Gonzalez-Bermudez v. Abbott Laboratories PR Inc. et al

Filing 187

OPINION AND ORDER denying 163 Motion for Judgment as a Matter of Law; issue of backpay is held in abeyance. Signed by Judge Juan M. Perez-Gimenez on 10/30/2018. (PMA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUZ GONZALEZ-BERMUDEZ,
Plaintiff,

CIVIL NO. 14-1620 (PG)

v.
ABBOTT LABORATORIES PR INC.,
ET. AL.,
Defendants.

OPINION AND ORDER
Plaintiff Luz Gonzalez-Bermudez (hereinafter “Plaintiff” or “Gonzalez”) filed this action
pursuant to the Age Discrimination in Employment Act (“ADEA” or “the Act”), 29 U.S.C. §§
621-634, against her employer Abbott Laboratories PR Inc. (“Abbott” or “the Company”) and
her supervisor Kim Perez (hereinafter “Perez”). Plaintiff also raised supplemental state law
claims of age discrimination under Puerto Rico’s antidiscrimination statute, Law No. 100 of
June 30, 1959 (“Law No. 100”), P.R. LAWS ANN. tit. 29, § 146, et seq., as well as claims of
retaliation under Puerto Rico’s anti-retaliation statute, Law No. 115 of December 20, 1991
(“Law No. 115”), P.R. LAWS ANN. tit. 29, § 194a. After denying defendants’ motion for summary
judgment, a jury trial was held. At the end of Plaintiff’s case in chief, and again before the case
went to the jury, defendants moved for judgment as a matter of law under Rule 50(a)(1) of the
Federal Rules of Civil Procedure. On both occasions, the court kept the motions under
advisement. After deliberating, the jury found in favor of Plaintiff and awarded her
$4,000,000.00

($3,000,000.00

against

Abbott;

$1,000,000.00

against

Perez)

in

compensatory damages and $250,000.00 in back pay. See Docket No. 138. Pursuant to the
doubling provisions of the applicable statutes, the court entered judgment in the amount of

Civil No. 14-1620(PG)

Page 2

$8,250,000 in both back-pay and emotional damages, plus $250,000 in liquidated damages.
See Docket No. 150.
Defendants filed several post-judgment motions seeking various remedies, namely: (1)
a renewed motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules
of Civil Procedure (Docket No. 163); (2) a motion for new trial or alternatively for remittitur,
under Rules 50(b), 59(a) and 59(e) (Docket No. 164); (3) a motion for relief from judgment or
order under Rule 60 and/or motion to alter or amend judgment under Rule 59(e) (Docket No.
165). Below, the court will address the arguments defendants raised in their motion for
judgment as a matter of law under Rule 50(b). For the reasons that follow, the court DENIES
defendants’ request.
I.

STANDARD OF REVIEW

Rule 50(b) – Motion for Judgment as a Matter of Law
Pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, if a party has been fully
heard on an issue during a jury trial and a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue, an opposing party may file a motion for
judgment as a matter of law at any time before the case is submitted to the jury. Fed. R. Civ. P.
50(a). Rule 50(b) provides that, if the court does not grant the motion, a party may renew a
motion for judgment as a matter of law “[n]o later than 28 days after the entry of judgment —
or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the
jury was discharged.” Fed. R. Civ. P. 50(b). The movant may file the renewed Rule 50(b) motion
and may include an alternative or joint request for a new trial under Rule 59. “In ruling on the
renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or (3) direct the entry of judgment as a matter of law.” Id. As a procedural

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matter, the party renewing a motion for judgement as a matter of law pursuant to Rule 50(b)
“is required to have moved for judgment as a matter of law at the close of all evidence.” Ginorio
v. Contreras, No. CV 03-2317 (PG), 2008 WL 11424136, at *2 (D.P.R. June 13, 2008), aff’d sub
nom. Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508 (1st Cir. 2009) (citing Keisling v.
SER-Jobs for Progress, Inc., 19 F.3d 755, 758 (1st Cir. 1994)). “In addition, this motion must
include every claim upon which the party bases its request for judgment as a matter of law.
Failure to do so is a ‘fatal omission.’” Ginorio, 2008 WL 11424136 at *2 (citing Sanchez v. Puerto
Rico Oil Company, 37 F.3d 712, 723 (1st Cir. 1994)). 1
In examining a Rule 50 motion, “[o]ur review is weighted toward preservation of the
jury verdict … .” N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 26 (1st Cir. 2005). “[A] jury’s
verdict must be upheld unless the facts and inferences, viewed in the light most favorable to
the verdict, point so strongly and overwhelmingly in favor of the movant that a reasonable jury
could not have [returned the verdict].” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1,
13 (1st Cir. 2009)(quotation marks omitted)(citing Borges Colon v. Roman–Abreu, 438 F.3d 1,
14 (1st Cir.2006)). “[W]e view the facts in the light most favorable to the verdict, deferring ‘to
the jury’s discernible resolution of disputed factual issues.’” Ciolino v. Gikas, 861 F.3d 296, 299
(1st Cir. 2017) (quoting Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir. 2010)). “[W]hen a party
challenges a jury verdict, it is not our position to evaluate the credibility of witnesses or the
weight of the evidence.” Long v. Fairbank Reconstruction Corp., 701 F.3d 1, 4 (1st Cir. 2012)
(citing Attrezzi, LLC v. Maytag Corp., 436 F.3d 32, 37 (1st Cir.2006)).

