Tirado-Gonzalez v. Wendco of Puerto Rico, Inc.

Filing 100

OPINION AND ORDER granting 55 MOTION for Summary Judgment. Judgment to be entered. Signed by US Magistrate Judge Camille L. Velez-Rive on 1/10/2018. (ari) Modified on 1/11/2018 edit docket entry text (ram).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOEL TIRADO GONZALEZ,
Plaintiff,
v.

CIVIL NO. 14-1316 (CVR)

WENDCO OF PUERTO RICO, INC.,
Defendant.
OPINION AND ORDER
INTRODUCTION
Plaintiff Joel Tirado Gonzalez (“Plaintiff” or “ Tirado”) filed this case against his
former employer Wendco of Puerto Rico (“Defendant” or “Wendco”) alleging
discrimination and a hostile work environment based on his disability, in violation of the
American with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et. seq., Puerto Rico Law 44,
P.R. Laws Ann. tit. 1, § 501, et seq. and retaliation in violation of the ADA and Puerto Rico
Law 115, P.R. Laws Ann. tit. 29, § 194, et seq.
Before the Court now is Defendant Wendco’s “Motion for Summary Judgment”
(Docket No. 55); Plaintiff’s Opposition thereto (Docket No. 63); Defendant’s Reply to
Plaintiff’s Opposition (Docket No. 76); and Plaintiff’s Sur-Reply (Docket No. 88).
For the reasons explained herein below, the Court GRANTS Defendant Wendco’s
Motion for Summary Judgment. Accordingly, this case is DISMISSED with prejudice.
STANDARD
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
Opinion and Order
Civil 14-1316 (CVR)
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is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56 (c). Pursuant to the language of the rule,
the moving party bears the two-fold burden of showing that there is “no genuine issue as
to any material facts,” and that he is “entitled to judgment as a matter of law.” VegaRodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997).
After the moving party has satisfied this burden, the onus shifts to the resisting
party to show that there still exists “a trial worthy issue as to some material fact.” CortésIrizarry v. Corporación Insular, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deemed
“material” if it potentially could affect the outcome of the suit. Id. Moreover, there will
only be a “genuine” or “trial worthy” issue as to such a “material fact,” “if a reasonable
fact-finder, examining the evidence and drawing all reasonable inferences helpful to the
party resisting summary judgment, could resolve the dispute in that party’s favor.” Id. At
all times during the consideration of a motion for summary judgment, the Court must
examine the entire record “in the light most flattering to the non-movant and indulge all
reasonable inferences in the party’s favor.” Maldonado-Denis v. Castillo-Rodríguez, 23
F.3d 576, 581 (1st Cir. 1994).
The First Circuit Court of Appeals has “emphasized the importance of local rules
similar to Local Rule 56 [of the District of Puerto Rico].” Hernández v. Philip Morris USA,
Inc., 486 F.3d 1, 7 (1st Cir. 2007); see also Colón v. Infotech Aerospace Servs., Inc., 869
F.Supp.2d 220, 225-226 (D.P.R. 2012). Rules such as Local Rule 56 “are designed to
function as a means of ‘focusing a district court's attention on what is -and what is notgenuinely controverted.’ ” Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 2006)). Local
Rule 56 imposes guidelines for both the movant and the party opposing summary

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judgment. A party moving for summary judgment must submit factual assertions in “a
separate, short, and concise statement of material facts, set forth in numbered
paragraphs.” Loc. Rule 56(b). A party opposing a motion for summary judgment must
“admit, deny, or qualify the facts supporting the motion for summary judgment by
reference to each numbered paragraph of the moving party’s statement of facts.” Loc. Rule
56 (c). If they so wish, they may submit a separate statement of facts which they believe
are in controversy. Facts which are properly supported “shall be deemed admitted unless
properly controverted.” Loc. Rule 56(e); P.R. Am. Ins. Co. v. Rivera-Vázquez, 603 F.3d
125, 130 (1st Cir. 2010) and Colón, 869 F.Supp.2d at 226. Due to the importance of this
function to the summary judgment process, “litigants ignore [those rules] at their peril.”
Hernández, 486 F.3d at 7.
At the outset, the Court must mention that Plaintiff’s Opposition to Defendant’s
Statement of Uncontested Material Facts was procedurally non-compliant with the Local
Rules, insofar as many of the denials do not oppose the truth of the statement offered. A
review of Plaintiff’s qualifications of Defendant’s fact statements shows that they are
either irrelevant to the matter at hand, offered additional evidence not related to the fact
in question and/or failed to contradict it, or consisted of mere “speculation, generalities,
conclusory assertions, improbable inferences, and, for lack of a better phrase, a lot of ‘hot
air.’ ” Domínguez v. Eli Lilly and Co., 958 F.Supp. 721, 728 (D.P.R. 1997).
Furthermore, while it is true that in the summary judgment context all reasonable
inferences must be drawn in favor of the non-moving party, the District Court is not
obliged to accept as true or to deem as a disputed material fact each and every
unsupported, subjective, conclusory, or imaginative statement made to the Court by a

