Negron-Marty et al v. Wal-Mart Puerto Rico, Inc.
Filing
75
OPINION AND ORDER re: 16 Motion for Summary Judgment; 39 Motion to Strike. Signed by US Magistrate Judge Bruce J. McGiverin on March 21, 2012.(McGiverin, Bruce)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ÁNGEL L. NEGRÓN-MARTY, et al.,
Plaintiffs,
v.
Civil No. 09-2201 (BJM)
WAL-MART PUERTO RICO, INC.,
Defendant.
OPINION AND ORDER
Ángel L. Negrón-Marty (“Negrón”), his wife Maribel Orengo-Echevarría (“Orengo”),
and their conjugal partnership (collectively, “plaintiffs”) sued Wal-Mart Puerto Rico, Inc. (“WalMart”), alleging employment discrimination and retaliation in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §§ 621 et seq., Law No. 44 of July 2, 1985 (“Law 44”), 1 L.P.R.A.
§§ 501 et seq., Law No. 100 of June 30, 1959 (“Law 100”), 29 L.P.R.A. §§ 146 et seq., Law No.
115 of December 20, 1991 (“Law 115”), 29 L.P.R.A. §§ 194a et seq., as well as unjust dismissal
in violation of Law No. 80 of May 30, 1976 (“Law 80”), 29 L.P.R.A. §§ 185a et seq., and tort
liability under Article 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. § 5141. (Docket No. 1).
Before the court is Wal-Mart’s motion for summary judgment on all claims. (Docket No.
16). Plaintiffs opposed the motion (Docket No. 31), Wal-Mart replied (Docket No. 38), and
plaintiffs filed a sur-reply (Docket No. 57). In addition, Wal-Mart moved to strike portions of
Negrón’s statement under penalty of perjury, (Docket No. 39), which plaintiffs opposed (Docket
No. 58); Wal-Mart replied (Docket No. 64) and plaintiffs filed a sur-reply (Docket No. 67). This
case is before me by consent of the parties. (Docket No. 25). For the reasons that follow, WalMart’s motion for summary judgment is granted in part and denied in part.
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Civil No. 09-2201 (BJM) – Opinion and Order
Page 2
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the case are summarized here after applying Local Rule 56, which structures
the presentation of proof at summary judgment.1
Employment with Wal-Mart and Wal-Mart’s Policies
On September 29, 1997, Negrón began work as a sales associate at a Wal-Mart store in
Ponce, Puerto Rico. (Docket No. 18, hereinafter “Def. St.,” ¶ 1). At the time he was terminated
on November 7, 2008, Negrón was Department Manager for the School Supplies Department.
(Def. St., ¶ 2). He was 44 years old at the time he was terminated. (Def. St., ¶ 48).
Negrón signed an acknowledgment of receiving Wal-Mart’s employee handbook on
September 19, 1997. (Def. St., ¶ 3). That handbook includes policies against discrimination,
harassment, and retaliation. (Def. St., ¶ 4). Negrón was aware of the policies, received formal
training in them, and knew that he should immediately report any discrimination to a supervisor.
(Def. St., ¶ 5). Wal-Mart also offered a 1-800 number for its employees to report discrimination.
(Def. St., ¶ 6). The company’s “Open Door Policy” provided another avenue for complaints.
(Def. St., ¶ 7). The Store also had written descriptions of its policies on a bulletin board. (Def.
St., ¶ 8). Wal-Mart’s policy sets out instructions regarding to whom employees may report
discrimination and harassment. (Def. St., ¶ 53).
1
The rule “relieve[s] the district court of any responsibility to ferret through the record to discern whether
any material fact is genuinely in dispute,” CMI Capital Market Inv. v. González-Toro, 520 F.3d 58, 62 (1st Cir.
2008), and prevents parties from “shift[ing] the burden of organizing the evidence presented in a given case to the
district court.” Mariani-Colón v. Dep’t of Homeland Sec., 511 F.3d 216, 219 (1st Cir. 2007). The penalty for
noncompliance is severe: “If the party opposing summary judgment fails to comply with Local Rule 56(c), the rule
permits the district court to treat the moving party’s statement of facts as uncontested.” Id. Thus, litigants ignore
the rule “at their peril.” Id.
A motion for summary judgment must be supported by “a separate, short, and concise statement of material
facts, set forth in numbered paragraphs, as to which the moving party contends there is no genuine issue of material
fact to be tried.” Local Rule 56(b). The opposing party must admit, deny, or qualify the moving party’s facts by
reference to each numbered paragraph, and may make a separately numbered statement of material facts. Local Rule
56(c). The moving party may reply and admit, deny, or qualify the opponent’s newly-stated facts, again in a
separate statement and by reference to each numbered paragraph. Local Rule 56(d). Any facts supported by citation
to record evidence and not properly controverted as described by the rule are deemed admitted. Local Rule 56(e).
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Civil No. 09-2201 (BJM) – Opinion and Order
Page 3
Another formal policy entitled “Coaching for Improvement” defines a progressive
discipline policy with four levels of discipline: unwritten warnings (“Verbal Coaching”), a
meeting accompanied by a written warning (“Written Coaching”), a meeting and written warning
followed by one day of mandatory paid leave and a follow-up meeting (“Decision-Making
Day”), and ultimately, termination. (Def. St., ¶¶ 10-12). Depending on the circumstances, the
policy does not require each lower step to be followed before proceeding at a higher step; for
instance, certain types of conduct may result in immediate termination. (Def. St., ¶ 13). Negrón
was familiar with this system. (Def. St., ¶ 14).
The 2007 Performance Reviews
A written performance review form dated May 15, 2007 states that Negrón receieved
verbal discipline regarding his performance level in “inventory results.” (Def. St., ¶ 16). The
form states that Negrón’s department was expected to have inventory results of “-.85% or less,”
and that the actual performance was “-1.65% vs. sales.” (Def. St., ¶¶ 16-18). According to the
statement of Zoraida Vecchioly Rivera (“Vecchioly”), the Store Manager, “the same
admonishment was issued to all associates in the School Supply Department . . . .” (Def. St.,
¶ 19). Negrón denies having received this warning, however.2 (Docket No. 31-1, hereinafter
“Pl. St.,” ¶ 16). He also denies that the inventory results were negative. (Pl. St., ¶ 19).
2
Wal-Mart moved to strike Negrón’s statement under penalty of perjury in its entirety. (Docket No. 39).
The motion largely consists of comments such as “Paragraph 13 – Contains conclusory allegations without any
evidence corroborating this statement; no specific acts but only vague generalities. See FRE 801-803.” (Docket No.
39, p. 6). I remind Wal-Mart’s counsel of the aphorism about the pot and the kettle, and of the rule that litigants
may not prevail on arguments made “in the most skeletal way, leaving the court to do counsel’s work.” See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Much of Wal-Mart’s motion consists of arguments about what
contrary conclusions should be drawn from its own evidence, and arguments about the case as a whole. (See, e.g.,
Docket No. 39, p. 6) (“Negrón wrote this letter because it is company policy to do so and the paragraph clearly
shows his unwillingness to abide by company policy without good cause.”). Since such arguments do not go to the
question of whether portions of Negrón’s statement are admissible, I have disregarded them as irrelevant.
Nevertheless, I have disregarded portions of Negrón’s statement that assert legal conclusions, address
matters outside of Negrón’s demonstrated personal knowledge, or are otherwise inadmissible. However, Wal-Mart
has not pointed out any other problems that warrant striking the statement as a whole; therefore, the motion to strike
(Docket No. 39) is denied.
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Civil No. 09-2201 (BJM) – Opinion and Order
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A written performance review form dated June 20, 2007 states that Negrón cashed a
check on June 2, 2007 “which showed that the account was closed,” and that “[t]his same
situation took place in previous months with a shares check.” (Def. St., ¶ 20; Docket No. 18-7,
p. 2). The performance review states that a failure to correct the issue will result in “Decision
Day” discipline. (Def. St., ¶ 24). Vecchioly stated that “[a] similar situation happened back in
2006.” (Def. St., ¶ 23). 3 The policy on returned checks written by associates to Wal-Mart
authorized discipline, including termination, as a consequence. (Def. St., ¶ 22). Negrón testified
that he was not aware he could be disciplined for cashing a bad check made out to him by a third
party, and did not believe the disciplinary policy applied unless he was the one who made out the
check himself.4 (Pl. St., ¶ 21).