“A party may renew its motion no later than 10 days after the entry of judgment. … However, only those grounds
specified at the close of all the evidence, and no others, are preserved for review.” Ginorio, 2008 WL 11424136 at
*2 n.3 (citing Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir. 1995)).
1

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Page 4

II. DISCUSSION
As follows, the court will discuss each of the arguments defendants raised in their
renewed motion pursuant to Rule 50(b) in turn.
1. Age Discrimination – Demotion of March 2013
Plaintiff filed age discrimination claims under both ADEA and Law No. 100. The ADEA
makes it unlawful for an employer to “fail or refuse to hire or 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.” Velez v. Thermo
King de Puerto Rico, Inc., 585 F.3d 441, 446 (1st Cir. 2009) (quoting 29 U.S.C. § 623(a)(1)). A
plaintiff must “establish that age was the ‘but-for’ cause of the employer’s adverse action.”
Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009). “Law 100 bans employment age
discrimination. … [O]n the merits, claims under both statutes ‘are coterminous.’” MoralesGuadalupe v. Oriental Bank & Tr., No. 16-1535 (GAG), 2018 WL 1116544, at *8 (D.P.R. Feb. 26,
2018) (citing Davila v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d 9, 18
(1st Cir. 2007)).
Plaintiff’s age discrimination claim stems from a demotion she suffered in March of
2013. As follows, the court will summarize some relevant background information for context.
Gonzalez began to work at Abbott in November of 1984 as a medical sales representative
with a specialty in nutrition in a Level 12 2 position. See Docket No. 129 at p. 4. Within fifteen
years, she moved up the ranks to a Level 14 position and eventually became a Senior Sales Rep.
See id. at pp. 5-6. On or about 2005, she became a Product Manager (Level 15). See id. at pp.

Exempt and non-exempt positions at Abbott are assigned levels. Exempt employees’ levels are in numbers. See
Docket No. 125 at pp. 4-5.
2

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6-7. She subsequently became a District Manager, then a Pediatric Unit Manager (Level 17),
and then a National Sales Manager (Level 17-18). See id. at pp. 8-10. As the latter, she
supervised twenty-eight (28) employees, among them other supervisors and sales reps. See id.
at p. 10. Before 2011, Plaintiff had always obtained ratings of Achieved Expectations (“AE”) or
Exceeded Expectations (“EE”) in her performance evaluations. See id. at pp. 11-12.
In November of 2010, Abbott underwent a reorganization (“the Reorganization”), as a
result of which the Company eliminated the positions of three employees in its Nutrition
Division, namely: Plaintiff, Rocio Oliver (“Oliver”) and Dennis Torres (“Torres”). See Docket
No. 125 at pp. 46-48. At the time of the Reorganization, Plaintiff was a National Sales Manager
(Level 18) and supervised both Oliver and Torres. See Docket No. 129 at pp. 9-10, 12. Instead
of terminating their employment, the Company placed these three employees in lower-level
positions. 3 See Docket No. 125 at pp. 47-48. Notwithstanding, these employees were notified
that they would continue to receive the compensation of the positions they held prior to the
Reorganization for an interim period of two years. See id. at p. 48.
As a result of the Reorganization, co-defendant Kim Perez became Plaintiff’s supervisor
as of January 10, 2011, see Docket No. 129 at p. 14, and Gonzalez was named HCP Institutional
Marketing Manager, which was a Level 17 position, see id. at pp. 15-16. Towards the end of
2011, Gonzalez filed a workplace harassment complaint against Kim Perez. Abbott’s Human
Resources department investigated in accordance with the Company’s policies. See Docket No.
125 at pp. 9-11. After investigating Plaintiff’s allegations, the Company determined that Kim
Perez had not engaged in any wrongdoing, with which Plaintiff disagreed. See Docket No. 130

The employees affected by the Reorganization had a duty to apply to other positions during this two-year period,
but none of them did. See Docket No. 126 at p. 34; Docket No. 155 at p. 3; Docket No. 129 at p. 19. Gonzalez testified
that she did not apply to any position because the Company did not announce vacancies in any position that was
graded above the one that she was occupying during this time. See id.
3

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at pp. 124-125. On December 8, 2011, Plaintiff left on sick leave until June 8, 2012. See Docket
No. 155 at p. 60.
After the two-year interim period ended in March of 2013, Gonzalez was informed that
going forward, she would occupy a Product Manager Level 15 position. See Docket No. 125 at
p. 58. That is, between the time of the Reorganization up until March of 2013, the Company
decreased Gonzalez’s positions three grade levels. Her income was reduced and because she
was placed at the upper end of the Level 15 salary range, her salary was capped (“frozen”) and
despite a good performance, she was unable to receive any salary increases or raises. See Docket
No. 129 at pp. 22-23.
In their Rule 50(b) motion, defendants first argue that Plaintiff failed to establish a
prima facie case of age discrimination or that age was the “but-for” reason for her readjustment
to a lower-level position in March of 2013. In support of their request, defendants argue the
following: (1) that she did not suffer an adverse employment action because she voluntarily
accepted the demotion to avoid a layoff when she agreed to the terms of the Reorganization,
Docket No. 163 at p. 4; (2) that she is not similarly-situated to Oliver and Torres because “they
were serving in different jobs with different responsibilities, had different supervisors and were
not comparable to Plaintiff in any way,” id. at pp. 5-6; (3) that Plaintiff “was not meeting
Abbott’s legitimate or sensible business expectations and the requirements for her
performance” while occupying the Level 17 position during the interim period, id. at pp. 5-6;
and, (4) that Plaintiff failed to show that age was the “but-for” reason her position was adjusted
downward, id. at pp. 7-9.