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party. See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 6 (1st Cir. 1994) (a party
resisting summary judgment may not rest on mere allegations or denials, but must
identify and allege specific facts showing a genuine issue for trial); Velázquez-Fernández
v. NCE Foods, 476 F.3d6, 10 (1st Cir. 2007).
In the instant case, most of Defendant’s proposed material facts stand uncontested
because the evidence proffered by Plaintiff to contradict them is the self-sustaining word
of a person, Plaintiff’s mother, who is not a party to this case. It is Plaintiff who must
prove his case, not his mother. Thus, much of the evidence submitted by Plaintiff in order
to rebut the defenses offered by Defendant is not direct evidence by Plaintiff Tirado, but
by his mother. This is classic hearsay which is not covered by any of the hearsay
exceptions. As a result thereof, the Court deemed admitted most facts from Defendants’
Statement of Uncontested Material Facts.
UNCONTESTED FACTS
1. Wendco operates the Wendy’s fast-food restaurant chain in Puerto Rico and
currently has over 3,000 employees. The company’s line of business
includes the sale of prepared foods and drinks. D. Exhibit A, ¶ 4.
2. Plaintiff suffers from intellectual “discapacity” or mental retardation since
birth. P. Exhibit 3, p. 22, l. 22-25; p. 23, l. 1-17.
3. Plaintiff was employed by Wendco from November 4, 2006 to October 8,
2015, when he resigned. D. Exhibit B, pp. 20; D. Exhibit A, ¶¶ 12, 33; D.
Exhibit A-4; D. Exhibit A-9.
4. Wendco has a set of human resources policies, including a policy against
discrimination, sexual harassment, and retaliation. The policy includes a

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
Opinion and Order
Civil 14-1316 (CVR)
Page 5

procedure to report perceived discrimination, harassment and retaliation.
D. Exhibit A, ¶ 5; D. Exhibit A-1, pp. 2-8.
5. Thus, employees must contact Wendco’s Human Resources Department to
complain of any discrimination, harassment and/or retaliation. D. Exhibit
A, ¶ 6; D. Exhibit A-1, pp. 2-8.
6. Wendco’s policy against discrimination, harassment, and retaliation
prohibits among others, disability discrimination. D. Exhibit A, ¶ 7; D.
Exhibit A-1, pp. 2-8.
7. The Company’s policy against discrimination, sexual harassment, and
retaliation establishes that the employee is responsible for promptly
informing the Human Resources Director if he believes that he has been
subject to any type of discrimination, sexual harassment or retaliation. D.
Exhibit A, ¶ 8; D. Exhibit A-1, pp. 2-8.
8. A copy of the Employee Manual is provided to new employees. All
employees are responsible for reading the policies, and ensuring that the
policies are complied with. D. Exhibit A, ¶ 9.
9. During his employment with Wendco, Plaintiff received a copy of the
Employee Manual. D. Exhibit A, ¶ 9; D. Exhibit A-2; D. Exhibit C, pp. 45,
63.
10. Plaintiff’s mother, Carmen González, also received a copy of the Employee
Manual. D. Exhibit C, pp. 45, l. 5-9.
11. Plaintiff was hired by Wendco thru the Center of Training for Persons with
Disabilities (“Centro de Adiestramiento para Personas con Impedimentos”,

