discredit evidence of disparate treatment
is not hard to understand.2
2
Evidence of two other Cooperativa employees, Aida and Anesely, who were
pregnant
during
their
time
at
Cooperativa
and
were
allegedly
not
discriminated against was not considered by the Magistrate Judge because they
were not tellers, and thus were not similarly situated to Báez. Velez v.
Thermo King de Puerto Rico, Inc., 585 F.3d 441, 451 (1st
Cir. 2009). The
Court makes no ruling on whether these employees were similarly situated to
Civil No. 08-2045 (JAG)
25
The Court again points towards Defendant López‟s repeated
distasteful and insulting comments on Báez‟s age, pregnancy and
intentions of becoming pregnant, and we hold they are sufficient
to allow an inference that the reasons given for her termination
were
pretextual.
Santiago-Ramos,
217
F.3d
at
55.
On
one
particular occasion, López apparently remarked that if Báez were
to
vomit,
it
would
not
be
known
whether
the
cause
of
regurgitation would be menopause or her pregnancy.
Plaintiff has also met her burden of proffering evidence of
pretext,
by
showing
temporal
proximity
between
the
protected
trait and the adverse employment action. Smith v. F.W. Morse &
Co., Inc., 76 F.3d 413, 425 (1st Cir. 1996). Here, Báez was
terminated
only
about
three
weeks
after
her
May
2007
miscarriage, maternity leave and expression of intent to become
pregnant
again.
inference
the
The
Court
temporal
draws
proximity
in
favor
of
is
evident,
and
Plaintiff.
this
Leary
v.
Dalton, 58 F.3d 748, 751 (1st Cir. 1995); Morissey v. Boston Five
Cents Sav. Bank, F.S.B., 54 F.3d 27, 31 (1st Cir. 1995).
Summary
Judgment
is
denied
as
to
Plaintiff‟s
Title
VII
pregnancy discrimination claim.
Defendant
also
objects
to
Magistrate
Judge
McGiverin‟s
recommendation to deny summary judgment on Plaintiff‟s claim of
Báez, considering that the same result is reached regardless of the
Magistrate Judge‟s decision to not take into account the testimony regarding
Aida and Aenesely.
Civil No. 08-2045 (JAG)
26
PDA retaliation averring that the Magistrate Judge is mistaken
in that the Report and Recommendation confuses the analyses for
PDA
pregnancy
discrimination
and
PDA
retaliation
as
being
identical.
The
Magistrate
Judge
is
not
mistaken.
The
Report
and
Recommendation does not purport that the analyses for “disparate
treatment
pregnancy
discrimination”
under
PDA
and
for
retaliation under PDA are identical.
First of all, although it is at times referred to that way,
disparate treatment is not a claim, it is one way, among others,
to establish a claim of discrimination under Title VII. Second,
while
the
elements
of
a
prima
facie
claim
of
pregnancy
discrimination and one for retaliation under PDA are different
indeed, once this initial hurdle is overcome, a plaintiff may
use the same evidence to establish pretext and discriminatory
animus. Finally, a retaliation claim under both ADEA and PDA, as
the Magistrate Judge correctly states in the Report, both entail
the
same
Title
VII
analytical
framework.
Compare
Bennett
v.
Saint-Gobain Corp, 507 F.3d 23, 32 (1st Cir. 2007) and SantiagoRamos, 217 F.3d at 57. Perhaps that is the source of Defendant‟s
confusion.
To be sure, a Plaintiff can establish a prima facie case of
retaliation
under
PDA
by
showing
that:
(1)
she
engaged
in
Civil No. 08-2045 (JAG)
27
conduct that Title VII protects; (2) she suffered an adverse
employment
action;
and
(3)
the
adverse
action
is
causally
connected to the protected activity. Santiago-Ramos, 217 F.3d at
57; Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d
43,
47
(1st
Cir.
1998).
Báez
was
terminated
shortly
after
returning from maternity leave after her miscarriage; maternity
leave is protected activity under Title VII. F.W. Morse & Co.,
Inc., 76 F.3d at 424. Temporal proximity is enough to establish
a
causal
connection
in
a
Title
VII
prima
facie
retaliation
claim, which Plaintiff has also shown. Calero-Cerezo v. U.S.
Dep‟t of Justice, 355 F.3d 6, 25-26 (1st Cir. 2004). Finally,
though
Defendant
adduces
a
legitimate
reason
for
Báez‟s
termination, as explained above, Plaintiff has proffered enough
evidence
to
show
that
whether
the
reason
given
for
her
termination is pretextual or not, is a matter best left for the
jury.
Summary judgment is denied on Plaintiff‟s PDA retaliation
claim.
Defendant
McGiverin‟s
F.3d
607,
Cooperativa
reliance
611-612
on
(1st
objects
Landrau-Romero
Cir.