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As a threshold matter, Plaintiff argues in her opposition that applying the McDonnell
Douglas 4 burden-shifting framework at this stage is futile because once a case has been tried
on the merits, the analysis should be confined to the ultimate question of discrimination and
retaliation. See Docket No. 170. In support, Plaintiff cites Sanchez v. Puerto Rico Oil Co., in
which the First Circuit Court of Appeals held that “when, as now, an employment
discrimination action has been submitted to a jury, the burden-shifting framework has fulfilled
its function, and backtracking serves no useful purpose.” 37 F.3d 712, 720 (1st Cir. 1994).
The court agrees with Plaintiff’s argument. “To focus on the existence of a prima facie
case after a discrimination case has been fully tried on the merits is to ‘unnecessarily evade[ ]
the ultimate question of discrimination vel non.’” Id. (citing United States Postal Serv. Bd. of
Govs. v. Aikens, 460 U.S. 711, 713–14 (1983)). “This is because, at that stage, McDonnell
Douglas has served its purpose, and the evaluation of a post-trial motion assesses whether the
plaintiff met his overall burden of establishing discrimination.” Aly v. Mohegan Council, Boy
Scouts of Am., 711 F.3d 34, 47 (1st Cir. 2013) (citing Sanchez, 37 F.3d at 720). See also OliverasZapata v. Univision Puerto Rico, Inc., 939 F. Supp. 2d 82, 84 (D.P.R. 2012) (“[Defendant] spills
a great deal of ink in its 102–page motion arguing that [plaintiff] failed to establish a prima
facie case, which, as the First Circuit has noted, is not the correct focus at this juncture.”). As a
result, the court will confine its review to the ultimate question of discrimination.
Plaintiff also opposes defendants’ Rule 50(b) motion on the grounds that defendants
ignored the applicable standard of review by failing to present the facts in the light most
favorable to the verdict, focusing exclusively instead on the evidence that supported their
theory of the case, which the jury clearly rejected. See Docket No. 170 at pp. 20-22. As set forth

4

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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supra, the court must “examine the evidence in the light most favorable to the nonmovant and
will grant the motion only when the evidence points so strongly and overwhelmingly in favor
of the moving party that no reasonable jury could have returned a verdict adverse to that party.”
Alejandro-Ortiz v. Puerto Rico Elec. Power Auth. (PREPA), 756 F.3d 23, 26 (1st Cir. 2014)
(citations and quotation marks omitted). After review of defendants’ motion, the court agrees
that what the movants would have the court do is weigh the evidence in their favor and
substitute defendants’ views for those of the jury without regard to the significant amount of
evidence to the contrary. Regardless of how defendants framed their arguments, the court will
address these in accordance with the applicable law and standard of review, viewing the facts
in the light most favorable towards the preservation of the verdict.
First, defendants claim that Gonzalez voluntarily accepted her demotion to avoid a layoff
and that the terms of the Reorganization were explained to her. Citing to Plaintiff’s testimony
at trial, defendants point out that she “knew that her salary and fringe benefits could be lowered
in the future corresponding to the position that would become available” when the two-year
period ended. See Docket 163 at p. 4. In contrast to what defendants posit, Plaintiff testified
that she understood that once the two-year period ended, her salary and benefits would be
readjusted to the HCP Marketing Manager position (Level 17) she was occupying. See Docket
No. 129 at pp. 17-19. That is, she understood that she would only suffer a downward adjustment
of just one level at the end of the interim period. But such was not the case. Instead, Human
Resources Director Luz Miriam Adames (“Adames”) and co-defendant Perez informed
Gonzalez that the position she was currently occupying was being eliminated and that going
forward she would hold the position of Product Manager, which was a Level 15 position. See id.
at pp. 16-17. As a result of these news, Plaintiff testified that she felt ill and anxious and was
referred to the State Insurance Fund (“SIF”) by the doctor that works at the Company. See

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Docket No. 130 at pp. 5-6. From this testimony, a reasonable jury could have concluded that
Plaintiff did not “accept” the demotion - as defendants propose in their post-judgment motions
– because the prospect of having the position she was occupying during the interim period be
suddenly eliminated is not something Gonzalez understood at the time of the Reorganization.
The court thus rejects this argument in support of their request.
Defendants’ second argument is that Plaintiff was not “comparable” or “similarly
situated” to Torres and Oliver, the other two employees that were impacted by the
Reorganization. According to defendants, these two employees were not similarly-situated to
Plaintiff because they were performing other duties for different supervisors and “were not
comparable to Plaintiff in any way,” Docket No. 163 at p. 5. In addition, defendants argue that
both of these employees were within the same protected age group as Plaintiff, thereby
diminishing any indication of age bias. See id.
The record in this case shows that subsequent to the Reorganization, Oliver was assigned
to a Level 14 position, but continued to receive the salary and benefits of the Level 15 position
she previously occupied. In regard to Torres, the Company assigned him to a Level 14 position,
but he would continue to receive the salary and benefits of the Level 16 position he used to hold.
See Docket No. 125 at p. 48. At the end of the two-year term, both of these employees were
assigned to the position they were occupying during this interim period and their salary and
benefits were adjusted to the Level 14 positions they were respectively holding. However, as
Plaintiff points out, the positions they were holding as incumbents were not eliminated and
none of them suffered an additional downward adjustment in March of 2013. As a result,
Plaintiff complains that these employees were in fact treated differently, and that age was the
basis for this disparate treatment. See Docket No. 170 at p. 25.

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“[I]n order to be probative of discriminatory animus, a claim of disparate treatment
‘must rest on proof that the proposed analogue is similarly situated in material respects.’” Velez,
585 F.3d at 451 (citing Perkins v. Brigham & Women’s Hosp., 78 F.3d 747, 752 (1st Cir.1996)).
“The test is whether a ‘prudent person, looking objectively at the incidents, would think them
roughly equivalent and the protagonists similarly situated.’” Perkins, 78 F.3d at 751 (citing
Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.1989)). “While an exact
correlation is not necessary, the proponent must demonstrate that the cases are fair
congeners.” Velez, 585 F.3d 4at 451.
Contrary to defendants’ point of view, a reasonable jury may have thought that both
Oliver and Torres were “comparable” to Plaintiff in the sense that they were all “in the same
boat” in terms of the repercussions of the Reorganization on the status of their employment at
Abbott, as well as in regards to the conditions of the offer that the Company made them at the
time of the Reorganization. Although their employment situations were not identical, having
different posts and responsibilities, their respective situations need not be a carbon copy of
each other for purposes of a disparate treatment claim. Consequently, defendants’ argument
loses a leg to stand on in this regard. And even though both Torres and Oliver were also within
the protected age group under the relevant age discrimination laws, it is a fact that both of them
were substantially younger than Plaintiff: Torres was twelve (12) years younger, whereas
Oliver was nine (9) years younger. See Docket No. 126 at pp. 3-5. “The First Circuit Court of
Appeals has not set a bright line rule as to age difference that constitutes ‘significantly younger,’
but has outlined that a three-year age difference is insignificant while a seven-year age
difference is significant.” Lopez-Rosario v. Programa Seasonal Head Start/Early Head Start de
la Diocesis de Mayaguez, 245 F. Supp. 3d 360, 379 (D.P.R. 2017) (citing Williams v. Raytheon
Co., 220 F.3d 16, 20 (1st Cir. 2000) (finding a three-year age difference between plaintiff and