A written performance review form dated December 7, 2007 states that Negrón took a
24-minute break on December 4, that he was under “Decision Day” status, and that Negrón
would be subject to dismissal for failure to correct the problem. (Def. St., ¶¶ 26, 28). A policy
states that employees may only take breaks of up to 15 minutes. (Def. St., ¶ 27). Negrón did not
sign the performance form, but wrote a letter dated December 11, 2007 acknowledging the
violation. (Def. St., ¶ 29). Negrón stated that he only wrote the letter because he would be
terminated if he did not. (Pl. St., ¶ 29). Negrón denies taking a 24-minute break, and denies
having ever violated the 15-minute break rule; he asked Vecchioly to provide evidence of how
long he went on break, but she did not do so. (Pl. St., ¶ 26).
The December 2007-January 2008 Leave of Absence
On December 10, 2007, Wal-Mart received a letter written by Dr. Carmen L. Maldonado
3
Although plaintiffs argue that Negrón had never previously issued a check returned for insufficient funds,
the cited portion of his statement (Docket No. 31-2, ¶ 9) does not support this contention.
4
Negrón’s statement also asserts that another (younger) employee did not receive formal discipline from
Vecchioly, but does not establish a foundation for his personal knowledge of whether that other employee was
disciplined. (See Docket No. 31-2, ¶ 9). Therefore, I have disregarded that portion of his statement.
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
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Buitrago (“Dr. Maldonado”) stating that she would like Negrón to stay home from work until
December 16, 2007, that she would perform a psychometric evaluation, and that Negrón had a
nervous breakdown affecting his job performance. (Def. St., ¶ 30). On December 11, 2007,
Wal-Mart received a medical absence certificate from Instituto de Medicina de Familia del Sur
(“Instituto”) stating that Negrón was sick as of December 11, and could not resume his duties
until further notice. (Def. St., ¶ 31). Wal-Mart approved a leave of absence with reduced hours
from December 10 through December 16, 2007, and continuous leave from December 23, 2007
through January 14, 2008. (Def. St., ¶ 32). Dr. Maldonado provided another letter on December
23, 2007 stating she would need three weeks to decide whether he could return to work. (Def.
St., ¶ 33).
On January 14, 2008, Negrón told Vecchioly that he was ready to return to work even
though his medical certificate said he could not yet work; Vecchioly insisted on a medical
certificate stating he could return to work. (Def. St., ¶ 34). On January 15, Dr. Maldonado sent
Wal-Mart a letter stating he could return to work on January 21, 2008. (Def. St., ¶ 35). WalMart also received a letter from Instituto on January 15 stating Negrón could return to work on
January 21. (Def. St., ¶ 36). Wal-Mart extended Negrón’s leave of absence through January 21.
(Def. St., ¶ 37). On January 17, 2008, Dr. Maldonado sent Wal-Mart a letter stating that she had
referred Negrón to the State Insurance Fund (“SIF”) for evaluation and treatment. (Def. St.,
¶ 38). Also on January 17, Wal-Mart received a letter from the SIF indicating he would receive
treatment while working, and that his condition was still pending determination. (Def. St., ¶ 39).
Negrón’s Working Environment
Negrón returned to work as Department Manager for the School Supplies Department on
January 21, 2008. (Def. St., ¶ 40). Following his return, Vecchioly removed four of the five
part-time employees from the department, leaving him with only one part-time employee. (Pl.
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St., ¶ 40). His supervisors, Vecchioly, Gustavo Jordan (“Jordan”), and Sheila Pérez (“Pérez”),
would “constantly” visit the department and tell him to work faster or else he would be
discharged. (Pl. St., ¶ 40). They told him that his medical leave requests negatively affected his
performance, that they were tired of his leave requests, and that he would be fired if he were
absent again for a medical appointment. (Pl. St., ¶ 40).5 Negrón testified that following his
admission to a hospital, his shift schedule was changed. (Pl. St., ¶ 40). He also testified that he
was assigned more merchandise to shelve than he could in the time allotted. (Pl. St., ¶ 40).
Negrón testified that he had complained of being called a “crazy old man” to Personnel
Manager Doris Donate (“Donate”), District Manager Gilberto Rosa (“Rosa”), and Idelina Lebrón
(“Lebrón”) on more than one occasion. (Docket No. 31-1, hereinafter “Pl. St.,” ¶ 9). Negrón
also complained about changes in his shifts, the imposition of unreasonable deadlines, and the
removal of assistants assigned to him. (Pl. St., ¶ 9). Negrón also stated that Vecchioly, Jordan
and Pérez “constantly, on a daily basis” told him he would be terminated for not meeting the
company’s expectations. (Pl. St., ¶ 17). According to Vecchioly’s statement, Negrón never
complained to her of age discrimination, and “never used an Open Door Policy with [her]” to
complain of any kind of discrimination. (Def. St., ¶ 51).6
Negrón testified that Vecchioly, Jordan, and Pérez resisted his requests for leave to attend
5
Wal-Mart broadly characterizes Negrón’s account as hearsay. However, Negrón’s version of his
supervisors’ comments are not offered for the truth of the matter asserted (whether Negrón really was performing
poorly in some objective sense, or whether he would be fired if he took further medical leave), but rather for the fact
that the comments were uttered at all—something Negrón has first-hand knowledge of, and which reduces to a
question of credibility, not admissibility. On the other hand, Negrón also testified about a conversation with Agustín
Rodríguez, allegedly a Wal-Mart supervisor, in which Rodríguez related a conversation he had with Vecchioly.
Unlike the other conversations Negrón relates, this is a secondhand account, and plaintiffs never explain why it
should be admissible against Wal-Mart under an exception to the hearsay rule. Accordingly, I have disregarded
Negrón’s secondhand account of what Vecchioly told Rodríguez as hearsay.
6
Wal-Mart only cites Vecchioly’s statement (Docket No. 18-1) for the proposition that Negrón never
“submitted a claim” of harassment or retaliation of any kind. (Def. St., ¶¶ 51-52). But whether a particular
complaint was one of discrimination is a legal conclusion; thus, at best, Vecchioly’s statement avers that she never
perceived any complaint to be of age discrimination. Wal-Mart also cites her statement to support the proposition
that Negrón never complained to anyone of being called a “crazy old man” or “old man.” (Def. St., ¶ 55). But
Vecchioly’s statement is silent as to whether he ever made this specific complaint to her, and her statement does not
establish how she can have personal knowledge of whether he so complained to anyone else.
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
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SIF appointments, and told him that “what [he] was looking for was Social Security.” (Pl. St.,
¶ 54). Negrón also testified that he asked to be transferred to another area of the store. (Pl. St.,
¶ 54). Vecchioly stated that Negrón never requested a transfer to any other area of the store.
(Def. St., ¶ 54). Negrón’s wife, Orengo, testified that she did not know whether Negrón had
requested any type of accommodation or concession from Wal-Mart. (Def. St., ¶ 54). Orengo
was not aware of any time Wal-Mart did not allow Negrón to attend a medical appointment.
(Def. St., ¶ 56). Vecchioly stated that Wal-Mart routinely granted Negrón’s requests for time off
to go to medical appointments with the SIF. (Def. St., ¶ 56). Wal-Mart did not deny Negrón’s
requests for vacation time. (Def. St., ¶ 57).
Negrón generally points to a collection of SIF medical records as evidence of depression.
(Pl. St., ¶ 49). He also asserts that he is not able to sleep, eat, drive, “engage in any reproductive
activity,” or perform household chores, and that he has suffered from suicidal thoughts. (Pl. St.,
¶ 49). 7 He stated that his emotional condition followed an incident where Vecchioly accused
him of stealing merchandise from the store, and that he never suffered emotional or mental
disorders or sought psychiatric treatment prior to that incident. (Pl. St., ¶ 50).
The November 1, 2008 Absence and Termination
A leave request form dated October 24, 2008 indicates that Negrón was granted vacation
time between October 25 and October 31, 2008. (Def. St., ¶ 41). Negrón states that he requested
this leave “well before” that date.8 (Pl. St., ¶ 41). A schedule report dated October 18, 2008 and
7
His statement also averred that he was diagnosed with severe major depression, but Wal-Mart correctly
observes that Negrón is not qualified to state a medical diagnosis or summarize medical evidence.
