Matias-Morales v. Construction Corp.
Filing
53
AMENDED OPINION AND ORDER granting in part and denying in part 21 motion for summary judgment. Signed by US Magistrate Judge Marcos E. Lopez on 4/30/2015. (MT)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
PABLO L. MATÍAS MORALES,
Plaintiff,
v.
CIVIL NO.: 13-1904 (MEL)
VENEGAS CONSTRUCTION CORP.,
Defendant.
AMENDED OPINION AND ORDER
I.
PROCEDURAL HISTORY
On December 11, 2013 Pablo L. Matías Morales (“plaintiff”) filed a complaint against
Venegas Construction Corporation (“defendant”), alleging age discrimination in violation of the
Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (the “ADEA”), P.R. Laws
Ann. tit. 29, § 146 (“Law 100”), and Article 1802 of the Puerto Rico Civil Code, P.R. Laws
Ann. tit. 31, § 5141 (“Article 1802”) and unlawful discharge in violation of P.R. Laws Ann. tit.
29, § 185(a) (“Law 80”). ECF No. 1. Pending before the court is defendant’s motion for
summary judgment and plaintiff’s response in opposition. ECF Nos. 21; 22. For the reasons that
follow defendant’s motion for summary judgment is granted in part and denied in part.
II.
SUMMARY OF UNCONTESTED FACTS1
Plaintiff began working for defendant in August of 1965, when he was hired as a Heavy
Equipment Operator.2 ECF No. 21-1, ¶ 4; 22-1, at 1, ¶ 4. Over the course of his employment
1
Defendant did not submit a response to plaintiff’s proposed uncontested facts (ECF No. 22-1, at 7-14). Thus, in
accordance with Local Rule 56(e), plaintiff’s proposed facts that are supported by specific citations to the summary
judgment record have been deemed admitted due to defendant’s failure to controvert them. D.P.R. Civ. R. 56(e).
2
Although it is uncontested that plaintiff began working for defendant in August 1965, defendant adds that plaintiff
also worked for Sanson Corp., on one or more occasions at some point(s) in time between 1965 and the year in
which plaintiff alleges that defendant terminated his employment—that is, 2012. ECF No. 21-1, ¶ 4. It is
with defendant plaintiff operated numerous types of heavy equipment machines and vehicles.
ECF No. 22-1, at 7, ¶ 1. Generally, when one piece of heavy equipment broke down the
vehicle’s operator could be transferred to operate another machine, if work were available. Id.
In June or July 2012, plaintiff was assigned to work on a construction project that
involved demolishing a hotel at Cayo Largo, in Fajardo, Puerto Rico. ECF Nos. 1, ¶ 9; 5, ¶ 9;
22-1, at 7, ¶ 2. In this role plaintiff worked under the supervision of Eng. Luis Feliciano Medina
(“Feliciano”). ECF Nos. 21-1, ¶ 7; 22-1, at 2, ¶ 7. Defendant was the subcontractor for the Cayo
Largo project and was required by the contractor, a demolition company known as R4
Company, to supply the heavy machinery and employees to accomplish the project. ECF Nos.
21-1. ¶ 5-6; 22-1, at 1-2 ¶ 5-6. All of the equipment at the Cayo Largo worksite “suffered
problems” and required maintenance. ECF Nos. 22-1, at 9, ¶ 5. Plaintiff was routinely assigned
to the Caterpillar model 235 excavator machine (the “CAT 235”) to perform demolition; the
CAT 235 was known as “the Matías machine.” ECF Nos. 21-1. ¶ 5-6; 22-1, at 1-2, ¶ 5-6. Id.
In early September 2012, while plaintiff was performing demolition work with the CAT
235 excavator for the Cayo Largo project, the excavator broke down when a rod got caught
underneath the excavator and damaged the excavator’s “starter” and “temperature cable.” Id.