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similarly situated employee was “too insignificant to support a prima facie case of age
discrimination”); Velez, 585 F.3d 441, 444, 450 n.5 (finding age differences of seven, twenty,
and twenty-eight years to be significant)). Per the foregoing, the court finds that sufficient
evidence was presented at trial for a reasonable jury to conclude that defendants treated
Gonzalez disparately to her younger counterparts when her post was adjusted downward at the
end of the two-year interim period.
Defendants next claim that Plaintiff was not meeting Abbott’s legitimate performance
expectations by March of 2013. They point out that Gonzalez received a PA rating in 2011 and
that she admitted during trial to not being able to comply with deadlines and perform all of the
duties of the HCP Marketing Manager position. See Docket No. 163 at pp. 5-6. As a result of
these failures, her duties were redistributed at Plaintiff’s request. See id. at p. 6.
It is an uncontested fact that co-defendant Kim Perez was in charge of developing the
job description for the HCP Marketing Manager position to which Gonzalez was assigned after
the Reorganization. No one had held this position before. See Docket No. 155 at pp. 31-33. Kim
Perez testified in detail about this new position’s broad duties and responsibilities. See id. at
pp. 34-36. During this testimony, the court noted that as HCP Marketing Manager, Gonzalez
supervised “nobody.” Id. at p. 34. In contrast, Plaintiff testified that when she held the position
of National Sales Manager, she had twenty-eight (28) employees under her supervision. See
Docket No. 129 at pp. 9-10. Therefore, a reasonable fact-finder could conclude from these facts
that Perez concocted a position with a significant number of accountabilities, but Gonzalez
suddenly had no one to delegate on and assist her in their fulfillment. Therefore, a sensible jury
could have deemed Plaintiff’s request to eliminate some of these duties was warranted, and not
a sign of deficient performance. As a matter of fact, a reasonable jury could have inferred that

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Perez set Plaintiff up for failure by giving her unattainable goals without the proper supporting
staff.5
Moreover, given the Plaintiff’s track record at Abbott, the jury was right to question
defendants’ explanations for her demotion. From the time Gonzalez became an Abbott
employee in 1984 until the Reorganization, Plaintiff had always obtained ratings of Achieved
Expectations (“AE”) or Exceeded Expectations (“EE”) in her performance evaluations. See
Docket No. 129 at pp. 11-12. Plaintiff first received a Partially Achieved (“PA”) rating for her job
performance in the year 2011, which was after Kim Perez became her supervisor. See id. at p.
30. At any rate, in March of 2013, her most recent job performance evaluation was an AE
(“Achieve Expectations”), 6 which dispels defendants’ theory that Plaintiff was having
competency issues immediately prior to her demotion.
Finally, defendants contend that Plaintiff failed to set forth proof that her age was the
“but for” reason for the “adjustment” to her position in March of 2013. See Docket No. 163 at
pp. 7-9. Although the court already did away with the burden-shifting framework of analysis at
this stage, the court will discuss why defendants’ argument is unavailing.
First of all, this court has already held that a reasonable jury could have found enough
evidence was presented to support the conclusion that Plaintiff was the victim of disparate
treatment on the basis of age when her position was adjusted downward. “Disparate treatment
may be ‘competent proof that the explanation given for the challenged employment action was

See Antonucci v. Life Care Centers of Am., Inc., No. CIV.A. 06-108ML, 2008 WL 417675, at *9 (D.R.I. Feb. 13,
2008) (“Viewing these facts in the light most favorable to Plaintiff, [Plaintiff’s supervisor] conceivably ratcheted
up Plaintiff's duties in an effort to cause her to underperform.”); Zimmerman v. Direct Fed. Credit Union, 121 F.
Supp. 2d 133, 144 (D. Mass. 2000), aff’d, 262 F.3d 70 (1st Cir. 2001) (“It could reasonably be found that
Zimmerman was unsuccessfully set up to fail by being assigned three presentations to be delivered to the board of
directors with minimal time to prepare and no management support.”).
6 See Docket No. 125 at p. 111.
5