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
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hereinafter “CAPI”), in the restaurant located in Cidra, Puerto Rico.
Wendco’s documents list him as a Crew Member, while CAPI’s list him as a
maintenance employee. D. Exhibit A ¶ 10; D. Exhibit A-3; P. Exhibit 2.
12. CAPI is an organization that provides support and job opportunities to
people with disabilities through requests to employers from the private and
public sector. D. Exhibit A, ¶ 11; D. Exhibit C, pp. 28-29.
13. Prior to working at Wendco, Plaintiff had no prior work experience. D.
Exhibit B, p. 15; D. Exhibit C, p. 102.
14. On November 4, 2006, Plaintiff signed an employment contract which
provided for a limited working schedule of eight (8) to twenty (20) hours
per week. In his employment application, Plaintiff stated that he was
available to work any day of the week. D. Exhibit A, ¶ 12; D. Exhibit A-4; D.
Exhibit A-5.
15. From 2006 until August 20, 2011, Plaintiff reported to Angel Burgos
(“Burgos”), and from that date until June 6, 2014, he reported to Carmen
Avilés (“Avilés”), the General Manager of the Wendy’s located in Cidra. D.
Exhibit A, ¶ 14; D. Exhibit A-12; D. Exhibit A-13; D. Exhibit B, pp. 19, 20.
16. Plaintiff was required to wear a uniform provided by Wendco to perform his
functions. Tirado received these uniforms at the beginning of his
employment. D. Exhibit A-2, pp. 49-50; D. Exhibit C, pp. 92-93.
17. When Plaintiff later asked his supervisor for new uniforms, Wendco
provided them. D. Exhibit C, pp. 92-93.

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18. Plaintiff’s duties included the following: serving soda, sweeping and
mopping the restaurant floor, cleaning chairs, tables, glasses, trash bins and
parking lot, putting the mixture in the Frosty machine, warming chili and
cheese, serving hot potatoes, and cleaning the grill. D. Exhibit A, ¶ 15; D.
Exhibit B, pp. 20, 21, 24, 25, 26; D. Exhibit C, pp. 68-72.
19. When Plaintiff began working at Wendco through CAPI, he received
training in coordination with CAPI pertaining to his duties and
responsibilities. D. Exhibit A, ¶ 16, 17; D. Exhibit A-3; D. Exhibit B, pp. 20,
21, 24, 25, 26; D. Exhibit C, pp. 68-72.
20. During said training CAPI established phases of work and intervention time
to monitor plaintiff’s performance. D. Exhibit A-3; D. Exhibit A, ¶ 16-17.
21. Wendco worked closely with CAPI in order to establish the tasks that
Plaintiff could perform to achieve the best performance and integration of
the duties and functions assigned to him. D. Exhibit A, ¶ 16; D. Exhibit A-3.
22. During CAPI’s intervention time, CAPI determined that Plaintiff could
perform all of the tasks that were assigned to him. D. Exhibit A, ¶ 17; D.
Exhibit A-3.
23. Plaintiff did not file an internal complaint with regard to any of his
supervisors, co-workers or any other company personnel during his time at
Wendco. D. Exhibit C, pp. 34-35; D. Exhibit A, ¶ 18.
24. Tirado did not file a written or verbal internal complaint of disability
discrimination or retaliation during his time at Wendco. D. Exhibit C, pp.
34-35, 63; D. Exhibit A, ¶¶ 19 & 20.

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
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25. On one occasion, Plaintiff’s mother went to pick Tirado up from work and
heard Avilés telling Plaintiff in the garbage area that he had to do things the
“easy way or the hard way” and that if not he would have to go to hell. P.
Exhibit 1, p. 42, l. 9-23.
26. On another occasion, Avilés ordered Plaintiff to go fry potatoes while he was
finishing cleaning the toilets. When Plaintiff told her he was going to wash
his hands, she proceeded to punch out his time card and to tell him to go to
hell. P. Exhibit 1, p. 35, l. 20-25; p. 36, l. 1-4.
27. The store manager at that time, Burgos, confirmed to Plaintiff’s mother that
this incident had in fact occurred. P. Exhibit 1, p. 36, l. 6-13.
28. Plaintiff’s mother talked with one of the main supervisors from Wendco’s
central offices to explain the situation that was happening with her son, as
instructed by store manager Burgos. P. Exhibit 1, p. 36, l. 10-13, 20-25.
29. As a result of this issue, Plaintiff’s mother visited the Puerto Rico
Department of Labor’s Norms and Salaries Office. P. Exhibit 1, p. 38, l. 2-6.
30. Wendco Store Manager Burgos told Plaintiff’s mother he would call to
complain on behalf of Tirado. P. Exhibit 1, p. 76, l. 15-24.
31. On July 12, 2012, Nelly Díaz, Interim Regional Administrator for the Bureau
of Labor, sent an email in which she notified Wendco about an alleged
situation regarding Plaintiff’s work environment. D. Exhibit A-6; D. Exhibit
A, ¶ 21.
32. As a result thereof, Wendco’s Human Resources Department commenced
an investigation. D. Exhibit A, ¶ 22; D. Exhibit A-6; D. Exhibit A-7.