¶ 3; ECF No. 25-1, at 10: 10-15. After a new starter was purchased and installed, plaintiff was
ordered to continue performing demolition with the CAT 235. ECF No. 22-1, ¶ 5. On
September 17, 2012, the radiator in the CAT 235 clogged and the excavator overheated,
requiring repairs. Id.
defendant’s position that plaintiff has worked for it “continuously” since 2000, which it supports with a statement
plaintiff made during his deposition to that effect. ECF No. 21-4, at 8: 8-24. Plaintiff responds that he did not work
for Sanson Corp., but rather “worked sporadically with Sanson Corp. as instructed by his employer Venegas
Construction Corp. who would deliver him . . . to the Sanson facility.” ECF No. 22-1, at 1, ¶ 4. In his deposition,
plaintiff indicated that he was doubtful that Sanson Corp. paid his salary, because “they never told [him] that [he]
worked directly . . . [w]ith Sanson.” ECF No. 25-1, at 2: 4-9; 4: 25-28. Ultimately, whether plaintiff worked with or
for Sanson Corp. at any time between 1965 and 2012 has no bearing on the disposition of the pending motion for
summary judgment.
2
On September 19, 2012, the date of plaintiff’s 73rd birthday, plaintiff was assigned to
operate another excavator with a hammer installed on its arm in order to demolish a beam that
was approximately 40 to 50 feet high. ECF Nos. 1, ¶ 14; 5, ¶ 14; 21-1, ¶ 11; 22-1, at 4 ¶ 11, at
10 ¶ 6. Plaintiff wanted to demolish one of the sides before pushing the beam to fall over, and
he told Feliciano that hitting the beam in its center could cause the beam to fall on plaintiff and /
or to break the hammer. ECF No. 22-1, at 10 ¶ 6. Feliciano ordered plaintiff to hit the center and
plaintiff obeyed him. Id. While plaintiff was demolishing the beam, the hammer strut of the
excavator broke. ECF Nos. 21-1, ¶ 9; 22-1, at 3 ¶ 9. Feliciano became aggravated and instructed
plaintiff to leave the Cayo Largo worksite “in the convoy.” ECF Nos. 21-1, ¶ 9; 22-1, at 3, ¶ 9,
at 10 ¶ 7. Plaintiff left the worksite. ECF No. 22-1, at 10, ¶ 7.
At the time of plaintiff’s departure from the Cayo Largo worksite there were three other
excavators and a CAT roller at the site. ECF Nos. 1, ¶ 18; 5, ¶ 18. After the September 19, 2012
incident, plaintiff visited defendant’s President, Emilio Venegas, who informed plaintiff that it
would take about two weeks to have the machine repaired and advised plaintiff to collect
unemployment benefits for those two weeks. ECF No. 22-1, ¶ 14. On September 22, 2012,
Feliciano called plaintiff to offer him work at the Cayo Largo worksite, which plaintiff
accepted, returning to the Cayo Largo worksite on September 24, 2012.3 ECF No. 21-1, ¶ 12;
22-1, ¶ 12. On September 25, 2012, “a pin of the bucket of the excavator” that plaintiff was
operating broke and plaintiff had to leave the Cayo Largo worksite once again. ECF No. 21-1,
¶ 13; 22-1, at 4 ¶ 13, 13 ¶ 12. On March 22, 2013, Emilio Venegas sent plaintiff a letter
3
Defendant argues that the fact that Feliciano called plaintiff back to work at the Cayo Largo worksite on
September 22, 2012 defeats plaintiff’s theory that he was discharged from his employment with defendant on
September 19, 2012. ECF No. 21-2, at 7. Plaintiff responds that after September 19, 2012 he was employed directly
by the general contractor for the Cayo Largo project, R4 Company. ECF Nos. 21-4, at 47. Plaintiff testified in his
deposition that R4 Company paid him cash for his work after the September 19, 2012 incident. ECF Nos.: 6-12;
22-1, ¶ 12. Plaintiff also cites to a portion of Feliciano’s deposition, in which Feliciano indicated that “the general
contractor” gave him instructions to call plaintiff. ECF Nos. 21-5, at 18: 13-19; 22-1, ¶ 12.