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pretextual, provided the plaintiff-employee can make a preliminary showing that others
similarly situated ... in all relevant respects were treated [more advantageously] by the
employer.’” Aly, 711 F.3d at 46 (citing Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 43–44 (1st
Cir.2001)). The evidence of disparate treatment in this case may have caused the jury to
reasonably infer that defendants’ claims that Gonzalez’s lackluster performance resulted in the
“elimination” of her Level 17 position were in fact pretextual and not worthy of credence.
Second, the court finds that defendants’ relentless denials that Gonzalez was “demoted”
despite evidence to the contrary support the premise that they had something to hide. In order
to give rise to an inference of pretext, the First Circuit has consistently held that “[w]eaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in [defendant’s] proffer can
do the trick … .” Collazo-Rosado v. Univ. of Puerto Rico, 765 F.3d 86, 93 (1st Cir. 2014) (internal
citations and quotation marks omitted). For example, Human Resources Director Adames
denied that Plaintiff was “demoted” on at least three occasions during trial, see Docket No. 125
at pp. 50, 56, 65, despite being shown the defendants’ Answer to the Complaint admitting
Plaintiff’s allegations that she was demoted. See id. at p. 71; Dockets No. 1, 13 at ¶¶93-96. On
several occasions, co-defendant Kim Perez also refused to testify that Plaintiff was “demoted,”
instead opting to insist that Gonzalez’s position was “eliminated” or that she was “transferred”
to a Level 15 position. See Docket 123 at p. 11; Docket No. 155 at pp. 110-11; Docket No. 153 at
pp. 3-4. This despite being shown a document from Elizabeth Rios (“Rios”), an employee of
Abbott’s Talent Acquisition group, that stated that Gonzalez had been demoted on March of
2013. See Docket No. 153 at pp. 4-5. But the nail on that coffin was hammered down by Abbott’s
Senior Talent Acquisition Manager, Taisgali Mendez (“Mendez”), who testified that the
document in question was prepared by a careful and competent employee under her
supervision, namely, Rios; that it stated that Plaintiff suffered a “demotion” on March 18, 2013;

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and, that Abbott’s Human Resources Department provided the information contained in this
document. See Docket No. 148 at pp. 10-12. In other words, Adames and Kim Perez were both
contradicted by both their own co-worker and the documentary evidence.
As it stems from the testimonies on record, Adames and Kim Perez were members of
Abbott’s top management team and were both closely involved with the decision-making
processes that brought this case to court. The demeanor of both of these witnesses during these
particular lines of questions was evasive and haughty, as well as stubborn in the face of business
documents. “[T]the jury could well have found [their] testimony at trial evasive, in conflict with
other evidence, and lacking credibility.” United States v. Nichols, 820 F.2d 508, 512 (1st Cir.
1987). “The jury can conclude that an employer who fabricates a false explanation has
something to hide; that ‘something’ may well be discriminatory intent.” Aka v. Washington
Hosp. Ctr., 156 F.3d 1284, 1293 (D.C. Cir. 1998). “If the jury can infer that the employer’s
explanation is not only a mistaken one in terms of the facts, but a lie, that should provide even
stronger evidence of discrimination.” Id.; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
511 (1993) (“The factfinder's disbelief of the reasons put forward by the defendant (particularly
if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimination.”). In light of the foregoing, it is no
wonder why the jury disregarded defendants’ theory.
In the alternative, defendants state that “even if the March 2013 adjustment
constitutes an adverse action, it was part of the November 2010 restructuring that
resulted in the elimination of Plaintiff’s Level 18 HCP Institutional Sales Manager position,
which she accepted and is time-barred.” Docket No. 163 at p. 4 (emphasis ours). In response,
Plaintiff pointed out in her opposition that this so-called “readjustment,” “was never mentioned

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during trial.” See Docket No. 170 at p. 7 n. 18. And because it is a theory raised for the first time
in their Rule 50(b) motion, Plaintiff argues it must be deemed waived. See id. The court agrees.
In contrast to what defendants posit in their post-judgment Rule 50(b) motion, the court
notes that during their first Rule 50(a), counsel for defendants stated: “[f]irst of all, we gotta
make clear that everything that happened before January 1, 2013, this Court has already
ruled that is time barred.” Docket No. 155 at p. 6 (emphasis ours). The so-called “adjustment”
to Plaintiff’s position took place in March of 2013, two months after the cut-off date defendants’
counsel deemed was “clear.” That is one reason the court finds that defendants’ time-barred
argument holds no water.
The court also finds that this argument is unavailing for the reasons Plaintiff state.
During defendants’ second Rule 50(a) motion at the close of evidence, defendants’ counsel
simply stated that Plaintiff failed to prove that the elimination of her HCP Institutional
Marketing Manager position in March of 2013 “was pretextual,” and, essentially, that the
functions of her position were eliminated at Plaintiff’s request. See Docket No. 152 at p. 6. The
record shows that prior to the renewed Rule 50(b) motion, defendants never argued that the
“adjustment” of March of 2013 was “part of” the Reorganization, or that this claim was time
barred.
“A Rule 50(b) motion for judgment as a matter of law is ‘bounded by the movant’s earlier
Rule 50(a) motion.’” Cox v. Massachusetts Dep't of Correction, No. CV 13-10379-FDS, 2018 WL
1586019, at *3 (D. Mass. Mar. 31, 2018) (citing Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008).
“The movant cannot use such a motion as a vehicle to introduce a legal theory not distinctly
articulated in its close-of-evidence motion for a directed verdict.” Monteagudo v. Asociacion de
Empleados del Estado Libre Asociado de Puerto Rico, 554 F.3d 164, 171 (1st Cir. 2009) (citing

Civil No. 14-1620(PG)

Page 16

Correa v. Hosp. San Francisco, 69 F.3d 1184, 1196 (1st Cir.1995)). See also Costa-Urena v.
Segarra, 590 F.3d 18, 26 n.4 (1st Cir. 2009) (“It is well-established that arguments not made in
a motion for judgment as a matter of law under Rule 50(a) cannot then be advanced in a
renewed motion for judgment as a matter of law under Rule 50(b).”). Pursuant to the relevant
caselaw, the court must find that defendants waived this argument as grounds for judgment
under Rule 50(b). 7
At any rate, the record belies defendants’ new legal theory insofar as the Company’s
Human Resources Director, Adames, testified that the elimination of Gonzalez’s HCP
Institutional Manager (Level 17) position was not the result of a reorganization:
Q. And the elimination of the position 17, okay, in March
2013, was not as a result of a reorganization; would that be
correct?
A. No.
Testimony of Luz Miriam Adames, Docket No. 125 at p. 58.