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
Opinion and Order
Civil 14-1316 (CVR)
Page 9

33. As part of the investigation, Wendco contacted CAPI in order to keep it
abreast of the situation. D. Exhibit A, ¶ 23; D. Exhibit A-7.
34. On August 22, 2012, a social worker from CAPI visited the restaurant where
Plaintiff was working in and met with his immediate supervisor, Avilés, to
discuss among other things Plaintiff’s performance. D. Exhibit A, ¶ 24; D.
Exhibit A-7.
35. At the conclusion of the investigation, Wendco concluded that, based on the
evidence collected, Plaintiff’s allegations with regard to his supervisor were
unfounded. Plaintiff was not interviewed as part of the investigation. D.
Exhibit A, ¶ 25.
36. As part of the Labor Department’s investigation, it was agreed that Wendco
would conduct a follow-up investigation. D. Exhibit A, ¶ 26; D. Exhibit A-8.
37. In March 2013, Wendco conducted a follow-up investigation which
consisted of among other things, interviewing Plaintiff’s co-workers.
Wendco concluded that Plaintiff’s allegations pertaining to his supervisor,
Avilés, were unfounded. D. Exhibit A, par. 27; D. Exhibit A-8.
38. During Plaintiff’s employment with Wendco, the only accommodation that
Plaintiff requested was related to the use of stairs because of his fear of
heights. This accommodation was granted to Plaintiff at all times during his
employment. D. Exhibit B, pp. 26, l. 6-19; D. Exhibit C, pp. 32, 33, 73.
39. Besides this request, Plaintiff did not submit any other request for
accommodation. P. Exhibit C, pp. 32-33.

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
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Civil 14-1316 (CVR)
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40. At all times during his employment, Plaintiff was provided with the
accommodations in accordance with his alleged disability and CAPI’s
recommendations. D. Exhibit A, ¶ 28.
41. At no point during Plaintiff’s employment was he demoted, suspended, or
stripped of his duties and/or responsibilities. D. Exhibit A, ¶ 29.
42. At all times during Plaintiff’s employment he was able to perform all of the
duties and responsibilities assigned to him while at Wendco. D. Exhibit C,
pp. 69-70.
43. Plaintiff’s disability did not prevent him from performing any of the duties
and responsibilities of his position, although sometimes it was confusing for
him and took him longer to do them. D. Exhibit C, pp. 69-70; P. Exhibit 3,
p. 37, l. 3-20.
44. Pursuant to Wendco’s time records, Plaintiff was assigned to work on
Fridays and Saturdays prior to August 15, 2012. D. Exhibit A-11; D. Exhibit
A, ¶ 32.
45. Pursuant to the attendance report of January 10, 2012, Plaintiff worked
from 12:00 pm to 4:00 pm. D. Exhibit A-11; D. Exhibit A, ¶ 32.
46. Pursuant to the attendance report of April 11, 2012, Tirado punched out at
3:00 pm. D. Exhibit A-11; D. Exhibit A, ¶ 32.
47. On June 13, 2015, Plaintiff resigned from his job at Wendco. D. Exhibit A, ¶
33; D. Exhibit A-9; D. Exhibit B, p. 67.