3
requesting that he report to work at the Rafael Hernández Colón Library project on March 25,
2013. ECF Nos. 22-1, ¶ 9. Plaintiff did not report to work at the Rafael Hernández Colón
Library project. ECF Nos. 21-1, ¶ 18; 22-1, at 6, ¶ 18. Plaintiff did not work between the
September 25, 2012 incident and defendant’s March 2013 request for him to report to the Rafael
Hernández Colón Library project. ECF No. 21-1, ¶ 20; 22-1, ¶ 20.4 Defendant performed work
at the Cayo Largo worksite until June 2013. ECF No. 22-1, at 10 ¶ 12.
III.
LEGAL STANDARD
The purpose of summary judgment “is to pierce the boilerplate of the pleadings and
assay the parties’ proof in order to determine whether trial is actually required.” Wynne v. Tufts
Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992). Summary judgment is granted when the
record 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 dispute is genuine if the evidence
about the fact is such that a reasonable jury could resolve the point in the favor of the nonmoving party. A fact is material if it has the potential of determining the outcome of the
litigation.’” Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting
Rodríguez-Rivera v. Federico Trilla Reg’l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)).
The party moving for summary judgment bears the burden of showing the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant presents a properly focused motion “averring ‘an absence of evidence to support the
nonmoving party’s case[,]’ [t]he burden then shifts to the nonmovant to establish the existence
of at least one fact issue which is both ‘genuine’ and ‘material.’” Griggs-Ryan v. Smith, 904
F.2d 112, 115 (1st Cir. 1990) (quoting Garside v. Osco Drug., Inc., 895 F.2d 46, 48 (1st Cir.
4
Plaintiff asserts that he regularly visited defendant looking for work after the incident (ECF No. 22-1, ¶ 20) and
defendant claims that there was no other project at that time involving the use of excavators (ECF 21-1, ¶ 20).
4
1990)). For issues where the nonmoving party bears the ultimate burden of proof, that party
cannot merely “rely on the absence of competent evidence, but must affirmatively point to
specific facts” in the record “that demonstrate the existence of an authentic dispute.” McCarthy
v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). The plaintiff need not, however, “rely on
uncontradicted evidence . . . . So long as the plaintiff’s evidence is both cognizable and
sufficiently strong to support a verdict in her favor, the factfinder must be allowed to determine
which version of the facts is most compelling.” Calero-Cerezo v. U.S. Dep’t of Justice, 355
F.3d 6, 19 (1st Cir. 2004) (emphasis in original).
In assessing a motion for summary judgment, the court “must view the entire record in
the light most hospitable to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Griggs-Ryan, 904 F.2d at 115 (citations omitted). There is “no
room for credibility determinations, no room for the measured weighing of conflicting evidence
such as the trial process entails, [and] no room for the judge to superimpose his own ideas of
probability and likelihood . . . .” Greenburg v. P. R. Mar. Shipping Auth., 835 F.2d 932, 936
(1st Cir. 1987). The court may, however, safely ignore “conclusory allegations, improbable
inferences, and unsupported speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990) (citations omitted).
IV.
ANALYSIS
A. The ADEA
The Age Discrimination in Employment Act (the “ADEA”) makes it unlawful for an
employer “to discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1) (2000). In an ADEA discrimination case, the plaintiff
5
bears the burden of proving “that age was ‘the reason’ that the employer decided to act.” Gross
v. FBL Financial Services, Inc., 557 U.S. 167, 168 (2009) (citing Hazen Paper Co. v. Biggins,
507 U.S. 604, 610 (1993)). The ADEA does not authorize a plaintiff to bring mixed-motive age
discrimination cases in which age is only a “motivating factor” in the employer’s decision; it
requires a plaintiff “to prove by a preponderance of the evidence (which may be direct or
circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.”5 Id. at
177-78 (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141-44 (2000)).
“Direct evidence is evidence which, in and of itself, shows discriminatory animus.” Jackson v.