In their reply, defendants justify their omission complaining that the undersigned cut them short, reason for
which they “cannot be faulted for any alleged failure to provide more details since the Court foreclosed the
opportunity to make their arguments with any specificity.” Docket No. 177 at p. 3 n.1. In support of their argument,
defendants cite Blockel v. J.C. Penny Co., Inc., 337 F.3d 17, 25 (1st Cir. 2003). In Blockel, the First Circuit held
that defendant did not waive its arguments due to lack of specificity in its Rule 50(a) motion brought at close of
evidence because the motion was cut short by the district judge’s pronouncement that motion was considered filed
and denied. However, the exchange between counsel and the court was literally four lines. Id. at 25 n.2. Here,
defendants argued their Rule 50(a) motions at the close of Plaintiff’s case in chief and at the close of evidence. In
stark contrast to Blockel, their arguments are compiled in a combined total of fourteen pages of transcript. See
Docket No. 155 at pp. 4-13; Docket No. 152 at pp. 4-8. Therefore, this court finds that the case they cite in support
of their argument is clearly inapposite because the facts are not even remotely analogous. Nonetheless, the court
finds Blockel relevant for its holding that “it is incumbent upon a party to enunciate the specific basis for a motion
for judgment as a matter of law.” Blockel, 337 F.3d at 25. Defendants’ failure to thoroughly argue their Rule 50(a)
motion can only be attributed to their three attorneys. “[A] client is bound by the mistakes of his chosen counsel.”
Rosado-Rios v. Vazquez-Collazo, No. 14-1820 (PG), 2016 WL 2733122, at *4 (D.P.R. May 10, 2016) (citing
Miranda-Lopez v. Figueroa-Sancha, 943 F. Supp. 2d 276, 279 (D.P.R. 2013)). “This case is a shining example of
the oft-stated precept that ‘[t]he law ministers to the vigilant not to those who sleep upon perceptible rights.’”
Alamo-Hornedo v. Puig, 745 F.3d 578, 582-83 (1st Cir. 2014) (citing Puleio v. Vose, 830 F.2d 1197, 1203 (1st Cir.
1987)).
7

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Page 17

After careful review of the motion, the record and the applicable caselaw, the court
agrees with Plaintiff that defendants did not meet their burden in showing that the evidence
presented at trial, taken in the light most favorable to Gonzalez, is so overwhelmingly
inconsistent with the verdict that no reasonable jury could come to the conclusion that
defendants discriminated against Plaintiff based on her age when she was demoted in March
of 2013. The Rule 50(b) motion is thus DENIED as to the age discrimination (demotion) claim.
2. Retaliation Claims
Plaintiff filed retaliation claims under both ADEA and Law No. 115. In their Rule 50(b)
motion, defendants argue that no reasonable jury could have found that defendants retaliated
against Plaintiff for engaging in protected conduct.
“In addition to prohibiting age discrimination, the ADEA also protects individuals who
invoke

the

statute’s

protections.”

Ramirez

Rodriguez

v.

Boehringer

Ingelheim

Pharmaceuticals, Inc., 425 F.3d 67, 84 (1st Cir.2005) (citing 29 U.S.C. § 623(d)). “Puerto Rico’s
anti-retaliation statute – Law 115 – is largely ‘symmetrical in scope,’ and has ‘parallel
evidentiary mechanisms,’ to the anti-retaliation provisions in … ADEA.” Rivera-Rivera v.
Medina & Medina, Inc., 898 F.3d 77, 97 (1st Cir. 2018) (internal citations omitted). “Law 115
also prohibits retaliation for seeking benefits with the State Insurance Fund.” Rios v.
Municipality of Guaynabo, No. CV 14-1703 (MEL), 2017 WL 3412083, at *3 n.5 (D.P.R. Aug. 9,
2017) (citing Santana-Colon v. Houghton Mifflin Harcout Pub. Co., 81 F. Supp. 3d 129, 136
(D.P.R. 2014)).
Plaintiff’s retaliation claims stem from events that followed her demotion. In March of
2013, when Perez and Adames notified Plaintiff of the downgrade in the position she occupied,
Plaintiff asked Kim Perez if she could be named Senior Product Manager (Level 16) instead of

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Page 18

Product Manager (Level 15). According to Plaintiff, Perez responded that no such position was
available at the time. See Docket No. 129 at p. 21. Plaintiff testified that she did not agree with
Perez’s response because “Senior” titles are simply tied to an employee’s years of experience.
See id. at p. 21. On the other hand, Kim Perez’s position was that the upgrade to “Senior” was
based on qualifications and experience; and in addition, the senior manager had to supervise
other employees. See Docket No. 153 at p. 8.
After receiving these news, the Company doctor referred Gonzalez to the SIF, where she
was placed on rest from March 19, 2013 to July 10, 2013. See Docket No. 130 at pp. 8-9. Shortly
after reporting to the SIF, Abbott sent Plaintiff a certified letter dated April 1st, 2013, informing
her that if she did not report to work by April 8th, the Company would terminate her
employment. See Docket No. 125 at pp. 66-67; Docket No. 130 at pp. 8-9. Out of fear that she
would lose her job, Plaintiff returned to work before the mandated rest period was over. See
Docket No. 130 at pp. 8-9.
On September 3, 2013, Kim Perez met with Gonzalez to discuss her midyear review.
After a lengthy explanation of the report, Gonzalez testified that she understood that she was
“on track” in terms of covering the expectations of her position up to that date. See id. at pp. 1112. Approximately a month later, on October 15, 2013, Gonzalez’s attorneys sent a letter to Kim
Perez notifying her that Plaintiff would sue her for age discrimination. See Docket No. 123 at
pp. 13-14; Plaintiff’s Exhibit 8. Matt Harris (“Harris”), Abbott’s General Manager in Puerto Rico
and the Caribbean at the time, 8 also received a copy of the letter. See Docket No. 153 at p. 20.
On October 29, 2013, Plaintiff then filed an administrative claim of age discrimination before
the Anti-Discrimination Unit (“ADU”) at the Department of Labor. See Docket No. 130 at p.

