Taboas v. Fiddler Gonzalez Rodriguez, PSC

Filing 108

OPINION AND ORDER re 51 motion for summary judgment; re 54 Motion for Partial Summary Judgment; re 60 Motion to Strike; and 76 Motion to Strike. The Court DENIES defendant FGR's motion for summary judgment (Docket No. 51), plaintiff Tab oas' motion for partial summary judgment (Docket No. 54), and plaintiff Taboas' second motion to strike (Docket No. 76.) The Court GRANTS IN PART AND DENIES IN PART plaintiff Taboas' first motion to strike (Docket No. 60.) Signed by Judge Francisco A. Besosa on 08/20/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIA DEL CARMEN TABOAS,
Plaintiff,
CIVIL NO. 13-1205 (FAB)

v.
FIDDLER, GONZALEZ & RODRIGUEZ,
PSC,
Defendant.

OPINION AND ORDER
BESOSA, District Judge.
Before the Court are defendant Fiddler, Gonzalez & Rodriguez,
PSC

(“FGR”)’s

motion

for

summary

judgment

(Docket

No.

51);

plaintiff Maria del Carmen Taboas (“Taboas”)’s motion for partial
summary judgment (Docket No. 54); and plaintiff Taboas’ two motions
to strike (Docket Nos. 60 & 76).

For the reasons that follow,

plaintiff Taboas’ motions to strike are GRANTED IN PART AND DENIED
IN PART; FGR’s motion for summary judgment is DENIED; and plaintiff
Taboas’ motion for partial summary judgment is DENIED.
I.

Plaintiff Taboas’ Motions to Strike
Before turning to FGR’s motion for summary judgment, the Court

addresses plaintiff Taboas’ motions to strike various exhibits
submitted by FGR in support of its motion.

(Docket Nos. 60 & 76.)

After addressing each category of exhibits in turn, the Court
GRANTS IN PART AND DENIES IN PART Taboas’ first motion to strike

Civil No. 13-1205 (FAB)

2

(Docket No. 60), and DENIES her second motion to strike (Docket
No. 76).
A.

Chart Summaries
Plaintiff

Taboas argues

that

two

charts summarizing

employee billings (Docket Nos. 51-11 & 51-29) are inadmissible at
the summary judgment stage because defendant failed to comply with
the “made available” requirement of Federal Rule of Evidence 1006.
Rule 1006, however, applies where “a summary” is being used “to
prove the content of voluminous writings.”

Fed. R. Evid. 1006.

Because the charts are productivity reports offered as independent
business records produced and kept within the ordinary course of
FGR’s business and admissible under Federal Rule of Evidence
803(6), the charts are “the writings at issue, not summaries of
other evidence.”

U-Haul Int’l., Inc. v. Lumbermens Mut. Cas. Co.,

576 F.3d 1040, 1046 (9th Cir. 2009).

Thus, Rule 1006 does not

apply, and plaintiff Taboas’ motion to strike (Docket No. 60) the
charts at docket numbers 51-11 and 51-29 is DENIED.
B.

Hearsay Statements
Plaintiff

including

Taboas seeks

correspondence

and

to

exclude

Shareholders’

several

exhibits,

statements,

as

inadmissible hearsay. (Docket Nos. 51-14; 51-15 at p. 21; 51-16 at
pp. 59-61; 51-17 at pp. 10, 14-16, 24; 51-21 at p. 29; 51-22; 51-23
at ¶¶ 9-10; 51-24 at p. 30; & 51-27 at ¶¶ 17-21.)

“Hearsay

evidence, inadmissible at trial, cannot be considered on a motion

Civil No. 13-1205 (FAB)
for summary judgment.”

3
Garside v. Osco Drug, Inc., 895 F.2d 46, 50

(1st Cir. 1990) (internal citations omitted).

Taboas’ motion

(Docket No. 60) is GRANTED insofar as the statements are offered
for the truth of the matters asserted therein, but DENIED as to
non-hearsay purposes.

See, e.g., Vazquez-Valentin v. Santiago-

Diaz, 459 F.3d 144, 151 (1st Cir. 2006) (excluded documents were
not hearsay because they were not offered to prove the truth of the
matter asserted); Keisling v. SER-Jobs for Progress, Inc., 19 F.3d
755, 762 (1st Cir. 1994) (exclusion of statements that were not
offered to prove the truth of the matters asserted therein was
error warranting reversal); Cameron v. Comty. Aid for Retarded
Children, Inc., 335 F.3d 60, 65 n.2 (2d Cir. 2003) (noting that
because the statements were offered to establish defendant’s state
of mind, rather than to prove the truth of the matter assert
therein, they did not constitute hearsay).
C.

Statements by Kenneth Bury and Gloria Perez de Martinez
Plaintiff Taboas seeks to exclude statements made by

witnesses Kenneth Bury (“Bury”) and Gloria Perez de Martinez
(“Perez”) regarding FGR’s decisions with respect to plaintiff
Taboas’ salary increases, bonuses, and promotions, arguing that the
witnesses are not competent to testify about those facts.
Nos. 51-6 and 51-7.)

(Docket

Affidavits submitted in support of a motion

for summary judgment must “contain[] relevant information of which
[the

affiant]

has

first-hand

knowledge.”

Santiago-Ramos

v.

Civil No. 13-1205 (FAB)

4

Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000)
(internal quotation marks and citation omitted).
In support of its motion for summary judgment, FGR
repeatedly indicates that FGR’s Executive Committee,
assessed and analyzed plaintiff’s production
reports; concluded that plaintiff was a
chronic
under-producer;
believed
the
information provided to them to be true;
considered that plaintiff had failed to
improve her production despite the sanctions
had been imposed against her; and understood
that it was in the firm’s best interest to
terminate her employment.
(Docket No. 51-1 at p. 3.)