Harvard University, 900 F.2d 464, 467 (1st Cir. 1990); Mandavilli v. Maldonado, 38 F.Supp.2d
180, 192 (D.P.R. 1999). When a plaintiff provides direct evidence that the employer
discriminated on the basis of age, “the issue may be put to a finder of fact without further ado.”6
Álvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 F.3d 17, 24 (1st Cir. 1998).
5
Defendant cites Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), which involves the standard for a hostile
work environment or harassment claim under the ADEA, for the proposition that “[a] simple act of harassment is
insufficient for legal action.” ECF No. 21-2, at 8 (emphasis omitted). Defendant also includes citations to numerous
other hostile work environment cases throughout its memorandum. See ECF No. 21-2, at 8-13. Plaintiff responds
that he has not brought a hostile work environment claim in this case, stating “[d]efendant’s barrage of hostile work
environment case law deserves no attention as there is no harassment claim in the present case.” ECF No. 22, at 2
n.2. Indeed, a review of the complaint reveals that plaintiff has not alleged that he experienced harassment or a
hostile work environment. ECF No. 1. His cause of action for age discrimination is limited to a claim that he
suffered a discrete instance of disparate treatment—that his employment with defendant was terminated in
September 2012. Id. at 7-8.
6
When a plaintiff lacks direct evidence showing discriminatory animus, “[h]e must . . . rely on the burden-shifting
framework characteristic of cases involving circumstantial proof of discrimination.” Medina-Muñoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5, 6 (1st Cir. 1990) (citations omitted); Shorette v. Rite Aid of Maine, Inc., 155
F.3d 8, 12 (1st Cir. 1998) (“Absent direct evidence of discriminatory intent, an ADEA plaintiff may present
circumstantial evidence pursuant to the familiar three-stage, burden shifting paradigm.”) (citation omitted). Under
the McDonnell-Douglas burden-shifting framework, a plaintiff must establish that (1) he or she is within the
ADEA’s protected age ground--over forty years of age; (2) his or her job performance met the employer’s
legitimate performance expectations; (3) he or she suffered an adverse employment action; and (4) defendant “did
not treat age neutrally or retained younger persons in the same position.” See Pages-Cahue v. Iberia Lineas Aereas
de España, 82 F.3d 533, 536 (1st Cir. 1996) (citing Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1995));
Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir. 1993)). The prima facie case shifts the burden of
production to the employer, who must then articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1993). Plaintiff then has the
opportunity to show that the employer’s reason is a pretext for discrimination, allowing the factfinder to infer
“discriminatory animus.” See Vélez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 448 (1st Cir. 2009);
González v. El Día, Inc., 304 F.3d 63, 69 (1st Cir. 2002).
6
Then, in order to defeat the claim, the employer “must . . . either deny the validity or the
sufficiency of the plaintiff’s evidence, and [have] the jury . . . decide[] whether the plaintiff has
proved discrimination by a preponderance of the evidence, or prove that it would have made the
same decision even if it had not taken the protected characteristic into account, or both, if it
chooses.” Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 429 (1st Cir. 2000) (citations
and internal quotation marks omitted).
Plaintiff’s theory in this case is that he was terminated on September 19, 2012, when
Feliciano sent him home from the Cayo Lago worksite and that defendant did not reemploy him
until defendant requested that he report to work at the Rafael Hernández Colón Library project
March 22, 2013. ECF Nos. 1, at 7-8; 22-1, at 4, ¶ 12. In support of this claim plaintiff has
adduced direct evidence that defendant discriminated against him with respect to the terms and
conditions of his employment on the basis on his age on September 19, 2012. In his deposition,
plaintiff explained that when the hammer strut of the excavator that he was operating on
September 19, 2012 broke, Feliciano said to him: “Get out of there, ‘cause you’re too old and
you’re no use anymore,” “Go off and live on Social Security,” “Here comes, here comes the
convoy . . . and you’re going in the convoy . . . [because] I don’t want you here anymore.” ECF
No. 21-4, at 46: 25-27; 47: 1-7. In his deposition plaintiff also recalled that he said to Feliciano
“but I’ve used a hammer before,” to which Feliciano replied: “No, no, no, I don’t want you
here, you’re too old, you don’t know how to work anymore and you’re out of here now.” Id. at
47: 18-21. While “stray workplace remarks” are normally insufficient to establish the requisite
discriminatory animus (see, e.g., Gonzales v. El Día, Inc., 304 F.3d 63, 69 (1st Cir. 2002)),
Feliciano’s comments regarding plaintiff’s age were not made in passing or out of context, but
at the time of the purported adverse employment action. Furthermore, the comments directly
7
relate to the decision to send him home on September 19, 2012 and not only refer to plaintiff’s
age, but reflect that his age was the reason Feliciano sent him home from the Cayo Largo
worksite that day.