8

See Matt Harris Testimony, Docket No. 153 at pp. 38-39.

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Page 19

30. On October 31, 2013, Gonzalez also sent Kim Perez an email complaining about being
sidelined from some meetings and not having access to presentations. See Docket No. 123 at
pp. 18-19; Plaintiff’s Exhibit 10.
Pursuant to the Company’s policies, every employee complaint must be investigated. See
Docket No. 126 at p. 15. In fact, pursuant to this policy, the Company had investigated an
internal complaint for workplace harassment that Gonzalez had lodged against Kim Perez in
2011. See id. at p. 15. Despite the policy, Adames testified that an investigation was not
conducted at Abbott subsequent to Gonzalez’s age discrimination claim at the ADU. See id. at
pp. 14, 17. Kim Perez did not order an investigation of Plaintiff’s complaints either. See Docket
No. 123 at pp. 16, 20. In contrast, Harris testified that Abbott’s Legal department in Chicago
investigated Plaintiff’s claims. See Docket No. 153 at p. 41. Harris sent a letter to Gonzalez on
November 20, 2013 – just twenty (20) days after the administrative claim was filed –
categorically denying that Abbott had engaged in any discriminatory or retaliatory practices.
See id. at pp. 63-66; Plaintiff’s Exhibit 11. Yet, Harris admitted that he was not part of this
investigation and was unaware of its conclusions (of fact and law). See Docket No. 153 at pp.
63-66.
Two weeks after filing her administrative claim at the ADU, Plaintiff found out through
a colleague at Abbott that a Senior Product Manager position had become available. See Docket
No. 130 at pp. 30-31. On November 18, 2013, Plaintiff sent a letter to Harris informing him of
her interest in the position and stating the Kim Perez’s failure to inform her of this vacancy
constituted retaliation against her for having complained of discrimination. See Plaintiff’s
Exhibit 30. Harris responded on November 20, 2013, that the position would be posted soon
so both internal and external candidates could apply. See Docket No. 130 at pp. 31-32.

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Page 20

According to Kim Perez, the position had not been approved by Corporate until
November of 2013. See Docket No. 155 at p. 93. However, it was Mendez’s testimony that Harris
had already asked her to post the Senior Product Manager position on LinkedIn back in August
28, 2013, and that the hiring manager for that position was Kim Perez. See Docket No. 148 at
p. 15. Mendez also testified that Harris sent her the requisition to post the Senior Product
Manager on November 22, 2013, six (6) days after Plaintiff emailed Harris. See id. at p. 17. In
the email Harris sent Mendez, he also stated: “[i]t seems like we have a good external
candidate slate, and I would like to have all interviews completed by December 20th.” Docket
No. 153 at p. 24 (emphasis ours); Plaintiff’s Exhibit 12. According to Mendez, she understood
that they had a good group of external candidates for the position from the resumes they had
received. See Docket No. 148 at pp. 19-20. However, it was Plaintiff’s testimony that Harris’
email was not aligned with the Company’s policy to give preference to Abbott employees when
filling vacancies. See Docket No. 130 at p. 45. According to the testimonies heard, the
Company’s policy was to offer promotions to qualified Abbott employees before external
candidates. See Adames, Docket No. 125 at pp. 37-38; Gonzalez, Docket No. 130 at p. 32;
Harris, Docket No. 153 at p. 7.
Mendez also testified that she became aware of Gonzalez’s claim of age discrimination
during conversations about the selection process that she had with Kim Perez as the position’s
hiring manager. See Docket No. 148 at pp. 17-18. Mendez agreed that this information was
irrelevant for purposes of the recruitment process. See id. at pp. 18-19. Likewise, Adames also
admitted that she discussed Gonzalez’s age discrimination claim with Perez during the month
of December when the selection process was taking place. See Docket No. 125 at p. 99. Adames
also discussed Gonzalez’s age discrimination claim with Harris and Mendez between October
and December of 2013. See Docket No. 126 at p. 25. Nevertheless, Adames admitted that she

Civil No. 14-1620(PG)

Page 21

knew that an employee’s intention to sue the Company for discrimination and/or retaliation
cannot be taken into account when considering said employee as a candidate for promotion.
See id. at p. 12.
On December 9, 2013, Harris, Perez, Adames and Mendez held a meeting to discuss the
selection process for the Senior Product Manager position. Although they discussed the
interview guide they would use for the process, Adames’ notes of the meeting contain no
mention of the business case presentation they would eventually required from the finalists.
See Docket No. 148 at pp. 22-23; Docket No. 125 at p. 105. It also stems from the notes of this
meeting that its attendees decided to set up a meeting with Abbott’s lawyers, even though it
was not standard operating procedure to meet with attorneys when a position had to be filled.
See Docket No. 125 at pp. 105-106.
Kim Perez and Mendez interviewed Plaintiff for the Senior Product Manager position on
or about December 18, 2013. See Docket No. 130 at p. 46. The finalists for the Senior Product
Manager position were Gonzalez and two external candidates, Sandra Figueroa and Glorimar
Molina. See Docket No. 125 at p. 100. Gonzalez became one of three finalists out of 114
applicants. See Docket No. 123 at p. 26. During the course of this process, Kim Perez testified
that she never considered recusing herself from the selection process even though Plaintiff, an
applicant and a finalist, had recently filed charges of age discrimination against her. See id. at
p. 21. Although Plaintiff – an internal candidate – was a finalist for the position, Adames
testified that there was no one “ready now” at Abbott between August 28, 2013 to December
20, 2013 for the Senior Product Manager position. See Docket No. 126 at p. 27.
After the interviews, the finalists were informed that they had to make a presentation to
a panel of judges on the following day, that is, on December 19, 2013. See id. at p. 28. The panel

Civil No. 14-1620(PG)