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48. Dr. Leslie Ann Colón-Freyre (“Dr. Colón-Freyre”) is Plaintiff’s psychiatrist.
Dr. Colón-Freyre recommended that Plaintiff resign from Wendco, as it was
not beneficial for him to continue working there. P. Exhibit 3, p. 19, l. 4-13.
49. On August 15, 2012, Plaintiff filed an administrative charge before the
Puerto

Rico

Antidiscrimination

Unit

(“ADU”),

alleging

disability

discrimination. The ADU conducted two hearings. D. Exhibit D; D. Exhibit
E.
50. On December 13, 2013, the ADU notified its determination of “No Probable
Cause” of employment discrimination due to disability. D. Exhibit E.
51. On January 27, 2014, the Equal Employment Opportunity Commission
(“EEOC”) issued a Dismissal and Notice of Right to Sue, stating that it was
closing its file. The EEOC further asserted that: “[t]he EEOC has adopted
the findings of the state or local fair employment practices agency that
investigated this charge.” D. Exhibit F.
52. On January 30, 2014, Plaintiff filed a second administrative charge before
the ADU alleging retaliation.
53. On September 15, 2014, the EEOC issued a notification closing the case,
stating that, “the EEOC is unable to conclude that the information obtained
established violations of the statutes”. D. Exhibits G and H.
LEGAL ANALYSIS
Plaintiff has brought forth claims for hostile work environment based on his
disability and retaliation in violation of the ADA, and several state law claims based on
similar state statutes. The Court analyzes each one in turn.

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A. Hostile Work Environment.
Plaintiff Tirado’s main allegation is that on or about September 2011 his
supervisor, Avilés, began harassing him because of his disability and he was subjected to
a hostile work environment in violation of the law. Succinctly put, Plaintiff’s claims are:
(1) Avilés ordered him to cook potatoes; after Plaintiff went to wash his hands, Avilés
clocked him out and screamed at him to leave the store; (2) Avilés had him performing
duties that he could allegedly not do because of his condition, such as cooking potatoes;
(3) he was ordered to perform duties which were not his responsibility; (4) Avilés told him
that he would learn “the easy way or the hard way” to perform other tasks; (5) Avilés
would constantly check on him during his entire shift; (6) on three occasions, after
arriving at work, Avilés told Plaintiff to leave because there was no work for him on that
day and then proceeded to mark him as absent; (7) Avilés yelled at Plaintiff a lot and on
one occasion, Plaintiff’s mother allegedly witnessed how Avilés yelled at Plaintiff in front
of clients and employees asking if he had cleaned everything and that, if he did not, she
was going to kick him out and call his house; (8) Plaintiff was supposed to clock out at
3:00 pm on one occasion and was still working at 3:20 pm; (9) other employees mocked
him in front of the supervisor and Avilés failed to take any action; (10) Plaintiff suffered
two dizzy spells at work and his supervisor failed to help him; and (11) on one occasion
Avilés told Plaintiff’s mother that Plaintiff had too many absences and she threatened to
fire him if his attendance did not improve. (Docket No. 28 at pp. 4-11).
In order to prove Plaintiff’s claims, he must first establish that he was (1) disabled,
(2) subjected to a hostile environment, and (3) the hostility was directed at him because
of his disability. Quiles-Quiles v. Henderson, 439 F.3d 1, 5 (1st Cir. 2006). Once Plaintiff

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
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establishes a prima facie case, the burden then shifts to Defendant to put forth a
legitimate, non-discriminatory reason for its adverse employment decision and to
produce credible evidence in support of its non-discriminatory reason. Freadman v.
Metropolitan Property and Caves. Ins. Co., 484 F.3d 91 (1st Cir. 2007). If Defendant
offers such a legitimate, non-discriminatory reason, the burden shifts back to Plaintiff to
put forth evidence proving that the defendant's reason is “mere pretext, cloaking
discriminatory animus.” Freadman, 484 F.3d at 99.
An individual is considered disabled if he (1) has a physical or mental impairment
which substantially limits one or more major life activities, (2) has a record of such
impairment, or (3) is regarded as having such an impairment. Id. at 5. In the case at bar,
there is no question that Plaintiff Tirado suffered from a mental disability since birth, and
in fact, Defendant so admitted. See Docket No. 76-1, p. 39, item no. 18.
Turning then to the harassment claim itself, in order to establish a hostile work
environment, Plaintiff has to establish that he suffered some sort of adverse employment
action as a result of his disability, and that the change materially affected the conditions
of his job. That is, Plaintiff 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367 (1993). Among
the factors relevant to this inquiry are the severity of the conduct, its frequency, and
whether it unreasonably interfered with the victim’s work performance. Harris, 510 U.S.
at 23, 114 S.Ct. 367.