It is defendant’s position that it “never fired plaintiff” and that the fact that Feliciano
called plaintiff on September 22, 2012 requesting that he report to work at the Cayo Largo
worksite on September 25, 2012 “defeats [p]laintiff’s theory that he was discharged” on
September 19, 2012.7 See ECF Nos. 21-1, ¶ 16; 21-2, at 7. While this argument initially appears
compelling, plaintiff counters that the general contractor, R4 Company, instructed Feliciano to
call him on September 22, 2012 and that plaintiff returned to the Cayo Largo worksite to work
directly for the contractor, R4 Company, which is owned by Melvin González—not to work for
defendant, the subcontractor. ECF Nos. 22, at 6; 22-1, ¶ 12. Plaintiff cites to his deposition,
which states:
Q: Uh, Don Pablo, when you worked again in the, in the Cayo
Largo project after, after the incident with Mr. Feliciano, did you
work with Venegas again that week that you worked, or were you
working for that company of Melvin’s?
A: Melvin’s.
Q: In order words, the one that paid you was Melvin’s Company?
A: Melvin paid me ‘cash.’
ECF No. 21-4, at 47: 6-12. Taking plaintiff’s assertion that after September 19, 2012 he worked
directly for R4 Company at the Cayo Largo worksite as true, a reasonable jury could find that
7
Suspensions, like terminations, are actionable under the ADEA. See, e.g., Reyes Díaz v. Cojimar, LLC, Civ. No.
12-1711(GAG), 2014 WL 916643, at *6 (D.P.R. March 10, 2014) (noting that suspension constitutes an adverse
employment action for ADEA purposes). Plaintiff has brought a letter to the court’s attention dated February 25,
2013, from Emilio Venegas to counsel Alfredo Acevedo Cruz, which states: “[T]he case of fellow Pablo Martinez
Matias, we have never referred to it as a termination, because it is a temporary suspension.” ECF No. 25-3, at 1.In
the complaint, however, plaintiff does not allege that he was suspended in either the “facts common to all causes of
action” section or in his causes of action pursuant to the ADEA or Law 100, averring throughout those sections that
defendant terminated him. See ECF No. 1, at 2-9.
8
plaintiff’s experienced an adverse employment action when he was sent home from work on
September 19, 2012, despite the fact that it was Feliciano who called plaintiff on September 22,
2012 to ask him to return to Cayo Largo.
Defendant also posits: that Feliciano’s statements “were directed to admonish [plaintiff]
and [to] warn him due to his reckless use of heavy equipment;” that Feliciano “was upset for
legitimate reasons;” that Feliciano did not make any comment to plaintiff “on account of or
based on his age;” and that the reason for any adverse employment action plaintiff experienced
was that plaintiff exhibited “extreme negligence” on three occasions between September 17,
2012 and September 25, 2012. ECF No. 21-2, at 7. Whether Feliciano actually made the
statements listed above regarding plaintiff’s age, whether Feliciano’s comments were merely
meant as an admonishment and warning, and whether Feliciano “was upset for legitimate
reasons” are matters for the jury to decide. Defendant notes that plaintiff was subject to a prior
warning related to the use of its equipment, citing to a memorandum dated September 12, 2011
and signed on September 15, 2011. ECF Nos. 21-1, at ¶ 15; 21-9. The memorandum is
addressed to plaintiff, from Project Manager Heriberto Maya, and states:
After having fully reviewed the causes of the rupture of the pipe
. . . we find that there was negligence on your part in the
performance of your work. It is apparent from the individuals
interviewed, including experienced operators and yourself, that
there was no way that a responsible operator would not notice the
major blow to the pipe.