8
Wal-Mart objects that this contradicts his deposition testimony that he did not make a written request for
leave. An affidavit, particularly one created to oppose summary judgment, may be disregarded if it contradicts clear
answers to unambiguous questions and does not explain the change in testimony. Colantuoni v. Alfred Calcagni &
Sons, Inc., 44 F.3d 1, 4–5 (1st Cir. 1994). Yet there is no contradiction here: Negrón now states that he orally
sought permission on some date prior to October 24, and does not repudiate his testimony about making written
requests. Wal-Mart’s point that “Negrón does not provide any date of this alleged request, its place, or
corroborat[ing] evidence of said request” may go to the weight due this statement, but not its admissibility. (See
Docket No. 39, p. 9).
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
Page 8
entitled “Final Copy” listed work schedules for the week running from Saturday, November 1,
2008 through Friday, November 7, 2008, and showed Negrón working on November 1, 2008.
(Def. St., ¶ 42). According to Vecchioly, she lacked discretion to extend his time off through
November 1, 2008 because he had already been scheduled for that date for three weeks. (Def.
St., ¶ 43). But Negrón testified that he asked Vecchioly to extend his leave until November 3,
and that she told him it would be fine because he had enough vacation time to handle it. (Pl. St.,
¶ 41). He added that since Vecchioly told him it was fine, he did not seek to alter his request for
leave. (Pl. St., ¶ 41).
Negrón did not report to work on November 1, 2008, and did not attempt to contact his
supervisor or any other Wal-Mart employee that day. (Def. St., ¶ 45). Negrón stated that
nobody attempted to contact him that day. (Pl. St., ¶ 45). Wal-Mart’s “Attendance Punctuality
Policy” considers an absence coupled with a failure to call in a “No Call / No Show,” which
triggers discipline under the coaching system. (Def. St., ¶ 45). Negrón had not previously been
warned for violation of the attendance policy. (Pl. St., ¶ 45).
Negrón was terminated on November 7, 2008; the “exit interview form,” signed by
“[illegible] Pérez” and “Zoraida [illegible],” indicates that he was terminated for violation of the
absence and tardiness policy.
(Def. St., ¶ 46).
Negrón does not believe his supervisors
investigated the matter of whether Vecchioly orally granted him an additional day of vacation.
(Pl. St., ¶ 46). Negrón understands Wal-Mart’s disciplinary policy as allowing, but not strictly
requiring, termination for an infraction during the one-year period following a “Decision-Making
Day” coaching. (Pl. St., ¶ 46). Negrón testified that Vecchioly, Jordan, and Pérez laughed when
they told him that he was terminated. (Pl. St., ¶ 46). That morning, Negrón had been given “Top
Performance Department” awards for July and August 2008.
(Pl. St., ¶ 16). Negrón was
replaced on December 20, 2008 by 41-year-old Alberto Ocasio, who had previously been the
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Civil No. 09-2201 (BJM) – Opinion and Order
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Department Manager of the Automobile Department. (Def. St., ¶¶ 62-63).
Administrative Proceedings
The Department of Labor issued a determination with a “delivery date” of November 24,
2008, stating that Wal-Mart did not provide evidence of any violation of the employer’s norms,
and that Negrón was therefore entitled to unemployment benefits for an unspecified range of
time. (Pl. St., ¶ 65). Negrón filed an EEOC charge on December 17, 2008. (Def. St., ¶ 58). In a
determination dated September 18, 2009, the SIF found Negrón’s emotional condition was not
related to his work, and closed his SIF case. (Def. St., ¶ 50).
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A fact is material only if it “might affect the outcome of the suit under the
governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and “[a] ‘genuine’
issue is one that could be resolved in favor of either party.” Calero-Cerezo v. U.S. Dep’t of
Justice, 355 F.3d 6, 19 (1st Cir. 2004). The court does not weigh the facts, but instead ascertains
whether the “evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Leary v. Dalton, 58 F.3d 748, 751 (1st Cir. 1995).
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of the [evidence] . . .
which it believes demonstrate the absence of a genuine issue of material fact.” Crawford-El v.
Britton, 523 U.S. 574, 600 n.22 (1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)); Fed. R. Civ. P. 56(c)(1). Once this threshold is met, the burden shifts to the nonmoving
party, who “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
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Civil No. 09-2201 (BJM) – Opinion and Order
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However, the court draws inferences and evaluates facts “in the light most favorable to the
nonmoving party,” Leary, 58 F.3d at 751, and an evaluating court may not “superimpose [its]
own ideas of probability and likelihood (no matter how reasonable those ideas may be) upon the
facts of the record.” Greenburg v. P.R. Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir.
1987). Nonetheless, summary judgment is appropriate where the nonmoving party rests entirely
upon “conclusory allegations, improbable inferences, and unsupported speculation” on any
essential element of the claim. Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990).
DISCUSSION
Plaintiffs allege that Wal-Mart (1) failed to provide Negrón with a reasonable
accommodation, (2) discriminated against him because of his age and disability, which included
(3) inflicting a hostile work environment, and (4) retaliated against him for requesting
accommodations and opposing the discrimination against him. In addition to bringing these
claims under the ADEA, ADA, and parallel Commonwealth statutes, plaintiffs also allege that
Wal-Mart is liable for under Law 80 for severance pay, and for tort damages under Article 1802
of the Puerto Rico Civil Code. Wal-Mart seeks summary judgment on all claims.
I.
Duty to Provide Reasonable Accommodations
Plaintiffs argue that Wal-Mart failed to satisfy several of Negrón’s workplace requests,
violating its duty to provide reasonable accommodations under the ADA. Wal-Mart counters
that Negrón never requested any accommodations, and that in any case it granted most of his
requests. The ADA requires employers to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C.
§ 12112(b)(5)(A). To state a claim under this requirement, a plaintiff must show that she (1) had
a disability as defined by the ADA, (2) was able to perform the “essential functions” of the job,
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Civil No. 09-2201 (BJM) – Opinion and Order
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“with or without reasonable accommodation,” and (3) that the employer “knew of her disability
and did not reasonably accommodate it.” Valle-Arce v. P.R. Ports Auth., 651 F.3d 190, 198 (1st
Cir. 2011). Wal-Mart challenges each element of the claim.
A.
Disability under the ADA
Plaintiffs argue that Negrón was disabled within the meaning of the ADA because he
suffered severe depression. To demonstrate a disability within the meaning of the ADA, a
plaintiff must (1) establish a physical or mental impairment, (2) demonstrate that the impairment
affects major life activities, and (3) show that the impairment “substantially limits” such life
activities. 9 Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 187 (1st Cir. 2011). “Major life
activities are basic activities of daily life that an average person in the general population can
perform with little or no difficulty—‘functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’” Id. (quoting 29
C.F.R. § 1630.2(i) (1991)). A substantial limitation is one which is “permanent or long-term,”
and there must be evidence of the substantial limitations on the particular plaintiff; a medical
diagnosis alone is not enough. Id. (citing Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184, 198 (2002) and Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st Cir. 2002)).
Wal-Mart states that the medical certificates it received indicate a diagnosis of “an
obsessive compulsive disorder and depression” in December 2007. (Docket No. 16, p. 14). As a
general principle, and one that Wal-Mart does not contest, depression may—depending on
individual circumstances—be considered a mental impairment within the meaning of the first
element. See Calero-Cerezo, 355 F.3d at 20-21 (collecting cases). But to survive summary
judgment, plaintiffs must also submit sufficient evidence of the individualized effects and
9
The events at issue in this case occurred prior to January 1, 2009, when amendments to the ADA
broadening its definition of disability became effective. Because the amendments are not retroactive, I analyze
Negrón’s claims under the old law. See Valle-Arce, 651 F.3d at 198 n. 5.
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substantial limitations on Negrón’s major life activities.
In arguing that he has a cognizable disability, plaintiffs paraphrase the following portion
of Negrón’s statement under penalty of perjury:
27.
Before my termination, since 2007 and even as of today, I was
diagnosed as suffering from a severe major depression. As a result of my severe
major depression, and notwithstanding the psychiatric treatment received by me
and the medications taken by me, I was substantially limited and could not
perform the following daily life activities: I was unable to sleep, nor eat, and had
also suicidal ideas. My memory was also affected, and as a result, I forgot about
things. I also could not engage in any reproductive activity. I also was not able to
perform any house chores. I also, after my termination on November 7, 2008, and
even as of today, have not been able to work nor drive, nor sleep.