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
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Civil 14-1316 (CVR)
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The First Circuit has explained that “[a]dverse employment actions include
‘demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted
negative job evaluations, and toleration of harassment by other employees.’ ” White v.
New Hampshire Dept. of Corrections, 221 F.3d 254, 262 (1st Cir. 2000) (quoting
Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998)).
“Work places are rarely idyllic retreats, and the mere fact that an employee is displeased
by an employer’s act or omission does not elevate that act or omission to the level of a
materially adverse employment action.” Marrero v. Goya of Puerto Rico, 304 F.3d 7, 23
(1st Cir. 2002).
Although there were some unsavory incidents in this case and Avilés might have
used strong language on several occasions, the Court finds the instances fail to comply
with the legal standard. The occasions complained of simply are sporadic, and are simply
not pervasive enough to alter the conditions of Plaintiff’s employment. (“[A] materially
adverse change in the terms and conditions of employment must be more disruptive than
a mere inconvenience or an alteration of job responsibilities.”). “Otherwise every trivial
personnel action that an irritable ... employee did not like would form the basis of a
discrimination suit.” Williams v. Bristol–Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.
1996).
The Court reaches this conclusion mindful that, while the line between an
unpleasant and a hostile environment one may sometimes be difficult to discern, “[t]itle
VII does not attempt ‘to purge the workplace of vulgarity’ ”. Del Pilar Salgado v. Abbott
Labs., 520 F. Supp. 2d 279, 289 (D.P.R. 2007) (quoting Baskerville v. Culligan Int’l Co.,
50 F.3d 428, 430-431 (7th Cir. 1995)); see also Faragher v. City of Boca Raton, 524 U.S.

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
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775, 788, 118 S. Ct. 2275, 2284 (1998) (Courts must filter out “the ordinary tribulations of
the workplace, such as the sporadic use of abusive language, gender-related jokes, and
occasional teasing); Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 46-47
(1st Cir. 2003) (“[A] supervisor’s unprofessional managerial approach ... [is] not the focus
of the discrimination laws”); Gartman v. Gencorp Inc., 120 F.3d 127 (8th Cir. 1997) (Rude
comments which are gender neutral do not imply discriminatory attitude); and Manning
v. Metropolitan Life Ins. Co., 127 F.3d 686, 693 (8th Cir. 1997) (holding that evidence of
“disrespect and ostracization by ... supervisors” did not establish an adverse employment
action). These are the types of incidents that the Court found in the present case, which
are not actionable.
Although Plaintiff asks the Court to discredit two investigations launched by
Defendant into this matter, they do form part of the administrative record in this case and
thus, the Court is obligated to consider them. The record further contains multiple letters
written by Plaintiff’s work colleagues stating that that they did not witness any
disrespectful behavior by Avilés towards Plaintiff. This is important because it serves to
establish that, while some incidents might have occurred, they did not occur with the
frequency or intensity alleged by Plaintiff in order to be actionable. Furthermore, CAPI
also conducted its own investigation into the matter and reached the same conclusion.
Finally, it is worth noting that the two investigations took place because the Labor
Department initially intervened in this matter, yet the allegations were found wanting.
Plaintiff also takes issue with the fact that his contract with CAPI states he would
be performing only “maintenance” duties and, although initially confined to that, he was
later assigned to work the grill and the potato fryer areas. Yet, Plaintiff admitted in his

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
Opinion and Order
Civil 14-1316 (CVR)
Page 16

deposition that he could perform all these tasks and in fact, performed them well. The
fact that performing these additional tasks might have made him uncomfortable and he
stated he “didn’t have time” sometimes to complete them does not make the actions
complained of harassment. Furthermore, Defendant’s employment contract failed to
establish that Plaintiff would be limited only to maintenance and to cleaning the dining
area. As such, Plaintiff’s assignment of duties to other areas was entirely appropriate,
provided he could perform the duties he was assigned to, which he demonstrated and
admitted he could perform.
Therefore, on the facts as alleged, the Court cannot conclude that Plaintiff has
established a viable hostile work environment claim. As such, Defendant’s Motion for
Summary Judgment as to the hostile work environment is GRANTED and the same is
DISMISSED WITH PREJUDICE.
B. Retaliation.
To prove his retaliation claim, Plaintiff had to establish that (1) he engaged in
protected conduct; (2) he experienced an adverse employment action; and (3) there was
a causal connection between the protected conduct and the adverse employment action.
The adverse employment action requirement may be satisfied by showing the creation of
a hostile work environment or the intensification of a pre-existing hostile environment.
See Noviello v. Boston, 398 F.3d 76, 89 (1st Cir. 2005); Gregory v. Daly, 243 F.3d 687,
701 (2d Cir. 2001). And, in proper circumstances, the causation element may be
established by evidence that there was a temporal proximity between the behavior in
question and the employee's complaint. Noviello, 398 F.3d at 86. However, “the alleged
retaliatory action must be material, producing a significant, not trivial, harm.” Carmona-