Both Bury and Perez testified in their

depositions that they did not attend any Executive Committee or
Board of Directors meeting in which Taboas was discussed.
Nos. 60-2 at pp. 46-7; 60-1 at p. 41.)
in

their

unsworn

declarations

(Docket

Nevertheless, both stated

that,

“[d]ue

to

her

poor

productivity,” Taboas received or did not receive certain bonuses
or salary increases.
¶ 10.)

(Docket Nos. 51-7 at ¶¶ 14-16; 51-16 at

Because Bury and Perez admittedly did not participate in

the committee or board meetings in which FGR made those decisions
regarding Taboas, neither have personal knowledge of the decisions
and

both

decisions.

are

therefore

incompetent

to

testify

about

those

Accordingly, the Court GRANTS plaintiff Taboas’ motion

to strike (Docket No. 60) paragraphs 14 through 16 of Bury’s
declaration (51-7), and paragraph 10 of Perez’s declaration (Docket
No. 51-6).

Civil No. 13-1205 (FAB)
D.

5

Salvador Antonetti Zequeira and Pedro Manzano Yates’s
Sham Affidavits
Lastly, plaintiff Taboas moves to strike two “sham” or

deficient statements made under penalty of perjury by Salvador
Antonetti-Zequeira

(“Antonetti”)

(Docket

No. 51-23)

and

Manzano-Yates (“Manzano”) (Docket Nos. 51-24 & 61-1).
interested

witness

has

given

clear

answers

to

Pedro

“When an

unambiguous

questions, he cannot create a conflict and resist summary judgment
with an affidavit that is clearly contradictory, but does not give
a satisfactory explanation of why the testimony is changed.”
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 5 (1st Cir.
1994) (internal citation omitted).
Here, Antonetti’s original deposition testimony cannot be
classified

as

providing

“clear

answers”

contradictory” to his later declaration.

or

being

“clearly

In his deposition, when

asked to be more specific about the date of the meeting in
question, Antonetti responded, “Now it’s very difficult,” and
later, “I think January or February.”

(Docket No. 60-3 at p. 16.)

After refreshing his memory regarding the exact date of the meeting
(see Docket No. 84-5 at ¶ 6), Antonetti stated in an unsworn
declaration under penalty of perjury that the meeting took place on
January 14, 2009.

(Docket No. 51-23 at ¶¶ 17-18.)

When asked at his deposition whether FGR had considered
Taboas’ billables at the time she was ultimately dismissed, Manzano
testified,

Civil No. 13-1205 (FAB)

6

And what we had undertaken, or what we had
decided to do, and had informed her that we
would do, and what we had stayed for
particular reasons, was no longer necessary;
and then we communicated the termination. . .
. We looked at her entire history. . . . I’m
not looking at January thirty first, sir, I
said that the decision had been made in
February two thousand eleven, and then after
that we were authorized by the board, and then
we looked at the numbers in March. In March,
but we looked at the entire history.
(Docket No. 76-1 at pp. 49-50.) Manzano subsequently testified, “I
believe I haven’t [answered your question], because after two
thousand nine she was . . . she did not meet budget, and certainly,
in two thousand ten she did not meet budget.”

(Docket No. 84-6 at

p. 52.) Taboas claims that this testimony conflicts with Manzano’s
subsequent unsworn statement, in which he states, “Taboas’ billing
as of February 2011 was not considered by FGR’s Executive Committee
in the decision to terminate her employment at the firm or in the
decision to execute her termination effective April 30, 2011.”
(Docket No. 61-1 at ¶ 7.)
The pertinent portions of the record convince the Court
that the contested affidavits are not “simply an attempt to create
a ‘sham fact issue.’”

See Law Co. v. Mohawk Constr. & Supply Co.,

577 F.3d 1164, 1169 (10th Cir. 2009) (internal quotations and
citation omitted).

Rather, the witnesses’ deposition testimonies,

particularly when examined with more complete excerpts, “reflect[]
confusion which the affidavit[s] attempt[] to explain.”
Accordingly,

plaintiff

Taboas’

motions

to

strike

Id.

Manzano’s

Civil No. 13-1205 (FAB)

7

affidavit (Docket No. 76) and Antonetti’s affidavit (Docket No. 60)
are DENIED.
II.

Motions for Summary Judgment
On

alleging

March

8,

2013, Taboas

wrongful

filed

termination

in

a

complaint

violation

against

of

the

FGR
Age

Discrimination and Employment Act (“ADEA”), 29 U.S.C. §§ 621 et
seq., and supplemental Puerto Rico law claims pursuant to Laws 100
and 80 (“Law 100” and “Law 80”), P.R. Laws. Ann. tit. 29 §§ 146 et
seq. and §§ 185a et seq, respectively.

(Docket No. 1.)

On June 6,

2013, FGR moved for summary judgment, arguing (1) that plaintiff
Taboas’ claims pursuant to the ADEA and Law 100 are time-barred;
(2) that plaintiff Taboas’ ADEA claim fails on its merits; and
(3) that plaintiff
Laws 100 or 80.

Taboas’

has

no

(Docket No. 51.)

viable claims

pursuant

to

Plaintiff Taboas moves for

summary judgment of her Law 80 claim, contending that FGR has not
carried

its

burden

in

rebutting

the

presumption

of

termination triggered by her allegations and proof.

wrongful
(Docket

No. 54.)
A.

Time Bar
Defendant FGR seeks dismissal of plaintiff Taboas’ ADEA

and Law 100 claims as time-barred.
1.

ADEA Claim
The ADEA prohibits discrimination on the basis of

age “against any individual with respect to compensation, terms,

Civil No. 13-1205 (FAB)

8

conditions, or privileges of employment.”