(Docket No. 31-2, ¶ 27).
Wal-Mart takes issue with Negrón’s reference to severe major
depression, observing that he is not a physician and thus is not qualified to make medical
conclusions. (Docket No. 39, p. 10). Picking this fight is puzzling in light of Wal-Mart’s
concession that Negrón was diagnosed with depression, and in any case I do not read this
statement as stating Negrón’s own medical opinion. Nonetheless, Negrón’s statement relates an
unnamed third party’s diagnosis of “severe major depression,” and is being offered for the truth
of whether he has that condition. Plaintiffs “did not proffer affidavits from any of [Negrón’s]
supposed informants, nor [have plaintiffs] attempted to show the origins of whatever knowledge
they may have had.” Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011). In short, the assertion is
hearsay and must be disregarded at summary judgment. See id.
So, stripped of hearsay and legal buzzwords, Negrón’s evidence reduces to this:
beginning sometime in 2007 and through at least June 3, 2011 (the date of the statement), he has
undergone some unidentified psychiatric treatment and has taken unidentified medications, but
nonetheless reports that he has been unable to sleep or eat, has had suicidal thoughts, has had
problems with his memory, has not been able to engage in sexual intercourse, and has not been
able to perform household chores. Additionally, he has not worked, driven, or slept since
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November 7, 2008. 10 This evidence is not particularly probative of the relationship between
Negrón’s diagnosed depression and the effect of that depression on his major life functions. But
Wal-Mart’s only argument against Negrón’s asserted disability is that the statement
accompanying his EEOC charge does not refer to severe depression. (Docket No. 38, p. 5).
Wal-Mart never explains how this omission would undermine Negrón’s claim of disability;
indeed, Wal-Mart draws no conclusion at all from this observation. Wal-Mart also asserts that
the complaint does not refer to depression; whatever significance that might have had if true,
Wal-Mart is wrong. (See Docket No. 1, ¶¶ 2-3). Since litigants waive “claims not made or
claims adverted to in a cursory fashion,” I do not consider this point any further. See Velásquez
Rodríguez v. Mun’y of San Juan, 659 F.3d 168, 175 (1st Cir. 2011).
In the end, a rational jury could infer that depression limited Negrón’s capacity for
several life activities, based on the medical evidence of depression identified by Wal-Mart
together with Negrón’s subjective account of his difficulties. See Calero-Cerezo, 355 F.3d at 21
(accepting unchallenged evidence of depression’s effects at summary judgment). And given
Negrón’s account that his conditions were not ameliorated by whatever treatment he sought,
including the span of nearly a year between his diagnosis in December 2007 or January 2008 and
his termination in November 2008, a jury could also find these limitations to be substantial.
B.
Otherwise Qualified Individual
Wal-Mart next argues that Negrón was not an otherwise qualified individual under the
ADA. In opposing summary judgment, plaintiffs assert that “Negrón could perform, and indeed
10
Plaintiffs’ statement of facts also generally cites “Exhibit 3,” a collection of SIF medical documents,
without citing any particular pages, paragraphs, or even specific statements from that set. (Pl. St., ¶ 49; Docket No.
61-1). They never explain what parts of these documents, if any, support their contentions. (See, e.g., Docket No.
31, p. 10) (“In the present case, it should be an uncontested fact that the plaintiff suffers from a severe depression, as
diagnosed by a psychiatrist[,] and that the defendant was fully aware of plaintiff’s physical, mental, and emotional
condition.”) (no citation provided). Since building up arguments and marshaling evidence is the role of counsel and
not the court, I give the documents no further consideration. See Zannino, 895 F.2d at 17.
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
Page 14
performed up until his termination, the functions and duties of his position with a reasonable
accommodation.” (Docket No. 31, p. 10). In support of this statement, they cite the portion of
Negrón’s statement describing the effects of his depression, but fail to provide any evidence of
what his job functions and duties were, or of how a particular accommodation would have
enabled Negrón to perform those functions and duties. Plaintiffs also point to the awards
Negrón’s department received in 2008, and the absence of discipline other than the actions they
now challenge as discriminatory. (Docket No. 31, p. 3-5). The inference to be drawn from this
is presumably that whatever his essential job functions might have been, Negrón’s department
could not have earned performance awards if he were unable to perform them. For the purposes
of summary judgment, this is enough to allow a jury to decide that Negrón was qualified within
the meaning of the ADA. However, as seen below, plaintiffs’ reliance on this broad inference
proves fatal to his reasonable accommodation action as a whole.
C.
Knowing Failure to Accommodate
Wal-Mart next contends that Negrón never requested a reasonable accommodation within
the meaning of the ADA.
To sustain a failure to accommodate claim, plaintiffs must
demonstrate the reasonability of a proposed accommodation.
Gómez-González v. Rural
Opportunities, Inc., 626 F.3d 654, 665 (1st Cir. 2010). This means there must be evidence that
the accommodation will enable the plaintiff to perform the essential functions of the job.
Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir. 2001). And “accommodations are only deemed
reasonable (and, thus, required) if they are needed because of the disability . . . .” Higgins v.
New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999). “Indeed, simply in
explaining how her proposal constitutes an ‘accommodation,’ the plaintiff must show that it
would effectively enable her to perform her job.” Reed v. LePage Bakeries, Inc., 244 F.3d 254,
259 (1st Cir. 2001). And to trigger the ADA, an employee’s cannot merely make “a mundane
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Civil No. 09-2201 (BJM) – Opinion and Order
Page 15
request for a change at the workplace”; the request must be “sufficiently direct and specific,” and
“explain how the accommodation requested is linked to some disability.” Id. at 261.
Plaintiffs argue that Negrón requested three accommodations: (1) medical leave and/or
time off to recover, (2) a change in his hourly work schedule, and (3) a transfer to a different
department or store. (Docket No. 31, p. 10). As Wal-Mart points out, Negrón’s account of his
ongoing functional limitations, which he describes as resisting psychiatric treatment and
medication, undermines plaintiffs’ contention that a change in shift, a transfer, or more time off
would have improved his ability to work. Compounding this, plaintiffs have offered neither
argumentation nor evidence regarding what Negrón’s essential job functions were, let alone how
the changes he asked for would have enabled him to perform them. This lack of evidence
requires the fact-finder to speculate as to whether a particular request was linked to Negrón’s
disability. While I do not doubt that Negrón’s depression is more complex than a total ability or
inability to do the work required of his job, this lack of functional detail is the very reason that
plaintiffs’ accommodation claims cannot survive summary judgment: they have failed to provide
evidence that a jury could use to navigate this complex question and decide whether the ADA
required Wal-Mart to accommodate Negrón’s requests.
Plaintiffs also noted that Wal-Mart never “engaged in any type of conversations with
Negrón, in order to try to provide a reasonable accommodation to the plaintiff.” (Docket No. 31,
p. 12). Though this passing assertion is so skeletal as to be waived, see Zannino, 895 F.2d at 17,
I will briefly entertain plaintiffs’ allusion to the duty to “engage in an interactive process to
determine whether any reasonable accommodations were available.” See Richardson v. Friendly
Ice Cream Corp., 594 F.3d 69, 82 (1st Cir. 2010). To survive summary judgment, a plaintiff
must provide evidence that “the interaction could have led to the discovery of a reasonable
accommodation.” Id. Thus, where the only accommodations suggested by the plaintiff at
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Civil No. 09-2201 (BJM) – Opinion and Order
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summary judgment are inadequate or unreasonable, the interactive process claim necessarily fails
as well, since there is no evidence from which a jury could conclude that an accommodation
might have been discovered. Id. Here, since plaintiffs have failed to provide anything more than
speculation to support a conclusion that Negrón’s requests were reasonable, it is equally
speculative to conclude that an interactive process would have uncovered a reasonable
alternative.
In short, plaintiffs have offered little more than “conclusory allegations, improbable
inferences, and unsupported speculation” on this element of the claim, and Wal-Mart is entitled
to summary judgment on the reasonable accommodation claim.11 See Medina-Muñoz, 896 F.2d
at 8.
II.