ECF No. 21-9, at 1. The memorandum also warns plaintiff that “a similar situation must not
happen again.” Id. (emphasis in original). The fact the plaintiff received a warning regarding his
use of defendant’s equipment in 2011, however, does not establish that he was negligent in
operating heavy equipment on September 17, 2012, September 19, 2012, or September 25,
2012, let alone that defendant altered the terms of plaintiff’s employment due to his negligence
9
on those occasions. While the record does reflect that plaintiff experienced problems with the
equipment he was operating on September 17, 2012, September 19, 2012, and September 25,
2012, viewing the record in the light most favorable to plaintiff a reasonable jury could find that
these problems were not the fault of plaintiff as the equipment operator. It is uncontested that all
of the equipment at the Cayo Largo worksite experienced problems and required maintenance.
Moreover, with respect to the September 17, 2012 breakdown of the CAT 235 plaintiff has cited
to evidence that indicates Feliciano was aware of ongoing problems with the machine, but
directed plaintiff to continue with the project, stating “[n]o, no, we can’t stop the machine.”
ECF No. 25-1, at 7: 20-27. Similarly, with regard to the September 19, 2012 incident the
summary judgment record contains evidence that the resultant equipment failure was the result
of plaintiff’s adherence to Feliciano’s direction as his supervisor. Plaintiff stated in his
deposition that he warned Feliciano that hitting the beam in its center could cause the hammer
to break, that Feliciano ordered plaintiff to hit the center, and that plaintiff obeyed him. ECF
No. 22-1, at 10, ¶ 6. As to the incident on September 25, 2012, in light of the fact that it
occurred after Feliciano sent plaintiff home on September 19, 2012, whether or not plaintiff was
negligent that day has no bearing on whether he was in fact discharged on September 19, 2012.
While defendant may argue to the jury that any adverse employment action plaintiff
experienced was the result of his “negligent” job performance, such an argument is insufficient
to warrant summary judgment in its favor in light of plaintiff’s direct evidence of age
discrimination.
Next, defendant points out: that it has other employees who are over 60 years of age;
that subsequent to the September 19, 2012 incident Feliciano did not make reference to
plaintiff’s age and treated plaintiff in a “good and respectable manner”; and that plaintiff and
10
Feliciano were “good friends.” ECF No. 21-2, at 6-7. Accepting these assertions as true,
however, would not preclude a reasonable jury from finding in favor of plaintiff with regard to
his age discrimination claim. “The ultimate question on summary judgment in this ADEA case
is ‘whether or not the plaintiff has adduced minimally sufficient evidence to permit a reasonable
factfinder to conclude that he [experienced an adverse employment action] because of his age.’”
Vélez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 452 (1st Cir. 2009) (citing Dávila v.
Corporación de P.R. Para La Difusión Pública, 498 F.3d 9, 16 (1st Cir. 2007)). The evidence to
which plaintiff has brought to the court’s attention with specific citations to the record satisfies
this standard. Therefore, defendant’s motion for summary judgment must be denied as to
plaintiff’s ADEA cause of action.
B. Law 100
Law 100, Puerto Rico’s general employment discrimination statute, prohibits
discrimination in employment by reason of “age, race, color, sex, social or national origin or
social condition, political affiliation, political or religious ideology, or for being a victim or
perceived as a victim of domestic violence, sexual aggression or stalking.” P.R. Laws Ann. tit.