29 U.S.C. § 623(a)(1).

Because Puerto Rico has a law prohibiting employment discrimination
on the basis of age and an agency authorized to seek relief from
those discriminatory practice, see 29 U.S.C. § 633(b), employees
must file a charge of unlawful age discrimination in employment
with

the

Equal

Employment

Opportunity

Commission

(“EEOC”)

“within 300 days after the alleged unlawful practice occurred, or
within 30 days after receipt by the individual of notice of
termination of proceedings under State law, whichever is earlier,”
29 U.S.C. § 626(d)(1)(B).

The ADEA filing period is not a

jurisdictional prerequisite to suit, but rather a statute of
limitations issue.

Kale v. Combined Ins. Co. of Am., 861 F.2d 746,

751-52 (1st Cir. 1988).

Failure to file a timely charge of age

discrimination bars a subsequent action pursuant to the ADEA.
O’Neill v. N.Y. Times Co., 145 Fed. Appx. 691, 694 (1st Cir. 2005);
Am. Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 123 (1st
Cir. 1998).

“It is by now well established that, in employment

discrimination actions, limitations periods normally start to run
when the employer’s decision is made and communicated to the
affected employee,” Morris v. Gov’t. Dev. Bank of P.R., 27 F.3d
746, 750 (1st Cir. 1994) (citing Del. State. Coll. v. Ricks, 449
U.S. 250, 261 (1980)), and not the date on which employment ceased.
Miller v. Int’l. Tel. & Tel. Corp., 755 F.2d 20, 23 (2d Cir. 2000);
Leite v. Kennecott Copper Corp., 558 F. Supp. 1170, 1172 (D. Mass.

Civil No. 13-1205 (FAB)

9

1983) (citing Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (per
curiam) (“[T]he proper focus is on the time of the discriminatory
act, not the point at which the consequences of the act become
painful.”) and Pfister v. Allied Corp., 539 F. Supp. 224, 226
(S.D.N.Y. 1982)).
FGR contends that its Executive Committee made the
decision to terminate plaintiff Taboas’ employment in November,
2008, and communicated that decision to her on January 14, 2009.
(Docket No. 51-1 at p. 6.)

Taboas responds that FGR did not

provide her with definite notice of her dismissal until March 30,
2011.

(Docket No. 64 at pp. 4-7.)

The uncontested facts reveal

that FGR decided to offer Taboas an of-counsel contract in late
2008.

(Docket

No.

51-23

at

¶¶

13-16.)

Jose

Acosta-Grubb

(“Acosta”) and Antonetti met with Taboas on January 14, 2009 and
offered her an of-counsel contract, providing her with a copy of
it.

(Docket Nos. 51-4 at pp. 80-3; 51-27 at ¶¶ 8-10; 51-23 at

¶¶ 17-20.) Later that same night, however, Acosta called Taboas at
her home to inform her that “Pete and Eduardo and Freddie1 . . .
are on board” and that “things were going to continue the same.”
(Docket No. 51-19 at p. 23.)

On January 20, 2009, Taboas informed

Antonetti that she did not have information that she had requested
regarding the of-counsel contract; Antonetti responded to her that

1

These names refer to members of FGR’s Executive Committee at
the time. (Docket No. 51-19.)

Civil No. 13-1205 (FAB)

10

she would continue as an employee of the firm.
at ¶ 7.)

(Docket No. 63-29

Taboas thus worked as an FGR employee for two additional

years, until April 30, 2011.

(Docket Nos. 1 at ¶ 3.19; 9 at ¶ 30.)

The of-counsel contract was not mentioned again until March 30,
2011, when Acosta offered Taboas the same contract, which she
rejected.

(Docket Nos. 51-19 at pp. 37-38; 63-7 at p. 95.)
While “[m]ere continuity of employment, without

more, is insufficient to prolong the life of a cause of action for
employment discrimination,” Ricks, 449 U.S. at 257 (citing United
Air

Lines,

Inc.

v.

Evans,

431

U.S.

553,

558

(1977)),

the

termination date must be “the inevitable consequence” of an actual
or constructive discharge.

See Cardoza-Rodriguez, 133 F.3d at 123

(applying Ricks to hold that the statute of limitations began to
run when each employee accepted a voluntary retirement package,
rather than when their employment actually terminated); Alicea v.
Ondeo de P.R., 389 F. Supp. 2d 269, 275 (D.P.R. 2005) (Dominguez,
J.) (“[C]ontinuity of employment . . . is insufficient to prolong
the life of this type of cause of action.”) (internal citations
omitted).

The statute of limitations begins to run once “the

employee receives a definite notice of the termination.”

Miller,

755 F.2d at 23 (emphasis added) (internal citations omitted).

FGR

claims that the January 14, 2009 meeting at which Acosta and
Antonetti provided Taboas with an of-counsel contract triggered the

Civil No. 13-1205 (FAB)

11

statute of limitations.

Accepting this conclusion would require a

strained interpretation of the uncontested facts.
At the January 14, 2009 meeting, FGR hinted at a
change in Taboas’ employment arrangement, but did not present her
with a definite “take it or leave it” choice between accepting an
of-counsel agreement and losing her job altogether.
Rodriguez, 133 F.3d at 123.

See Cardoza-

The only time a definite termination

was communicated to Taboas was at the March 30, 2011 meeting, when
FGR offered her the take it or leave it choice between accepting an
of-counsel contract and terminating her employment at FGR. (Docket
Nos. 51-19 at pp. 37-38; 63-7 at p. 95.)

Thus, the statute of

limitations began to run on March 30, 2011.

Because plaintiff

Taboas filed her charge with the EEOC on December 20, 2011 (Docket
No. 1 at ¶ 3.22), 265 days later, she filed within the 300-day
deadline.
2.

Law 100 Claim
The Supreme Court of Puerto Rico has held that the

one-year
“tortious

limitation

period

discrimination”

applicable
also

to

applies

to

civil
Law

actions
100

for

claims.

Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 60
(1st Cir. 2005); Damiani Montalban v. P.R. Marine Mgmt., Inc., 986
F.2d 1407, 3 (1st Cir. 1993) (citing Olmo v. Young & Ribicam of
P.R., Inc., 10 Off. Trans. 967 (1981)).

An action pursuant to Law

100 accrues on the date the employee receives notice of his or her

Civil No. 13-1205 (FAB)

12

termination, Damiani Montalban, 986 F.2d at 3, or, in a “take it or
leave

it”

constructive

discharge

employee elects to retire.”

scenario,

on

“the

date

the

Cardoza-Rodriguez, 133 F.3d at 124.

Puerto Rico law provides for tolling of the statute
of limitations for Law 100 claims once a plaintiff files an
administrative

charge with

the

EEOC

and

notifies

his

or

her

employer of the charge. P.R. Laws. Ann. tit. 31 § 5303; RodriguezTorres, 399 F.3d at 61.

Taboas filed a charge, of which FGR had

notice, with the EEOC on December 20, 2011, tolling the statute of
limitations.

(Docket No. 1 at ¶ 3.22.)

The EEOC completed its

administrative proceedings on December 14, 2012, when it issued
Taboas a right to sue letter.

Id. at ¶ 3.23.

When Taboas filed

suit on March 8, 2013, 349 un-tolled days had elapsed since she
received notice of her termination on March 30, 2011. Accordingly,
plaintiff Taboas’ Law 100 claim is not time-barred, and FGR’s
motion for summary judgment of plaintiff Taboas’ ADEA and Law 100
claims as time-barred is DENIED.
B.

ADEA Age Discrimination Claim - the Merits
FGR seeks summary judgment of plaintiff Taboas’ ADEA age

discrimination claim.

(Docket No. 51.)

In ADEA claims where, as

here, the employee offers no direct evidence of discrimination, a
three-step burden-shifting framework applies. Velazquez-Fernandez
v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 2007) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)).

Civil No. 13-1205 (FAB)

13

The employee must first show:

(1) that she was at least forty

years old when the adverse employment action was taken against her;
(2)

that

her

job

performance

met

the

employer’s

legitimate

expectations; (3) that she suffered an adverse employment action;
and (4) that the employer filled the position, thereby showing a
continuing need for the services that she had been rendering.
Melendez v. Autogermana, Inc., 622 F.3d 46, 50 (1st Cir. 2010).
Once

established,

the

prima

facie

showing

“gives

rise

to

a

rebuttable presumption that the employer engaged in intentional
age-based discrimination.”

Woodman v. Haemonetics Corp., 51 F.3d

1087, 1091 (1st Cir. 1995) (citations omitted).

The burden of

production then shifts to the employer “to produce sufficient
competent evidence to allow a rational fact-finder to conclude that
a

legitimate

termination.”

non-discriminatory

reason

existed

for

the

Melendez, 622 F.3d at 50. If the employer presents

such a reason, the presumption is removed; the employee must then
prove that the employer’s proffered reason was mere pretext, and
that “the record evidence would permit a reasonable jury to infer
that the real reason was discriminatory animus based on [his or
her] age.”

Id. (internal quotations and citation omitted).
1.

Prima Facie Case
The parties do not dispute the first and third prima

facie elements.

Plaintiff Taboas was 55 years old when FGR

notified her of her dismissal on March 30, 2011.

(Docket Nos. 1 at

Civil No. 13-1205 (FAB)
¶ 3.19; 51-4 at p. 7.)
demonstrate

the

14

FGR contends, however, that Taboas fails to

second

and

fourth

elements

—

that

her

job

performance met its legitimate expectations, and that FGR filled
her position.

(Docket No. 51-1 at p. 11.)
a.

Legitimate Job Expectations
FGR

argues

that

plaintiff

Taboas’

job

performance did not meet FGR’s legitimate expectations because she
failed to satisfy the firm’s yearly production goal and assigned
billing budget during most or all of her years at the firm.
(Docket Nos. 51-4 at pp. 34-35; 51-7 at ¶¶ 9-11; 51-11.)

As the

First Circuit Court of Appeals has advised, however, the Court
cannot “consider the employer’s alleged nondiscriminatory reason
for taking an adverse employment action when analyzing the prima
facie case.”

Melendez, 622 F.3d at 51 (internal quotations and

citation omitted).
performance

in

Because FGR invokes Taboas’ allegedly poor

arguing

that

she

was

dismissed

for

non-

discriminatory reasons, the Court cannot rely on that performance
in assessing whether she satisfied the legitimate expectations
prong.

See id.

(“If we were to consider [a defendant’s] stated

reason for firing [a plaintiff] as evidence that [a plaintiff] was
not meeting the company’s expectations, we would bypass the burdenshifting analysis and deprive the plaintiff of the opportunity to
show that the nondiscriminatory reason was in actuality a pretext

Civil No. 13-1205 (FAB)
designed

to

mask

15

discrimination.”)

(internal

quotations

and

citation omitted).
To establish that she was indeed meeting FGR’s
legitimate expectations, Taboas points to the following facts:
(1) she worked at FGR for more than 32 years (Docket Nos. 51-4 at
p. 23; 51-6 at ¶ 5); (2) she was promoted to the position of Senior
Associate in 1986, and the position of Member in 1990 (Docket
Nos. 51-4 at p. 51 & 51-6 at ¶¶ 7-8); (3) she received praise for
the quality of her work on numerous occasions (Docket Nos. 63-11 —
63-20); and (4) she received salary increases and at least one
performance bonus during her tenure at the firm (Docket No. 63-6 at
pp. 25-27).

“Mindful that an employee’s burden at the prima facie

stage is not particularly onerous,” the Court finds the evidence
minimally sufficient to show that a triable issue exists as to
whether Taboas was meeting FGR’s legitimate expectations at the
time of her dismissal.
b.

See Melendez, 622 F.3d at 51.