Age and Disability Discrimination
I next turn to plaintiffs’ claims that Wal-Mart engaged in unlawful age and disability
discrimination. The ADA and ADEA prohibit discrimination in the “terms, conditions, and
privileges of employment” on the basis of age or disability, respectively. 29 U.S.C. § 623(a)(1);
42 U.S.C. § 12112(a). Absent direct evidence of discrimination, a plaintiff may establish an
inference of age discrimination under the ADEA by showing that (1) he was at least 40 years old
at the time of the adverse action, (2) he was qualified for the position, (3) he suffered an adverse
employment action, and (4) the employer demonstrated a continuing need for his services. 12
Bonefont-Igaravidez v. Int’l Shipping Corp., 659 F.3d 120, 124 (1st Cir. 2011). Similarly, a
11
I note that I give no weight to Wal-Mart’s contention that “Negrón did not request accommodation . . .
because he did not proffer in his EEOC charge the ‘condition’ or ‘disability’ he suffers . . . .” (Docket No. 16, p.
12). Wal-Mart never articulates how the alleged deficiency in the EEOC charge bears on plaintiffs’ claims now, and
“provides neither the necessary caselaw nor reasoned analysis” to show that it is entitled to summary judgment on
that ground. Velásquez Rodríguez, 659 F.3d at 176.
12
Wal-Mart argues that ADEA claims cannot be sustained through a burden-shifting framework. (Docket
No. 16, p. 16) (citing Gross v. FBL Fin. Serv., Inc., 129 S. Ct. 2343, 2351 (2009)). However, the First Circuit held
that, notwithstanding dicta in Gross, burden-shifting remains appropriate in ADEA cases. Vélez v. Thermo King de
P.R., Inc., 585 F.3d 441, 447 n. 2 (1st Cir. 2009).
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Civil No. 09-2201 (BJM) – Opinion and Order
Page 17
plaintiff may establish an inference of disability discrimination under the ADA by showing that
he (1) had a disability within the meaning of the ADA, (2) was qualified to perform the essential
functions of the job, “with or without reasonable accommodations,” (3) suffered an adverse
employment action, (4) was replaced by or treated less favorably than a non-disabled person, and
(5) suffered damages as a result.
Ramos-Echevarría, 659 F.3d at 186.
When a plaintiff
establishes a prima facie case of discrimination, the employer has the burden of producing a
legitimate, nondiscriminatory reason for its action; “[i]f the employer does so, the focus shifts
back to the plaintiff, who must show, by a preponderance of the evidence, that the employer’s
articulated reason for the adverse employment action is pretextual and that the true reason for the
adverse action is discriminatory.” Gómez-González, 626 F.3d at 662 (citation and quotation
marks omitted). “Pretext can be shown by such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.”
Id. at 662-63 (citation
omitted). In age discrimination cases, a plaintiff “must elucidate specific facts which would
enable a jury to find that the reason given is not only a sham, but a sham intended to cover up the
employer's real motive: age discrimination.” Meléndez v. Autogermana, Inc., 622 F.3d 46, 52
(1st Cir. 2010) (internal citation and quotation marks omitted). Similarly, an ADA plaintiff must
show an employer’s justification to be “mere pretext cloaking discriminatory animus.” RamosEchevarría, 659 F.3d at 187.
Wal-Mart challenges each element of plaintiffs’ prima facie case; I begin by considering
the elements common to all claims, and then address each of the allegedly discriminatory acts
that plaintiffs now complain of under the burden-shifting framework.
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
A.
Page 18
Membership in the Protected Class and Qualification for the Position
It is uncontested that Negrón was over age 40 during the events at issue in this case. And
as discussed above, plaintiffs have presented sufficient evidence for a jury to conclude that
Negrón was disabled within the meaning of the ADA. Plaintiffs further argue that, by virtue of
Negrón’s long employment with Wal-Mart and his department’s performance awards, it can be
inferred that he was qualified for the position. (Docket No. 31, p. 3-5). Wal-Mart argues that
Negrón was unqualified because of his disciplinary record. (Docket No. 16, p. 18). But the
disciplinary actions are themselves among the adverse actions Negrón now alleges to be
discriminatory, while Wal-Mart’s position is that the discipline was warranted. An employer’s
non-discriminatory rationale for taking an employment action cannot be weighed in analyzing a
prima facie case, as it may “bypass the burden-shifting analysis and deprive the plaintiff of the
opportunity to show that the nondiscriminatory reason was in actuality a pretext designed to
mask discrimination.” See Meléndez, 622 F.3d at 51 (quoting Wexler v. White’s Fine Furniture,
Inc., 317 F.3d 564, 574 (6th Cir. 2003)). Since plaintiffs have offered evidence from which a
jury could rationally conclude that Negrón was qualified for his position, Wal-Mart is not
entitled to summary judgment at this stage of the analysis.
B.
Replacement by an Insignificantly Younger Employee
Wal-Mart argues that Negrón cannot establish a presumption of age discrimination
because it is undisputed that his replacement was only three years younger. (Docket No. 16, p.
18). The First Circuit has held that “a three year age difference is too insignificant to support a
prima facie case of age discrimination.” Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Cir.
2000) (citing O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996)).
Plaintiffs do not address this argument, and merely state that Wal-Mart “immediately
replaced Negrón . . . with a younger employee . . . who was 41 years old, and thus approximately
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
Page 19
3 years younger than the plaintiff.” (Docket No. 31, p. 8). This is an insignificant difference in
age, and as a result, plaintiffs are not entitled to a prima facie inference of age discrimination.
C.
More Favorable Treatment of a Non-Disabled Employee
Wal-Mart argues that Negrón cannot establish a presumption of disability discrimination
because he has not provided any evidence that he was treated less favorably than a non-disabled
employee. Negrón’s statement avers that his replacement “is not a disable[d] individual[,] nor
has [he] ever made a request for a reasonable accommodation to the defendant nor has ever
complained to Wal-Mart about any unlawful or discriminatory employment practice.” (Pl. St.,
¶ 62; Docket No. 31-2, ¶ 36). But as Wal-Mart correctly notes, there is no foundation showing
how Negrón has personal knowledge of any of this; thus, his statement is not competent evidence
of these matters. Moreover, plaintiffs do not argue that any other non-disabled employee was
treated better. Since plaintiffs have failed to provide evidence of every element of the prima
facie case, they cannot rely on a presumption of discrimination to survive summary judgment.
D.
Direct Evidence of Discriminatory Animus
Because plaintiffs are not entitled to a presumption of discrimination under the
McDonnell Douglas framework, I consider whether they have nonetheless demonstrated that
they can survive summary judgment on the ultimate question of whether Wal-Mart acted with
discriminatory intent. A plaintiff may attempt to prove unlawful employment practices based on
direct evidence that an adverse employment action was taken because of a prohibited animus.
See Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d 60, 64-65 (1st Cir. 2002) (in Title
VII case).
Direct evidence includes “[c]omments which, fairly read, demonstrate that a
decisionmaker made, or intended to make, employment decisions based on forbidden criteria.”
Febres v. Challenger Caribbean Corp., 214 F.3d 57, 61 (1st Cir. 2000) (in ADEA case). On the
one hand, the bare possibility of an innocent explanation for the statement does not make it any
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Civil No. 09-2201 (BJM) – Opinion and Order
Page 20
less direct. Id. However, “inherently ambiguous statements do not qualify as direct evidence.”
Weston-Smith, 282 F.3d at 65.
Plaintiffs point to portions of Negrón’s statement under penalty of perjury and his
deposition testimony to demonstrate Wal-Mart’s alleged discriminatory animus. (Docket No. 31,
p. 7-8, 13; see Pl. St., ¶¶ 40, 50, 55, 56). Many of the incidents generally cited do not qualify as
direct evidence since they do not demonstrate any particular animus at all. (See, e.g., Pl. St., ¶
40) (reduction in support staff and increase in workload). On the other hand, four portions of the
cited evidence do suggest facially suspect motivations: (1) Negrón’s statement that Vecchioly,
Jordan, and Pérez would “tell me that I was old and slow, and that I needed to work faster, or
else was going to be discharged” (Docket No. 31-2, ¶ 14); (2) Negrón’s statement that he was
called “‘crazy old man’ and ‘old man,’ constantly, on a daily basis” by the three supervisors (id.,
¶ 33); (3) Negrón’s testimony that Jordan and Pérez threatened him with termination if he
continued to take medical leave (Docket No. 18-32, p. 33); and (4) Negrón’s testimony that an
unidentified “they” told Negrón “on several occasions” that he was actually looking for Social
Security (Docket No. 18-31, p. 38).