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
Opinion and Order
Civil 14-1316 (CVR)
Page 17

Rivera v. Commonwealth of Puerto Rico, 464 F.3d 14, 19 (1st Cir. 2006). Once Plaintiff
satisfies

the

prima

facie

burden,

Defendant

must

produce

a

legitimate,

nondiscriminatory reason for the adverse action. The ultimate burden then falls on the
plaintiff to show that the employer’s articulated reason was, in fact, a pretext covering up
retaliation. Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir.2003).
Plaintiff Tirado avers that adverse employment actions were taken against him
after he filed a discrimination charge before the EEOC in August, 2012, to wit: a reduction
in working hours; he was assigned to work on Fridays and Saturdays; and Defendant did
not provide him with new uniforms for two years. (Docket No. 28, at p. 10-11).
It is undisputed that the filing of a claim before the EEOC constitutes protected
action. Yet, the Court finds Plaintiff is unable to carry his burden on the other two prongs
of the legal standard.
Regarding the reduction in hours, the personnel attendance report submitted by
Defendant shows otherwise. For instance, the time sheet for the week of December 8,
2012, shows Plaintiff worked 21 hours. In the same fashion, the week of January 7, 2013
also shows him working 21 hours.1 As a whole, it would seem that Plaintiff averaged
between 14-18 working hours a week, which belies his allegation that his working hours
were reduced to 8. In fact, Plaintiff even admits that other employees working hours were
reduced. See Docket No. 63, p. 10 (“it is clear that while other employees suffered a
reduction in hours; it was Plaintiff who suffered the biggest reduction”). A claim for
retaliation cannot lie if the actions complained of were instituted across the board and
See also Defendant’s Exhibit A-11, where a sampling was taken of the hours Plaintiff worked on a weekly
basis after he filed his EEOC claim: October 27, 2012: 24 hours; November 17, 2012: 22 hours; December
29, 2012: 18 hours; January 28, 2013: 14 hours; February 11, 2012; 22 hours; March 4, 2013: 17.50 hours;
March 18, 2013: 22 hours; April 1, 2013; 12 hours; April 8, 2013: 16 hours; April 22, 2013: 17 hours.
1

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
Opinion and Order
Civil 14-1316 (CVR)
Page 18

applied to other employees as well. Furthermore, evidence of discriminatory or disparate
treatment in the time period between the protected activity and the adverse employment
action can be sufficient to show a causal connection. Che v. Massachusetts Bay Transp.
Auth., 342 F.3d 31, 38 (1st Cir. 2003). No such disparity was shown here.
Even assuming that Plaintiff could establish a prima facie case, Defendant has
shown that it had a legitimate, nondiscriminatory reason for the reduction in hours. It is
uncontested that by the end of 2012, due to economic reasons, the Wendco Operations
Management opted to reduce all of the employees’ weekly working hours to twenty-five
(25) hours or less, except management. As a result thereof, store managers proceeded to
reduce the weekly working hours of all of the restaurant employees, with certain
exceptions pertaining to special situations or circumstances. Plaintiff, however, was
working under a limited work schedule contract which provided for an 8 to 20 hour week
schedule, and therefore, his hours were not reduced. Pursuant to Company records by
the end of 2012, Plaintiff’s weekly working hours averaged between 18-24 hours.
Moreover, the relevant time records demonstrate that even before Plaintiff filed his EEOC
charge, he had already been assigned to work on Fridays and Saturdays.