FGR’s Continuing Need for the Position
FGR further contends that plaintiff Taboas

cannot satisfy the fourth prima facie prong because it did not hire
anyone to replace her.

(Docket No. 51-1 at p. 13.)

Taboas argues

that FGR rehired attorney Jose Ramirez-Coll (“Ramirez”) to occupy
the same position from which she was dismissed — Member in the
litigation division.

(Docket No. 64 at p. 11.)

FGR concedes its

rehiring of Ramirez to the position of Member in November of 2011,

Civil No. 13-1205 (FAB)

16

but disputes that he replaced Taboas.
79 at p. 5.)

(Docket Nos. 51-1 at p. 13;

In 2010, when Ramirez worked as a Junior Partner at

FGR, he informed the firm that he wanted to pursue employment
elsewhere.

(Docket No. 51-3 at ¶ 51.)

In an effort to retain

Ramirez, FGR told him that it was planning to promote him to the
position of Member in December, 2010.
and 51-27 at ¶ 37.)
March, 2010.

(Docket Nos. 51-3 at ¶ 52

Ramirez nevertheless resigned from FGR in

(Docket Nos. 51-3 at ¶ 53 & 51-27 at ¶ 38.)

FGR

contends that it rehired Ramirez as a Member in 2011 not because
FGR sought to replace Taboas, but because Ramirez would have been
promoted to that position within a few months of his earlier
departure had he stayed. (Docket Nos. 51-3 at ¶ 56 & 51-27 at
¶ 41.)
The

Court

finds

that

the

record

contains

sufficient evidence to suggest “that the employer sought some form
of replacement performance, which would demonstrate its continued
need for the same services and skills.” Hidalgo v. Overseas Condado
Ins. Agencies, Inc., 120 F.3d 328, 332-33 (1st Cir. 1997)(internal
quotations and citations omitted). A reasonable factfinder could
conclude that FGR hired Ramirez to fill the position that Taboas
had recently vacated, thereby showing the firm’s continued need for
the position, as well as the services and skills that Taboas
previously provided.

Accordingly, plaintiff Taboas has satisfied

Civil No. 13-1205 (FAB)

17

her prima facie showing, and the burden shifts to FGR to produce a
legitimate and non-discriminatory reason for Taboas’s termination.
2.

FGR’s Legitimate and Non-Discriminatory Reasons for
Dismissing Taboas
Even if plaintiff Taboas is able to meet all four

elements of a prima facie case, defendant FGR contends that it had
two legitimate and non-discriminatory reasons for dismissing her:
(1) Taboas consistently failed to meet FGR’s production goals; and
(2) Taboas was difficult to work with, according to both clients
and her colleagues at the firm.

(Docket No. 51-1 at pp. 13-15.)

Uncontested facts establish that, at all relevant times, FGR
attorneys had yearly production goals of 2,000 billable hours, and
specific billing budgets for each attorney.
¶ 16; 51-7 at ¶ 6.)

(Docket Nos. 51-3 at

Plaintiff Taboas consistently fell short of

those production goals during her tenure at FGR. (Docket Nos. 51-4
at pp. 34-35; 51-7 at ¶¶ 9-10; 51-11.)

From 1992 until 2011,

Taboas only met her assigned production budget twice, and she never
reached FGR’s hours-based production goal.
pp. 34-35; 51-7 at ¶¶ 10-13; & 51-11.)

(Docket Nos. 51-4 at
Additionally, several

Shareholders in the litigation division found Taboas difficult to
work with, and two clients communicated to her superiors their
desires to have her removed from their cases (Docket Nos. 51-3 at
¶ 29; 51-8 at p. 2; 51-15 at p. 21; 51-22; 51-16 at pp. 30, 59, 60;
51-23 at ¶ 9; 51-4 at pp. 42, 69, 73; 51-27 at ¶¶ 18-21; 51-17 at
pp. 10, 24.)

This is enough “to enable a rational factfinder to

Civil No. 13-1205 (FAB)

18

conclude that there existed a nondiscriminatory reason” for Taboas’
dismissal.

Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 248

(1st Cir. 1997); see also Garcia v. Bristol-Myers Squibb Co., 535
F.3d 23, 31 (1st Cir. 2008) (employer’s assertion that employee’s
discharge was due to deficient performance satisfied employer’s
burden of providing a legitimate, nondiscriminatory reason).
3.

Pretext and Discriminatory Animus
At the final stage, the burden shifts to plaintiff

Taboas to put forth sufficient facts for a reasonable fact-finder
to conclude that defendant FGR’s proffered reasons for discharging
her are mere pretext masking discriminatory animus.
622 F.3d at 52.

See Melendez,

To make a showing of pretext, 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.”

Id. (quoting

Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991)).
“Satisfying this third-stage burden does not necessarily require
independent

evidence

of

discriminatory

Autozone, 361 F.3d 62, 72 (1st Cir. 2004).
show,

for

example,

“such

animus.”

Rathbun

v.

Rather, an employee may

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
[with or without additional evidence and inferences properly drawn

Civil No. 13-1205 (FAB)

19

therefrom] infer that the employer did not act for the asserted
non-discriminatory reasons.”

Hodgens v. Gen. Dynamics Corp., 144

F.3d 151, 168 (1st Cir. 1998) (internal quotations and citations
omitted)(alterations in original).
Upon review of the record, the Court finds several
aspects that, taken together, support a factfinder’s conclusion
that FGR was motivated by age-based discrimination, which raise a
genuine issue of material fact that defeats summary judgment.
These include (1) the ambiguity of FGR’s production requirements
and resulting uncertainty regarding whether Taboas violated those
requirements;

(2)

ambiguity

about

whether

Taboas’s

underproductivity was a result of her being assigned cases with low
billing

rates;

(3)

the

lack

of

documentation

evidencing

the

decisions made by FGR’s Executive Committee regarding hiring and
firing; and (4) FGR’s disparate treatment of younger employees.
a.