I am persuaded that a jury, viewing this evidence in the light most favorable to plaintiffs’
claims, could conclude that the decision to terminate Negrón, rather than employ a less drastic
disciplinary measure, was motivated by Vecchioly, Jordan, and/or Pérez’s stated perception that
he was (1) working too slowly due to his age, and (2) was taking too much medical leave
because of his depression. Wal-Mart counters that Negrón’s termination was the result of his
absence on November 3, 2008, as Vecchioly asserted in her statement, and as indicated on the
exit interview she prepared, and correctly observes that Negrón has not corroborated his account
with other witnesses, reducing his case to a he-said/they-said credibility contest. But credibility
is precisely the type of dispute in evidence that must be resolved by the fact-finder, and which
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Civil No. 09-2201 (BJM) – Opinion and Order
Page 21
cannot be determined by summary judgment. Therefore, Wal-Mart is not entitled to dismissal of
the discrimination claims based on his termination and threatened termination.
III.
Hostile Work Environment
Plaintiffs also oppose summary judgment by arguing that they have shown Negrón
suffered a hostile work environment based on his “age, disability, requests for a reasonable
accommodation, and opposition against defendant’s unlawful employment practices.” (Docket
No. 31, p. 17). To prevail on a hostile environment theory, Negrón must “show that his
‘workplace [was] permeated with discriminatory intimidation, ridicule, and insult that [was]
sufficiently severe or pervasive to alter the conditions of . . . [his] employment and create an
abusive working environment.’” Quiles-Quiles v. Henderson, 439 F.3d 1, 7 (1st Cir. 2006)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (alterations in original). This
breaks down into six elements: (1) he is a member of a protected class; (2) he was subjected to
unwelcome harassment; (3) the harassment was based on membership in the protected class; (4)
the harassment was severe and pervasive enough to alter the conditions of employment and
create a hostile work environment; (5) the conduct was both objectively and subjectively
offensive; and (6) some basis for employer liability has been established. Agusty-Reyes v. Dep’t
of Educ. of P.R., 601 F.3d 45, 53 n.6 (1st Cir. 2010) (citations omitted). Although the inquiry is
necessarily fact-specific, “summary judgment is an appropriate vehicle for policing the baseline
for hostile environment claims.” Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 83 (1st Cir.
2006). Deciding whether conduct is severe and pervasive “requires an assessment of the totality
of the circumstances, including ‘the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’” Valentín-Almeyda v. Mun’y
of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) (quoting Harris, 510 U.S. at 23 (1993)).
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
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As discussed above, plaintiffs have offered evidence of Negrón’s membership in both
ADA and ADEA13 protected classes, and Negrón testified that he complained about this conduct
to Wal-Mart. As for the harassing conduct itself, plaintiffs point to (1) Negrón’s complaint of
being called a “crazy old man”; (2) that he was stripped of his support staff and assigned more
work than he could complete in the time allotted; (3) that his supervisors “constantly” told him to
work faster, said that his medical leave requests negatively affected his performance, said they
were tired of his leave requests, and said he would be fired if he were absent again for a medical
appointment; and (4) that his hourly schedule was changed. (Docket No. 31, p. 18; Pl. St., ¶¶ 9,
20-22, 26, 29, 40-46). They also argue that he should not have been disciplined or ultimately
terminated for the returned check, for allegedly violating the break policy, or for not coming to
work on November 3, 2008. Plaintiffs point to Negrón’s self-reported inability to sleep, eat, or
perform certain other functions as evidence of the conduct’s deleterious effect on him. (Docket
No. 31, p. 18; Pl. St. ¶¶ 49, 50, 64). Plaintiffs can establish employer liability because the
complained-of conduct was allegedly perpetrated by Negrón’s supervisors, and Wal-Mart has not
articulated an Ellerth/Faragher defense. See Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19,
30 (1st Cir. 2011).
Wal-Mart ignores this claim entirely in its motion for summary judgment, and addresses
it for the first time in its reply motion. It first argues that the claim arose “presumably under
Title VII, which was not invoked anywhere in the complaint,” and seeks dismissal because
Negrón never alleged he was discriminated against on the basis of race, color, religion, sex, or
national origin. (Docket No. 38, p. 8). But plaintiffs’ failure to state a Title VII claim is a straw
man: the First Circuit has expressly recognized the viability of ADEA hostile environment
13
Although Wal-Mart’s hiring of an insignificantly younger replacement defeats the McDonnell Douglasstyle presumption of discrimination as discussed above, plaintiffs do not rely on that presumption to survive
summary judgment on the hostile environment claim.
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
Page 23
claims, see Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir. 2008), and Wal-Mart does not argue
that hostile environments are not actionable under the ADA.14
Wal-Mart alternatively argues that a hostile work environment has not been “pleaded,
alleged, or much less established by evidence in admissible form.” (Docket No. 38, p. 9). As for
pleadings and allegations, the complaint alleges that unnamed Wal-Mart officers often
commented on Negrón’s medical treatment and sick leaves, accused him of stealing, sabotaged
his performance, and criticized him on false grounds. (Docket No. 1, ¶¶ 10, 12, 14). The
complaint asserted that this conduct “created a hostile working environment, due to Negrón’s
age, disability, requests for a reasonable accommodation, and opposition against defendant’s
unlawful employment practices.” (Id., ¶ 26). I find that this was enough detail to give Wal-Mart
“fair notice of the claim and the grounds upon which it rests.” See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 8 (1st Cir. 2011); Fed. R. Civ. P. 8(a)(2). As for “evidence in
admissible form,” plaintiffs’ submission is outlined above; but beyond attacking the admissibility
of Negrón’s statement under penalty of perjury, see supra note 2, Wal-Mart does not articulate
any reason why the evidence is legally insufficient to support a hostile environment claim.
“Judges are not mind-readers, so parties must spell out their issues clearly, highlighting the
relevant facts and analyzing on-point authority.” Velásquez Rodríguez, 659 F.3d at 175.
Wal-Mart argues that it “has presented consistent documentary evidence that supports its
ultimate decision to terminate Negrón due to his progressive discipline offenses.” (Docket No.
38, p. 9). This argument is not analytically sound. Even assuming that a jury accepts Wal14
While the First Circuit has reserved judgment on the question, other circuits have held that hostile work
environment claims are actionable under the ADA. See Arrieta-Colón v. Wal-Mart P.R., Inc., 434 F.3d 75, 85 n. 6
(1st Cir. 2006) (affirming jury verdict); Rocafort v. IBM Corp., 334 F.3d 115, 120-21 (1st Cir. 2003) (citing Flowers
v. S. Reg’l Physician Serv., Inc., 247 F.3d 229, 235 (5th Cir. 2001) and Fox v. Gen. Motors Corp., 247 F.3d 169,
176 (4th Cir. 2001)). In addition, prior opinions from this district have held, or at least assumed, that such actions
are cognizable. See Rivot-Sánchez v. Warner Chilcott Co., 707 F. Supp. 2d 234, 269 (D.P.R. 2010) (collecting
cases). Since Wal-Mart does not flag this question, let alone advance any argument on the matter, I will proceed on
the assumption that the ADA proscribes discriminatory hostile environments.
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
Page 24
Mart’s position on the propriety of Negrón’s termination or progressive discipline (an
assumption Wal-Mart is not entitled to as the summary judgment movant), Wal-Mart fails to
explain how his legitimate termination precludes the claim that Negrón’s terms and conditions of
employment were adversely affected by the “crazy old man” comments, the comments that he
was performing poorly because of his medical appointments, or the changes in his workload and
support staffing. In any case, “[s]ubject to some policing at the outer bounds, the hostile
environment question is to be resolved by the trier of fact on the basis of inferences drawn from a
broad array of circumstantial and often conflicting evidence.” Quiles-Quiles, 439 F.3d at 8
(quoting Gorski v. N.H. Dep’t of Corr., 290 F.3d 466, 474 (1st Cir. 2002)) (original alteration
marks omitted). And while Wal-Mart correctly notes that plaintiffs offer almost no analysis of
the evidence they rely on, I am nonetheless mindful that Wal-Mart’s motion for summary
judgment did not even address the hostile work environment claims. Since plaintiffs have,
however inartfully, pointed to evidence in support of each element of the hostile environment
claims, the claims should survive summary judgment.