Defendant‟s
administrative
argument
not
is
also
entirely
2000),
exhaustion
to
v.
to
Magistrate
Banco
Popular,
recommend
argument.
comprehensible,
from
Judge
denial
Though
what
best
212
of
the
the
Civil No. 08-2045 (JAG)
Court
can
gather,
Defendant
28
argues
that
Landrau-Romero
is
a
racial discrimination case not applicable to Báez‟s claims of
age and pregnancy discrimination.
The argument is inapposite. The language of the holding in
Landrau-Romero is clearly broad enough to encompass all Title
VII claims of discrimination, and not only those based on race.
While elaborating on the issue of when the clock begins to
run on claims of workplace discrimination, Judge Campbell refers
to
Title
VII
discrimination
generally,
particularly.
and
not
to
claims
Landrau-Romero,
of
212
racial
F.3d
607.
Furthermore, the elements of a cause of action for Title VII
racial discrimination mirror those for a prima facie claim under
ADEA, and PDA. Compare Benoit v. Technical Mfg. Corp., 331 F.3d
166, 173 (1st Cir. 2003); González v. El Día, Inc., 304 F.3d 63,
68 (1st Cir. 2002); and Smith v. F.W. Morse & Co., Inc., 76 F.3d
413, 421 (1st Cir. 1996). Should the running of the statute of
limitations
be
any
different?
We
think
not.
In
any
case,
Landrau-Romero is sound reasoning and the Court will abide by
it.
Before opening the gates of the court, a Title VII claimant
is initially required to file his claim before the EEOC, or the
appropriate state agency within 300 days of the alleged adverse
employment
action.
Landrau-Romero
v.
Banco
Popular,
212
F.3d
Civil No. 08-2045 (JAG)
29
607, 611-612 (1st Cir. 2000);
Bonilla v. Muebles J.J. Alvarez,
Inc., 194 F.3d 275, 278 (1st Cir. 1999). Plaintiff Báez was
terminated on June 8, 2007. She filed her claim before the EEOC
on December 7, 2007, well within the required 300 day period.
Her claim is not time barred.
Finally, Defendant objects to Magistrate Judge McGiverin‟s
recommendation to deny summary judgment on Plaintiff‟s Puerto
Rico law claims under Law 69, Law 80 and Law 100.
Regarding Defendant‟s argument on the Magistrate Judge‟s
recommendation to
deny summary judgment on Laws 69
and 100,
Cooperativa merely states that “a review of the evidence in the
present case demonstrate[sic] that the plaintiff has failed to
prove any claim, be it for age or sex, under Law 100.” (Docket
No. 93, p. 23). Since, according to Defendant, in Delgado Zayas
v. Hops. Int. Med. Avanzada, 137 D.P.R. 643 (1994) the Puerto
Rico Supreme Court analyzed Law 69 in the same manner as Law
100, Plaintiff has also failed to state a claim under Law 69.
Defendant‟s
blanket
statement
that
“a
review
of
the
evidence in the present case” shows that Plaintiff is unable to
state a claim, does not add up to an objection under Local Rule
72(d). Though the burden of Rule 72 is by no mean onerous, some
minimal specificity is required of a party who objects to a
Magistrate
Judge‟s
findings
and
recommendations.
A
sweeping
Civil No. 08-2045 (JAG)
30
claim of “not enough evidence” cannot suffice when the record
clearly shows that the issues are contested and both parties
have proffered evidence on the matters before the Court.
In
any
case,
discrimination
given
claims
in
that
a
courts
similar
analyze
fashion
as
Law
69
Title
VII
discrimination claims, it is hard to fathom how Plaintiff has
evinced there are triable issues under Title VII, but not under
Law 69, Pagán Alejandro v. PR ACDelco Serv. Ctr., Inc., 468 F.
Supp. 2d 316, 328 (D.P.R. 2006) (citing Mejias Miranda v. BBII
Acquisition Corp., 120 F. Supp. 2d 157, 174 (D.P.R. 2000)), or
under the less demanding standards of Law 100 and Law 80.
Defendant‟s motion for summary judgment is also denied as
to Plaintiff‟s Puerto Rico law claims under Laws 69, 80 and 100.
CONCLUSION
Defendant‟s
Motion
for
Summary
Judgment
is
DENIED
on
Plaintiff‟s claims of ADEA age discrimination, PDA retaliation
and pregnancy discrimination, and claims under Puerto Rico Laws
69, 80, and 100. Summary Judgment is
claims
of
retaliation,
PDA
and
and
ADEA
claims
hostile
under
GRANTED
work
Puerto
on Plaintiff‟s
environment,
Rico
Law
3.
ADEA
Partial
judgment will be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico this 30th day of August, 2011.
Civil No. 08-2045 (JAG)
31
S/Jay A. García-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
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