Ambiguous Production Requirements
FGR places great weight on the fact that Taboas

consistently failed to meet her production requirements. FGR,
however, has not produced any document that explicitly informs
Taboas of an hours requirement, only documents that refer to
contemplated or suggested “goals”.

(See Docket Nos. 51-3 at ¶ 16

(“production goal” of 2,000 hours per year); 51-7 at ¶ 8 (same)).
FGR

issued

written

promotion

guidelines

in

2006,

but

these

guidelines did not include numbers indicating production goals or

Civil No. 13-1205 (FAB)
requirements.

(Docket

20
No.

51-5

at

pp.

3-4.)

FGR

points

to

communications between its lawyers and Taboas that refer to an
hourly standard used to determine eligibility for bonus and salary
increases.

On August 11, 2004, Antonetti sent an email to the

litigation department regarding hours and bonuses, noting that “a
standard of 2000 billable hours is used as a minimum for 10 points,
and points for over 2000 are added and points are subtracted if the
2000 are not achieved.”

(Docket No. 51-9.)

The e-mail further

noted that, “It has been discussed among the Partners to require
the minimum of 2000 for consideration of promotions, raises and
bonuses.”

Id. FGR produced no evidence, however, to indicate that

the 2,000-hour minimum was ever adopted, or that it served as a
minimum employment requirement.

On January 13, 2005,2 Antonetti

delivered a letter to Taboas that stated,
in view of your production and other factors,
you will receive 50% of the bonus distributed,
if any in excess of the basic bonus during the
fiscal year 2004-2005. The Board expects that
this measure will serve as a positive
encouragement,
since
we
understand
your
enhanced capacity to bring your production to
what is expected of a Shareholder of the law
firm.
(Docket No. 51-12.)

Antonetti wrote Taboas a letter on February

24, 2005, noting that her “billable hours [had] not reached the
1,800 hours except in 2002.”

2

(Docket No. 51-8 at p. 2.)

On

A hand-written note at the top of this letter indicates that
it was received on January 19, 2005. (Docket No. 51-12.)

Civil No. 13-1205 (FAB)

21

December 14, 2005, Rafael Vizcarrondo delivered a letter to Taboas
stating, “The Board of Directors unanimously determined that you
will not receive the salary increase approved for the Members for
the year 2005-2006. The Board expects this measure serves as a
positive encouragement to improve your performance. . . .” (Docket
No.

51-14.)

foreclose

an

The

language

inference

that

in

these

those

communications

measures

were

does

intended

not
as

inducements, rather than sanctions or notices of requirements
necessary for continued employment, as FGR suggests.
FGR does, however, provide documents evidencing
that Taboas was aware of her yearly billing budgets, and that she
failed to meet them for consecutive years, from 2008 to 2010.
(Docket No. 51-10 pp. 1-45.)

The billing reports do indicate that

Taboas was above-budget prior to her dismissal, in December 2010
and January 2011.

Id. at pp. 46-48.

As explained below, however,

the Court finds an issue regarding the rates at which Taboas was
assigned to bill.
b.

Taboas’s Assignments
While Taboas may be unable to point to evidence

that would directly refute the legitimacy of FGR’s proffered
reasons for her dismissal, her contentions that FGR assigned her
significant amounts of government contract work to be billed at

Civil No. 13-1205 (FAB)

22

rates well below her standard hourly rate3 (Docket No. 64 at
pp. 21-2) create a factual dispute regarding whether FGR leadership
played a part in preventing Taboas from reaching her standard
budget.

FGR’s attorney budgets were calculated using the standard

rate for Members, which in 2009-2011 was $260 per hour.
No. 51-7 at ¶ 6.)

(Docket

In 2005, Taboas wrote to Antonetti regarding her

productivity report, pointing out that she had been assigned
multiple matters, including government contract work, to be billed
at $125.00 per hour, while her standard rate was $230.00.
No. 63-25.)

(Docket

Taboas noted that in order to produce her standard

budget at the reduced rate, she would have had to bill 2,560 hours
in a year, whereas if she had been billing at her standard rate she
would have easily met her standard budget.

Id.

When asked about

this in his deposition, Antonetti testified that “it would not be
fair to ask somebody to work twenty five hundred hours below
allowance a year.”

(Docket No. 63-4 at p. 57.)

This factual

dispute supports an inference that FGR’s proferred legitimate
reasons for Taboas’s dismissal were mere pretext.
c.

FGR’s’ Executive Committee Decisions
FGR

contends

that

Taboas

cannot

produce

evidence to refute that its Executive Committee based its decision
to dismiss Taboas on (1) her underproductivity; (2) her knowledge

3

Billing for government work at FGR was capped at $125.00 per
hour. (Docket No. 63-4 at p. 50.)

Civil No. 13-1205 (FAB)

23

of her underproductivity; (3) FGR’s failed attempts to encourage
greater productivity from Taboas; and (4) clients and Shareholders
finding Taboas difficult to work with.

(Docket Nos. 51-24 at

pp. 26, 27, 30, 34; 51-25 at ¶¶ 10-11; 51-3 at ¶¶ 36-37; 51-23 at
¶¶ 14-15; 51-11.)

FGR further argues that it did not dismiss

Taboas prior to 2009, despite her “chronic lack of productivity,”
because

a

new

implementing

wave

of

cost-saving

administrative
measures,

leadership,

took

focused

control

of

on

FGR’s

administration following the 2008 financial crisis and implemented
more aggressive compliance with production standards.
No. 51-1 at p. 19.)