Therefore, Wal-Mart’s motion for
summary judgment is denied as to the hostile environment claims under the ADA and ADEA.
IV.
Retaliation
Plaintiffs further argue that Negrón was the victim of retaliation for engaging in activities
protected by the ADA and ADEA.
The ADA and ADEA prohibit retaliation against an
employee for, among other grounds, having “opposed any practice made unlawful” by either act.
29 U.S.C. § 623(d); 42 U.S.C. § 12203(a). A plaintiff relying on circumstantial evidence of
retaliation bears the burden of establishing a prima facie case, to wit: “(1) she was engaged in
protected conduct; (2) suffered an adverse employment action; and (3) there was a causal
connection between the protected conduct and the adverse action.” Colón-Fontanez v. Mun’y of
San Juan, 660 F.3d 17, 36 (1st Cir. 2011) (under ADA); see Bennett v. Saint-Gobain Corp., 507
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
Page 25
F.3d 23, 32 (1st Cir. 2007) (under ADEA). The defendant in turn must articulate a legitimate,
non-retaliatory reason for the adverse action. Collazo v. Bristol-Myers Squibb Mfg., Inc., 617
F.3d 39, 46 (1st Cir. 2010). At the third stage, the burden shifts back to the plaintiff to establish
that the employer’s proffered reason is a pretext for retaliation.
Id.
No underlying
discrimination need be proven; “[i]t is enough that the plaintiff had a reasonable, good-faith
belief that a violation occurred; that he acted on it; that the employer knew of the plaintiff's
conduct; and that the employer lashed out in consequence of it.” Mesnick v. Gen. Elec. Co., 950
F.2d 816, 827 (1st Cir. 1991). In addition to administrative charges, complaints to supervisors
are protected activities. Benoit v. Technical Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003)
(describing activities under Title VII). Requesting a reasonable accommodation is also protected
under the ADA. Valle-Arce, 651 F.3d at 198. “To defeat summary judgment in a retaliation
case, ‘a plaintiff must point to some evidence of retaliation by a pertinent decisionmaker.’”
Sánchez-Rodríguez v. AT&T Mobility P.R., Inc., --- F.3d ---, No. 10-2177, slip op. at 29 (1st
Cir. Mar. 8, 2012) (emphasis in original).
A.
Prima Facie Case
Plaintiffs argue that Negrón engaged in protected activities in two ways: (1) by
requesting medical leave, a change in hourly schedule, and a transfer in department or store
(“requests for a reasonable accommodation”) and (2) by complaining about being called a “crazy
old man,” being assigned unreasonable deadlines and amounts of work, and being deprived of
staff (the “harassing and discriminatory actions”). (Docket No. 31, p. 15). They allege that
Negrón suffered adverse actions in the form of (1) offensive comments; (2) alterations to
Negrón’s work schedule; (3) a reduction in his support staff; (4) alterations to his duties; (5) a
failure to investigate or take action regarding his complaints; and (6) his ultimate termination.
(Docket No. 31, p. 15-16).
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Civil No. 09-2201 (BJM) – Opinion and Order
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I assume for the moment that each of Negrón’s activities was protected under one of the
statutes, and that each of Wal-Mart’s actions were actionably adverse. Turning to causation,
plaintiffs point to the comments supporting their discrimination claims as evidence of “the
discriminatory and retaliatory animus” harbored against Negrón. (Docket No. 31, p. 16). As
discussed earlier, some of these comments were plain threats to terminate Negrón for requesting
time off for medical purposes, rendering his actual termination suspect. But aside from those
specific comments, plaintiffs have not shown the causal link matching up any pair of protected
activity and adverse action. The cited comments do not, for instance, suggest any connection
between requesting a change of department and losing support staff, or between complaining of
being called a “crazy old man” and being given a less favorable schedule. And to whatever
extent some less-obvious chain of causation exists, plaintiffs have offered absolutely no analysis
of what, precisely, that chain might be, beyond than the vapid assertion that “there can be no
doubt about the fact that there is a causal connection . . . .” (Docket No. 31, p. 16). Plaintiffs’
passing reference to “an extreme [sic] close temporal proximity” carries no indication, either in
evidence or in argument, of what two events were close in time, or indeed the dates on which any
particular pair of events occurred. “This is hardly a serious treatment of a complex issue,” and
plaintiffs’ failure to analyze this aspect of their prima facie case is functionally a waiver of the
position. See Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir. 2011).
In sum, the plaintiffs have only pointed to evidence establishing a prima facie
presumption of retaliation for Negrón’s termination, based on his requests to be excused for
medical appointments and his supervisors’ negative comments regarding those requests. Beyond
that, plaintiffs have failed to show that a jury could rationally find a causal link between any of
his other conduct and the allegedly adverse actions. Because plaintiffs carry the burden of
persuasion at this stage of the analysis, Wal-Mart is entitled to summary judgment on all other
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
Page 27
retaliation claims.
To round out the prima facie analysis of the surviving claim, I return to the first and
second elements of the case. Since plaintiffs’ claim is based on the undisputed fact that Negrón
was terminated, I consider whether Negrón made a protected request for accommodation. A
plaintiff need not prevail on a substantive ADA claim in order to prove retaliation. Carreras v.
Sajo, García & Partners, 596 F.3d 25, 35-36 (1st Cir. 2010). But to trigger an employer’s
obligations under the ADA, a request must be “sufficiently direct and specific,” and “explain
how the accommodation requested is linked to some disability.”
Reed, 244 F.3d at 261.
Negrón’s statement asserts that he requested time “in order to be able to go to my different
medical appointments,” and that the comments calling him a “crazy old man” were in response
to his requests to attend medical appointments. (Docket No. 31-2, ¶¶ 32, 34). His testimony
further refers to his supervisors’ opposition to his requests to “go to the [State Insurance] Fund.”
(Docket No. 18-32, p. 18). While plaintiffs’ development of this point leaves much to be
desired, I nonetheless conclude that they have discharged their relatively light burden of pointing
to evidence from which a jury could rationally conclude that they engaged in a protected activity.
Having discharged the light prima facie burden on this portion of their claim, I proceed to the
second and third steps of the McDonnell Douglas analysis.
B.
Non-Retaliatory Rationale and Pretext
Wal-Mart’s stated non-retaliatory reason for terminating Negrón is that he was absent on
November 1, 2008, and that as a “Decision-Making Day” employee, termination was authorized
as discipline. Plaintiffs’ argue that a jury may find his firing retaliatory because (1) Vecchioly
was the supervisor who, by Negrón’s account, orally extended his vacation until November 3,
2008, (2) Vecchioly terminated Negrón for not returning to work on November 1, 2008, and (3)
Vecchioly and his other supervisors had made retaliatory comments threatening to fire him.
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
(Docket No. 31, p. 21-22).
Page 28
In evaluating pretext, the relevant inquiry is only into the
decisionmaker’s “motivations and perceptions”; courts must not “review the accuracy or acumen
of [the decisionmaker’s] position, so long as it is not grounded in discriminatory animus.”
Bonefont, 659 F.3d at 126 (citing Bennett, 507 F.3d at 32 and Mesnick, 950 F.2d at 824)
(alterations in original). In other words, “the issue is not whether the employer’s reasons were
real, but merely whether the decisionmakers believed them to be real.” Ronda-Pérez v. Banco
Bilbao Vizcaya Argentaria-P.R., 404 F.3d 42,45 (1st Cir. 2005) (quoting Mulero-Rodríguez v.
Ponte, Inc., 98 F.3d 670, 674 (1st Cir. 1996)) (alteration marks omitted).
Wal-Mart makes much of Negrón’s admission that he knew vacation requests had to be
written, and that he never made a written request to extend his leave until November 3. But
regardless of whether Negrón’s failure to appear on November 1 would be grounds for
termination by the book, plaintiffs’ theory is that the alleged retaliatory animus put Negrón in
that position in the first place, and tainted the decision to firmly enforce the vacation policy.
Since the motive attributable to Wal-Mart is genuinely in dispute, it is not entitled to summary
judgment.