29, § 146. “The analysis under the ADEA and Law 100 is practically the same;” however, Law
100 requires a plaintiff to prove that age was a motivating factor in the challenged employment
decision, not a “but-for” cause. Palacios v. First Bank Puerto Rico, CIV. 11-1420 GAG, 2012
WL 3837443, at *9 (D.P.R. Sept. 4, 2012) (citing Mojica v. El Conquistador Resort and Golden
Door Spa, 714 F.Supp.2d 241, 262 (D.P.R. 2010)); see also Dávila v. Corp. De Puerto Rico
Para Law Difusion Pública, 498 F.3d 9, 18 (1st Cir. 2007) and Ramos et al. v. Davis & Geck,
Inc., 167 F.3d 727, 734 (D.P.R. 1999). Additionally, “[u]nder the ADEA, the burden of proof is
at all times on the plaintiff,” while under Law 100 “once the employee triggers [its] protections
11
. . . the burdens of both production and persuasion shift to the employer.”8 Ramos, 167 F.3d at
734 (citing Wildman v. Lerner Stores Corp., 771 F.2d 605, 609 (1st Cir. 1985)).
To the extent that the burdens of proof under the statutes differ, “Law 100 offers a
‘significantly more favorable’ standard to plaintiffs than does the ADEA.” Baralt v. Nationwide
Mut. Ins. Co., 251 F.3d 10, 16 (1st Cir. 2001) (citing Cardona Jiménez v. Bancomercio de
Puerto Rico, 174 F.3d 36, 42 (1st Cir. 1999)). In light of the more plaintiff-friendly burden of
proof under Law 100, plaintiffs’ evidence of age discrimination discussed in reference to his
ADEA claim is also sufficient to create a jury issue as to whether age was a motivating factor in
defendant’s decision to terminate him, in violation of Law 100. Thus, defendant’s motion for
summary judgment is denied as to plaintiff’s Law 100 cause of action.
C. Article 1802
Article 1802 provides that a person who “causes damages to another through fault or
negligence” shall be liable in damages. P.R. Laws Ann. tit. 31, § 5141. A plaintiff may not bring
claims under Articles 1802 and 1803 based on the same allegations which underlie an age
discrimination claim pursuant to Law 100. Zayas-Ortiz v. Becton Dickinson Caribe, Ltd., 878
F.Supp.2d 351, 356 (D.P.R. 2012) (dismissing Article 1802 claims based on the same facts that
gave rise to Law 100 claims); Medina v. Adecco, 561 F.Supp.2d 162, 176 (D.P.R. 2008)
(same). A review of the complaint does not reveal allegations of any tortious conduct that are
distinct and independent from those which are related to plaintiff’s age discrimination claim.
See ECF No. 1. In short, the allegations set forth in the amended complaint for which the
8
“To trigger the presumption under Law 100 that the employer engaged in discriminatory conduct, the employer
must show: (1) that she suffered an adverse employment action; (2) that there was no just cause for the adverse
employment action; and (3) some basic fact substantiating the type of discrimination alleged.” Hernández v.
Westernbank Puerto Rico Inc., Civ. No. 10-1573 (JAG), 2011 WL 3651819, at *5 (D.P.R. 2011) (citing ColónMuriel v. ASC, 499 F.Supp.2d 98 (D.P.R. 2007)).
12
plaintiff seeks damages are covered by special labor legislation. Thus, plaintiff’s Article 1802
claim is dismissed with prejudice.
D. Law 80
“Puerto Rico Law 80 provides the exclusive remedy under Puerto Rico law for an
employee who is discharged without demonstrating just cause.” Santiago-Ramos v. Centennial
P.R. Wireless Corp., 217 F.3d 46, 58 (1st Cir. 2000) (citing P.R. Laws Ann. tit. 29 §§ 185a185m). Law 80 defines a “discharge” as, “in addition to the employee's layoff, his suspension
indefinitely or for a term over three (3) months . . . .” P.R. Laws Ann. tit. 29, § 185e. The
employee first must prove “that he was directly or constructively discharged,” which then
“shifts the burden of proof to the employer to show that the discharge was justified.” ÁlvarezFonseca, 152 F.3d at 28 (citing P.R. Laws Ann. tit., § 185k). “Assuming that the employer
provides evidence of ‘just cause,’” Law 80 contains an additional requirement “that employers
‘retain employees with greater seniority when layoffs become necessary for business of
economic reasons.’” Arroyo-Pérez v. Demir Group Int’l, 762 F.Supp.2d 374, 382 (D.P.R. 2011)
(citing Rodríguez v. E. Air Lines, Inc., 816 F.2d 24, 26 (1st Cir. 1987)). Such seniority is
evaluated “within an employee’s ‘occupational classification.’” Id. (citing P.R. Laws Ann. tit.