Finally,

regarding the uniforms, Plaintiff’s mother admitted that when she asked for the new
uniforms, Defendant provided them to Plaintiff.
Because Defendant provided a valid non-discriminatory reason for its actions,
Plaintiff must then bring forth evidence proving that this reason is pretextual. Plainitff
has been unable to do so. See Rivera-Colón v. Mills, 646 F. Supp. 2d 224, 237 (D.P.R.
2009), aff'd sub nom. Rivera-Colón v. Mills, 635 F.3d 9 (1st Cir. 2011) (“A plaintiff can
demonstrate that an employer’s stated reasons are pretextual in any number of ways,

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
Opinion and Order
Civil 14-1316 (CVR)
Page 19

including by producing evidence that plaintiff was treated differently from similarly
situated employees”).
In the case at bar, besides stating that the timing of the restructuring is
“suspicious”, Plaintiff brings forth no evidence for the to conclude that Defendant acted
with retaliatory and discriminatory mindset. Ramírez Rodríguez v. Boehringer Ingelheim
Pharmaceuticals, Inc., 425 F.3d 67, 86 (1st Cir. 2005) (upholding dismissal because the
plaintiff failed to point to any “comments by the employer which intimate a retaliatory
mindset” or demonstrated that he was subjected to differential treatment after filing the
ADU complaint).
Since Plaintiff cannot show that Wendco’s proffered reason was pretextual and
that retaliation was the only factor behind the alleged retaliatory act, his retaliation claim
must also fail and is hereby DISMISSED WITH PREJUDICE .
C. State law claims.
Law 44 is Puerto Rico’s counterpart to the ADA. See Arce v. ARAMARK Corp., 239
F.Supp.2d 153, 169 (D.P.R. 2003). Like the ADA, Law 44 prohibits discrimination against
individuals with disabilities, and “creates an obligation for any employer to provide
reasonable accommodations, and prohibits discrimination against persons with
disabilities.” Román Martínez v. Delta Maint. Serv., Inc., 229 F.Supp.2d 79, 85 (D.P.R.
2002) (quoting Ríos Jaimán v. Cidra Mfg. Operations of Puerto Rico, Inc., 145 D.P.R. 746,
749 (1998)). Thus, the elements of proof necessary for a successful Law 44 claim are
essentially the same as those for bringing a claim under the ADA. See, e.g., Román
Martínez, 229 F.Supp.2d at 85; Zayas v. Commonwealth of Puerto Rico, 378 F.Supp.2d
13, 23–24 (D.P.R. 2005).

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
Opinion and Order
Civil 14-1316 (CVR)
Page 20

Having found that Plaintiff’s claims under the ADA must fail, his Law 44 claims
must therefore also suffer the same fate. Accordingly, Defendant’s Motion for Summary
Judgment under Puerto Rico Law 44 is hereby GRANTED and the claim under Law 44 is
hereby DISMISSED WITH PREJUDICE.
Law 115, on the other hand, protects employees who collaborate in investigations
or offer testimony before an administrative, judicial or legislative forum, from adverse
actions by their employers. P.R. Laws Ann. tit. 29, § 194a. Much like Title VII and the
ADA. Law 115 establishes a burden-shifting framework. The employee must prove the
violation through direct or circumstantial evidence that he participated in a protected
activity and was subsequently discharged, threatened or discriminated against in his
employment. Once done, the employer must provide a nondiscriminatory legitimate
reason for the discharge, wherein the plaintiff must prove said reason is pretextual. Id. at
§ 194a(c).
Even assuming that Plaintiff Tirado has made out a prima facie case, his claim
under Law 115 must still fail. Because Defendant has put forth a legitimate, nondiscriminatory reason in its defense, Plaintiff is once again tripped up by the remaining
requirements—that he suffered an adverse employment action and showing that
Defendant’s actions were a pretext. Inasmuch as Plaintiff has failed to make this showing,
his retaliation claim under Law 115 must also fail.
Based on the foregoing, Defendant’s Motion for Summary Judgment as to the Law
115 claim is GRANTED and the claim under Law 115 is DISMISSED WITH PREJUDICE.

Joel Tirado González, v. Wendco of Puerto Rico, Inc.
Opinion and Order
Civil 14-1316 (CVR)
Page 21

CONCLUSION
For all the foregoing reasons, the Court GRANTS Defendant Wendco’s Motion for
Summary Judgment (Docket No. 55) and DISMISSES WITH PREJUDICE this case in its
entirety.
Judgment will be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 10th day of January, 2018.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ RIVE
UNITED STATES MAGISTRATE JUDGE