Wal-Mart also argues that the retaliation claims fail because he was given a raise and
positive performance reviews. (Docket No. 16, p. 21) (citing Bennett, 507 F.3d at 33 and
Freadman v. Metro. Prop. and Cas. Ins. Co., 484 F.3d 91, 101 (1st Cir. 2007)). But positive
employment actions are not an affirmative defense to liability; Bennett and Freadman merely
counsel courts to avoid a “narrow focus on timing” and take stock of the “larger sequence of
events.” See Freadman, 484 F.3d at 100-01. In both cases, plaintiffs’ anemic showings of
retaliation were undermined by evidence showing that they actually received positive evaluations
from their employers. See Bennett, 507 F.3d at 33 (temporal proximity alone insufficient to
establish pretext); Freadman, 484 F.3d at 100-01 (rejecting claim that employer departed from
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
Page 29
disciplinary policy). While I agree that the series of generally positive performance reviews
undermines the picture plaintiffs paint of relentless ridicule and constant criticism by spiteful
supervisors, I nonetheless conclude that a jury crediting his account could find that Wal-Mart’s
managers acted against Negrón because of his protected requests for time off, in spite of his
routine raises.
Because plaintiffs have demonstrated a triable issue of whether Negrón was terminated
because of his supervisors’ intent to retaliate for his medical leave requests, Wal-Mart is not
entitled to summary judgment on this claim.
V.
Claims under Puerto Rico Law
Wal-Mart challenges plaintiffs’ claims under Law 44 (disability discrimination), Law 80
(unjust dismissal), Law 100 (age discrimination), Law 115 (retaliation), and the claims of
Orengo and the conjugal partnership under Article 1802 of the Civil Code (tort liability).
(Docket No. 16, p. 22-29).
Plaintiffs only respond that their Commonwealth claims “are
contingent upon plaintiff’s ADA and ADEA causes of action,” and that “it is [their] position that
any discussions with regards to plaintiff’s causes of action under the local statutes, should be
made after this honorable Court issue[s] an opinion and order with regards to the motion for
summary judgment filed by the defendant.” (Docket No. 31, p. 22-23) (punctuation sic). But I
decline the invitation to procrastinate, and proceed to evaluate the remainder of Wal-Mart’s
motion.
A.
Discrimination Claims
Wal-Mart’s arguments regarding the claims under Laws 44 and 100 are correct as far as
they go: claims under both Commonwealth statutes are, on the merits, coextensive with their
corresponding federal claims. See Ruíz-Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 87 (1st Cir.
2008) (Law 44 and ADA equivalent); Dávila v. Corp. de P.R. para la Difusión Pública, 498 F.3d
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
Page 30
9, 18 (1st Cir. 2007) (Law 100 and ADEA substantively15 equivalent). Therefore, Wal-Mart is
entitled to summary judgment on the Law 44 and Law 100 claims to the same extent it is entitled
to summary judgment on the federal failure to accommodate and discrimination claims.
B.
Retaliation under Law 115
Law 115 prohibits discharge, threats, or discrimination against an employee who offers or
attempts to offer testimony or information before a legislative, administrative, or judicial forum
in Puerto Rico. 29 L.P.R.A. § 194a(a). To prevail, an employee must first present a prima facie
case of (1) participation in a protected activity and (2) adverse employment action. The burden
shifts to the employer to “claim and provide a nondiscriminatory legitimate reason for the
discharge.” Finally, the employee “should demonstrate that the alleged reason provided by the
employer was a mere pretext for the discharge.” 29 L.P.R.A. § 194a(c).
Wal-Mart disputes whether Negrón “engaged in any type of protected conduct at all.”
(Docket No. 16, p. 27).
As discussed above, plaintiffs chose not to address Wal-Mart’s
challenges to its Commonwealth claims, and so have not marshaled any evidence of how Negrón
has offered, or attempted to offer, testimony or information to a Puerto Rico legislative,
administrative, or judicial forum prior to his termination. And since “highlighting the relevant
facts and analyzing on-point authority” is a litigant’s job, I will neither scrutinize the record nor
scour the caselaw to determine whether any of Negrón’s conduct triggers liability under Law
115. See Velásquez Rodríguez, 659 F.3d at 175. Since Wal-Mart has demonstrated the absence
of evidence on this question and plaintiffs have not responded, it is entitled to summary
judgment.
15
The text of Law 100 prescribes a different burden-shifting framework than the ADEA; however, where
there is “no significantly probative evidence” of age animus behind a particular action, the relevant presumptions are
not triggered, and summary judgment on both claims is appropriate. Dávila, 498 F.3d at 18. Since the only age
discrimination claims being dismissed here are those for which plaintiffs failed to either establish a prima facie case
(there being no substantially younger replacement) or point to any direct evidence of discriminatory intent, further
analysis is unnecessary.
Negrón-Marty v. Wal-Mart Puerto Rico, Inc.
Civil No. 09-2201 (BJM) – Opinion and Order
C.
Page 31
Unjust Discharge under Law 80
Law 80 “requires employers to compensate employees who are discharged without just
cause.” Baltodano v. Merck, Sharp & Dohme (I.A.) Corp., 637 F.3d 38, 41–42 (1st Cir. 2011).
An employee who establishes that he was discharged shifts the burden of persuasion to the
employer to prove that the discharge was justified. Id. Law 80 provides a list of just causes for
termination. 29 L.P.R.A. § 185b.
Wal-Mart argues that it is entitled to judgment because Negrón violated its reasonable
regulations. (Docket No. 16, p. 23-24) (citing Hoyos v. Telecorp Comms., Inc., 488 F.3d 1, 6
(1st Cir. 2007)). But plaintiffs have established a triable question as to whether Negrón’s
termination was motivated by discrimination or retaliation, neither of which are just cause under
§ 185b. Therefore, Wal-Mart is not entitled to summary judgment on this claim. See also
Oliveras Zapata v. Univision P.R., Inc., Civil No. 09-1987 (BJM), 2011 WL 4625951, at *21
(D.P.R. Oct. 3, 2011).
D.
Article 1802 Claims
Finally, Wal-Mart argues that the tort claims of Orengo and the conjugal partnership are
time-barred. Article 1802 of the Civil Code establishes liability for “[a] person who by an act or
omission causes damage to another through fault or negligence.” 31 L.P.R.A. § 5141. Actions for
“obligations arising from the fault or negligence mentioned in section 5141” are subject to a oneyear statute of limitations. 31 L.P.R.A. § 5298; Ramos Lozada v. Orientalist Rattan Furniture,
Inc., 130 D.P.R. 712, 718, 1992 P.R.-Eng. 755,597. An action under article 1802 accrues,
starting the one-year clock running, when “the aggrieved party knows (or should have known) of
both his injury and the identity of the party who caused it.” González Figueroa v. J.C. Penney
P.R., Inc., 568 F.3d 313, 318 (1st Cir. 2009).
Here, plaintiffs filed their original complaint on November 25, 2009, meaning that only
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Civil No. 09-2201 (BJM) – Opinion and Order
Page 32
claims that had not prescribed prior to November 25, 2008 are timely. It is undisputed that
Negrón was fired on November 7, 2008. Since plaintiffs filed suit over a year after Negrón’s
termination, they have the burden of proving that they did lacked the requisite knowledge until a
later date. See Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 19 (1st Cir. 2000). They
have not attempted to do so. And since plaintiffs do not raise the argument, I need not explore
why Negrón’s administrative charge would not change the outcome; I merely highlight the First
Circuit’s analysis that derivative Article 1802 claims “lie beyond the reach” of any tolling effect
of an employee’s EEOC charge. See González Figueroa, 568 F.3d at 322.
In sum, Wal-Mart has demonstrated that it is entitled to summary judgment on Orengo
and the conjugal partnership’s Article 1802 claims because they are time-barred.
CONCLUSION
For the foregoing reasons, Wal-Mart’s motion for summary judgment is GRANTED IN
PART.
Specifically, Wal-Mart’s requests for summary judgment on (1) the federal and
Commonwealth claims for discriminatory termination, (2) the federal and Commonwealth claims
for a hostile work environment, (3) the ADA retaliation claim for requesting time off for
appointments and medical leave, and (4) the unjust termination claim under Law 80 are
DENIED. All other claims under the ADEA, ADA, Law 44, Law 100, and Law 115 are
DISMISSED WITH PREJUDICE. Orengo and the Negrón-Orengo conjugal partnership’s
claims under Article 1802 are DISMISSED WITH PREJUDICE. Wal-Mart’s motion to strike
Negrón’s statement in its entirety is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of March, 2012.
S/Bruce J. McGiverin
BRUCE J. McGIVERIN
United States Magistrate Judge
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