(Docket

As a result of the new cost-saving measures,

FGR avers, the Executive Committee decided to offer of-counsel
contracts to several chronic underproducers, including Taboas. Id.
FGR does not provide meeting minutes, or any
other form of documentation, to support these business decisions.
To the contrary, FGR claims that no Executive Committee meeting
minutes were kept.
any

documentation

(Docket No. 63-2 at pp. 22-23.)
confirming

a

company’s

The absence of

implementation

of

personnel policy changes may be “sufficient to raise a genuine
factual dispute as to whether the asserted reason was pretextual”
and may provide circumstantial evidence that the policy change did
not in fact exist.

McGinest v. GTE Serv. Corp., 360 F.3d 1103,

1123 (9th Cir. 2001) (cited with approval in Rivera Rodriguez v.
Sears Roebuck de P.R., Inc., 432 F.3d 379, 382 (1st Cir. 2005)).

Civil No. 13-1205 (FAB)

24

The Court finds this to be the case here.
the

nature

accordingly,

of

multiple

the

Executive

credibility

of

FGR’s defense hinges on

Committee

the

four

decisions,

Executive

members purporting to have made those decisions.

and,

Committee

The absence of

any documentation to confirm the policy decisions suggests the
weakness of FGR’s proffered reasons, such that the Court finds
sufficient circumstantial evidence to raise a genuine factual issue
as to whether FGR’s asserted non-discriminatory reasons for Taboas’
dismissal were pretextual.
d.

Disparate Treatment of Younger Employees
While the aforementioned aspects of the record

support a conclusion that FGR’s proffered reasons for Taboas’s
termination were pretextual, Taboas still must adduce evidence from
which a jury could reasonably find that FGR’s true motivation for
terminating her was age discrimination.

See Velez v. Thermo King

de P.R., Inc., 585 F.3d 441, 450 (1st Cir. 2009).

“An employer’s

disparate treatment of employees in response to behavior that
legitimately

offends

the

discriminatory animus.”

employer

can

provide

evidence

of

Thermo King, 585 F.3d at 451 (citing

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 (1976)).
In order to indicate discriminatory animus, however, a claim of
disparate treatment “must rest on proof that the proposed analogue
is similarly situated in material respects.”

Perkins v. Brigham &

Women’s Hosp., 78 F.3d 747, 752 (1st Cir. 1996).

Civil No. 13-1205 (FAB)

25

In response to Taboas’ protestations regarding
her

below-rate

assignments,

FGR

attorneys

claimed

that

her

assignments were limited because (1) Shareholders were loathe to
assign work to her, and (2) Members were responsible for generating
a significant share of their own work. In 2005, Antonetti wrote to
Taboas, “it is not expected of someone of your category, experience
and compensation to depend on all of your work being assigned by
others, but rather, on the contrary, you be a source of your own
work.” (Docket No. 51-8 at p. 1). FGR’s promotion guidelines note
that Members “should have consistently demonstrated a concern for
significantly developing new areas of service or obtaining new
clients for the Law Firm; and in fact have brought in client (sic)
to the Law Firm.” (Docket No. 51-5 at p. 3; see also Docket No. 634 at p. 78.
In light of FGR’s contentions regarding Members
generating their own work, Taboas points to record evidence that
she did so to a greater extent than similarly situated attorneys
working in the same position and division as she.

When Antonetti

was asked in his deposition about production reports that FGR
relied on in assessing Taboas’ productivity, he conceded that she
was, in 2008, the Member with the most money billed in files to her
name.

(Docket No. 63-4 at p. 74.)

Similarly, in 2008 and 2009,

Taboas billed much higher amounts in her own files than Maria
Montalvo,

Tomas

Roman,

and

Roberto

Camara,

Members

in

the

Civil No. 13-1205 (FAB)

26

litigation division who were much younger than she.

These Members

were not sanctioned for their low quantity of self-billed files,
but rather were promoted to Shareholders in December of 2010.
(Docket No. 63-39.)

In 2010, Taboas’ billing amounts in her own

files were less than those of Maria Montalvo, but significantly
higher than Roberto Camara and Tomas Roman.

Id.

On this record, Taboas argues that FGR engaged
in disparate treatment by purporting to require her to generate
more of her own work, and firing her when she failed to do so,
while neglecting to require the same from similarly situated,
younger employees.

The Court agrees that these facts permit an

inference of disparate, age-based treatment.

This inference of

disparate treatment, when considered alongside plaintiff Taboas’
prima facie case, see Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 147-8 (2000), and the fact that Taboas was overbudget at the time of her dismissal, creates a genuine factual
issue that FGR’s true reason for firing Taboas was her age.
Resolution

of

these

factual

disputes

depends

on

numerous

credibility determinations not properly considered at the summary
judgment stage.
DENIED.

Accordingly, FGR’s motion for summary judgment is

Civil No. 13-1205 (FAB)
C.

27

Plaintiff Taboas’ Puerto Rico Law Claims
1.

Law 100 Claim
FGR moves for summary judgment of plaintiff Taboas’

Law

100

claim.

Law

100,

Puerto

Rico’s

general

employment

discrimination statute, prohibits employment discrimination on the
basis of age.

Puerto Rico Laws Ann. tit. 29 § 146.

Pursuant to

Law 100, a presumption of discrimination is triggered where a
plaintiff establishes that her dismissal was not justified.

Ramos

v. Davis & Geck, Inc., 167 F.3d 727, 734 (1st Cir. 1999).

In

contrast to the presumption employed in ADEA analysis, once the Law
100 presumption has been triggered, an employer has both the burden
of production and the burden of persuasion.

Ibañez-Benitez v.

Molinos de P.R., Inc., 14 P.R. Offic. Trans. 58 (1983); see also
Alvarez Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17,
27-8 (1st Cir. 1998).

Thus, in order to defeat the presumption, an

employer must prove, by a preponderance of the evidence, that the
dismissal was not discriminatory.
Trans.

Ibañez-Benitez, 14 P.R. Offic.