29, § 185c).
Defendant makes two arguments that the court should grant summary judgment with
regard to plaintiff’s Law 80 claim: (1) that plaintiff was never discharged for purposes of Law
80; and, (2) in the alternative, that defendant had just cause to discharge him based on the “three
consecutive equipment ruptures in a matter of days.” ECF No. 21-2, at 13-17. There are genuine
issues of fact, however, with regard to each of these contentions. Defendant propounds that
Emilio Venegas and plaintiff agreed that Emilio Venegas would contact plaintiff once “the CAT
13
235 was repaired and his duties as an operator of this equipment were needed,” suggesting that
this demonstrates he was not discharged per the definition under Law 80. Id. at 16. While
plaintiff concedes that Emilio Venegas told him to “take two weeks” while the CAT 235 was
being repaired, defendant has not cited to evidence with a specific citation to the summary
judgment record evincing that it in fact called plaintiff back to work after 2 weeks or at any time
in the 3 month period following September 19, 2012. The record does reflect that Emilio
Venegas sent plaintiff a letter requesting that he report to work at the Rafael Hernández Colón
Library project on March 25, 2013, which was more than 3 months after the date on which
plaintiff’s employment with defendant had ceased. Moreover, in a letter dated February 25,
2013—that is, over 5 months after September 19, 2012—Emilio Venegas explained that
plaintiff experienced a “temporary suspension” from his employment, noting:
[Plaintiff] comes by regularly around our office to know about the
‘status’ of possible works [sic], the possibility of needing his
services as operator on the diggers. We have repeatedly notified
him that as soon as we need his services, he will start work, with
the only exception that he not be available for any reason attributed
to him.
Despite that the machine that he operates (CAT 235 Digger) is not
yet in service, he may start work using another similar machine
and if it is needed for any new work. [sic]
From the moment in which [plaintiff] was temporarily suspended,
the first opportunity arose at the Hernández Colón Library Project.
Just as his communication states, we had notified him to report to
work to assign him to the project in the center of the town of
Ponce. However, unfortunately we were notified by the Executive
Director of the Hernández Colón Foundation, that they still do not
have the construction permit; therefore, the works where [plaintiff]
can participate in [sic] have been delayed for several weeks.
At the moment that [plaintiff] reports, he will enjoy all of the
benefits that he had with our Company . . .
14
ECF No. 25-3, at 1. Viewing the record in the light more favorable to plaintiff, a reasonable jury
could conclude that plaintiff was suspended for a term greater than 3 months and thus was
discharged pursuant to Law 80. As to defendant’s contention that it had just cause for any such
discharge, while it may argue to the jury that plaintiff’s purported negligence was the primary
motivation for any adverse employment action taken against him, his negligence has not been
established for summary judgment purposes, as previously discussed.9
V.
CONCLUSION
Defendant’s motion for summary judgment (ECF No. 21) is GRANTED IN PART AND
DENIED IN PART. With regard to plaintiff’s claims pursuant to the ADEA, Law 100, and Law
80, genuine issues of material fact remain, which preclude summary judgment in favor of
defendant. Plaintiff’s Article 1802 claim, however, is dismissed with prejudice, as it is based on
the same allegations which underlie his Law 100 age discrimination claim.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of April, 2015.
s/Marcos E. López
U.S. Magistrate Judge
9
Unlike with regard to his ADEA and Law 100 causes of action, with respect to Law 80 plaintiff alleges in the
complaint that defendant’s “adverse employment action against [him] constitutes a discharge without just cause,”
thus opening the door for plaintiff to argue that even if defendant did not terminate him, but rather suspended his
employment for a period over 3 months, he is entitled to relief under Law 80. ECF No. 1, ¶ 55.
15
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