If an employer successfully rebuts the presumption, an

employee has the burden of proving the existence of discrimination.
Id.
The same evidence that supports plaintiff Taboas’
prima facie ADEA case also triggers the Law 100 presumption. While
FGR proffered legitimate, non-discriminatory reasons for Taboas’s
termination, whether FGR can prove those reasons to be true by a

Civil No. 13-1205 (FAB)
preponderance

of

determinations.
Court

the

28
evidence

involves

multiple

credibility

The genuine disputes of material fact that the

identified

above

with

regard

to

FGR’s

proffered

justifications and Taboas’s allegations of discriminatory animus
are also relevant to her Law 100 claim.

Accordingly, the Court

DENIES FGR’s motion for summary judgment of plaintiff Taboas’
Law 100 claim.
2

Plaintiff Taboas’Law 80 Claim
FGR and Taboas both move for summary judgment of her

Law 80 claim.

Law 80 provides, in relevant part,

Every employee in commerce, industry, or any
other business or work place, . . . who is
discharged from his/her employment without
just cause, shall be entitled to receive from
his/her employer, in addition to the salary
he/she may have earned:
(a) the salary corresponding to six (6) months
. . . ;
(b) an additional progressive compensation
equal to three (3) weeks for each year of
service. . . .
P.R. Laws Ann. tit. 29 § 185a (emphasis added).

The initial burden

for a Law 80 claim is on a plaintiff to establish that he or she
was dismissed and that his or her dismissal was unjustified. Hoyos
v. Telecorp Commc’n., Inc., 488 F.3d 1, 6 (1st Cir. 2007) (internal
citation omitted).

Once that showing has been made, the burden

shifts to the employer to establish that the discharge was for good
cause.

Id.

Civil No. 13-1205 (FAB)

29

FGR concedes that Taboas was dismissed. Taboas, by
alleging that she was unjustly terminated, has met her initial
burden.

The Court’s inquiry is thus whether FGR has established

that no genuine issues of material fact exist to suggest that
Taboas’ termination was unjustified. FGR contends that it had just
cause for dismissing Taboas due to her failure to meet FGR’s
production goals for Members.

(Docket No. 51-1 at p. 22.)

the Court

a

found

above

that

genuine factual

Because

dispute

exists

regarding FGR’s discriminatory animus, however, the sufficiency of
FGR’s just cause becomes a question of credibility.

See Yamayo v.

Banco Santander P.R., 552 F. Supp. 2d 172, 180 (D.P.R. 2007)
(Besosa, J.). Accordingly, defendant’s motion for summary judgment
of plaintiff Taboas’ Law 80 claim is DENIED.
Plaintiff

Taboas’

primary

argument in

favor of

summary judgment of her Law 80 claim is that in order for FGR to
have just cause to fire her for failure to comply with its
productivity goals, those goals must have been in writing pursuant
to Law 80’s section 185b(c).

(Docket No. 54.)4

Subsection (c),

however, does not provide FGR’s only path for offering just cause.
Subsection (b), for example, states that just cause exists where
“[t]he attitude of the employee of not performing his work in an

4

Plaintiff Taboas supports this argument with untranslated
Puerto Rico court cases on which the Court cannot rely in reaching
its ruling. See Puerto Ricans for P.R. Party v. Dalmau, 544 F.3d
58, 67 (1st Cir. 2008).

Civil No. 13-1205 (FAB)

30

efficient manner, or of doing it belatedly and negligently or in
violation of the standards of quality of the product produced or
handled by the establishment.”

Puerto Rico Laws Ann. tit. 29

§ 185b(b). Additionally, Law 80 “does not intend to be, nor should
it be, a code of conduct containing a list of clearly defined
offenses

with

their

corresponding

penalties

for

each

case.”

Delgado Zayas v. Hosp. Interamericano de Medicina Avanzada, 1994
P.R. - Eng. 908 (1994).

Thus, if FGR establishes that it informed

Taboas of its productivity requirements, that Taboas was aware of
the potential repercussions for failing to meet those requirements,
and that FGR ultimately dismissed Taboas for failure to meet the
requirements, FGR can rebut the presumption that Taboas’s dismissal
was capricious or abusive.
Here, Taboas concedes that she was aware of FGR’s
hours-based productivity goals.

(Docket No. 63-7 at pp. 26-27.)

Issues of fact remain, however, regarding whether Taboas knew that
she was being sanctioned in 2005 for underproductivity.

The

parties dispute whether the previously mentioned communications
from

Antonetti

and

Vizcarrondo

evidence

sanctions

for

underproductivity, or can reasonably be interpreted as incentives
for future productivity. Additionally, a factual dispute exists as
to whether FGR’s production goals were reasonable — as required by
Section 185b(c) — in light of the work and rates assigned to
Taboas. As explained above, Taboas notified Antonetti that she had

Civil No. 13-1205 (FAB)

31

been assigned work at almost half her hourly billing rate, and that
at that rate she would need to bill 2,560 hours in order to satisfy
her production budget, an amount Antonetti conceded would be
unfair.

(Docket No. 63-25; 63-4 at p. 57.)

Additionally, Acosta

stated that Taboas repeatedly expressed that she was willing to
take on more work, and that she was diligent, competent and
professional.
factual

issues

(Docket No. 63-26 at pp. 56-57.)
remain

contested

and

hinge

Because these
on

credibility

determinations, plaintiff Taboas’ motion for summary judgment of
her Law 80 claim is also DENIED.
III. Conclusion
For the reasons articulated above, the Court DENIES defendant
FGR’s motion for summary judgment (Docket No. 51), plaintiff
Taboas’ motion for partial summary judgment (Docket No. 54), and
plaintiff Taboas’ second motion to strike (Docket No. 76.)

The

Court GRANTS IN PART AND DENIES IN PART plaintiff Taboas’ first
motion to strike (Docket No. 60.)
IT IS SO ORDERED.
San Juan, Puerto Rico, August 20, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
United States District Judge