Page 22

consisted of Mendez, Harris, Kim Perez and Mayra Graulau, a Human Resources Manager at
Abbott. See id. at pp. 25-26. To that effect, Plaintiff testified that it was the first time in thirty
(30) years at Abbott that the Company required presentations from finalists for a position. See
Docket No. 130 at pp. 46-47. According to Kim Perez, it was Mendez’s idea to include a
presentation stage in the selection process in order to find the best candidate. See Docket No.
155 at p. 96. It was a technique that was previously used in Latin America, one of the regions
under Mendez’s responsibility. See id. at p. 96.
Upon notification of this unprecedented requirement, Plaintiff testified that she
understood that she did not have a real opportunity to obtain the promotion. According to
Gonzalez, the process had become a sham intended for her to believe she was actually being
considered, especially when most of the panel judges were already aware of her presentation
skills. See Docket No. 130 at pp. 48-49. Gonzalez testified that she felt humiliated in front of
the other two (2) candidates that had no experience at Abbott, whereas she had demonstrated
her skills for thirty (30) years. As a result, she told the judges that “she was uncomfortable with
the process” and that she was “withdrawing from the presentation process.” Id. at p. 50.
Adames, however, understood that Gonzalez was withdrawing from the whole application
process. See Docket No. 126 at p. 31.
On December 19, 2013, Mendez wrote Gonzalez an email confirming her withdrawal
from the selection process. See Docket No. 130 at p. 51. The following day, Plaintiff responded
expressing her continued interest in the position and explaining her reasons for feeling
uncomfortable with the presentation portion of the evaluation. See id. at pp. 51-52. On that
same day, Mendez replied that they had already chosen another candidate. See id. at p. 52. On

Civil No. 14-1620(PG)

Page 23

December 19, 2013, the day of the presentations, Glorimar Molina 9 was selected for the position
of Senior Product Manager and she was so notified on December 20, 2013. See Docket No. 125
at p. 107. The Company then shut down for the Holidays on December 20, 2013 until January
7, 2014, and Plaintiff went on vacation. See Docket No 153 at p. 75; Docket No. 130 at p. 52.
Accordingly, Plaintiff’s job performance evaluation period for the year 2013 must have ended
on December 20th, the day after the presentations took place. See Docket No. 123 at p. 22.
Upon return from the Holidays in January of 2014, Plaintiff applied to the Regional
Sales Manager (Level 18) position that was posted. See Docket No. 130 at p. 54. Harris was the
hiring manager for this vacancy. See Docket No. 153 at p. 44. A month later, on February 27,
2014, Plaintiff received her performance evaluation for the year 2013, in which she received a
rating of “Partially Achieved” expectations or “PA.” See Docket No. 126 at p. 19. It is a Company
practice that if an Abbott employee obtains a PA in his/her job performance evaluation, the
employee is ineligible for promotion. See Docket No. 153 at p. 46. To that effect, the jury heard
Adames testify that if an employee does not achieve expectations during the Company’s
employee evaluation process, several repercussions may ensue. These include the following: (1)
the employee may not receive salary increases; (2) the employee may require an improvement
plan; (3) the employee’s incentive bonus and merit increase may be impacted; and, (4) the
employee cannot be considered for promotion according to Company “policy.” Docket No. 125
at pp. 17-20, 72-73. Indeed, Plaintiff believed that she received a PA rating in her evaluation so
that she would not qualify for promotion in 2014. See Docket No. 130 at p. 56.
Despite having received a Partially Achieved rating for her performance in 2013, Adames
testified that Gonzalez was “considered” for the Regional Sales Manager (Level 18) position

9

In 2015, Glorimar Molina was thirty-three (33) years old and Plaintiff was fifty-five (55) years of age. See Docket
No. 126 at p. 3. A significant twenty-two (22) year difference.

Civil No. 14-1620(PG)

Page 24

that she applied to in January of 2014. See Docket No. 125 at p. 73. Then upon further
questioning, Adames changed her tune and stated that Gonzalez was “evaluated” for said
position. See id. at p. 74. The court then questioned Adames on the subject, to which she
answered that Gonzalez had just “submitted her name for the position.” Id. at p. 75.
Subsequently, Adames testified that Gonzalez was not considered for the Regional Sales
Manager position (Level 18) posted in January of 2014 because Plaintiff failed to meet the
minimum expectations of several key job competencies during the “last three years,” per an
email Harris sent to Gonzalez. See id. at p. 77; Docket No. 153 at p. 52. Despite Adames’
testimony, in the Answers to Interrogatories that Abbott submitted during the course of
discovery in this case and that Adames signed (Docket No. 125 at p. 42), Gonzalez and Francisco
Vargas (“Vargas”) were listed as employees who were “considered” for the position of Regional
Sales Manager despite the fact that both had obtained a PA rating in their 2013 performance
evaluations. See Docket No. 125 at pp. 77-78.
The court notes, however, Plaintiff was a finalist for promotion just one month before
applying to the Regional Sales Manager position, for which she was deemed unqualified. At the
time Plaintiff became a finalist for the Senior Product Manager position in December of 2013,
Kim Perez already knew that Gonzalez’s performance warranted a PA rating. See Docket No.
153 at p. 28. But Kim Perez insisted that she did not take Gonzalez’s 2013 performance into
account during the selection process for the Senior Product Manager position because the
Company’s “recruiting policy” requires that only the prior year’s performance rating be taken
into account, see Docket No. 123 at p. 23; Docket No. 155 at pp. 95-96, and Gonzalez had
obtained an Achieved Expectations rating in 2012. See Docket No. 155 at pp. 62-63. In fact,
Kim Perez testified that she did not share her concerns regarding Plaintiff’s current
performance with the other members of the selection committee. See Docket No. 123 at p. 23.

Civil No. 14-1620(PG)

Page 25

Plaintiff disagreed with her evaluation rating and in March of 2014, she requested that
the Human Resources department perform an investigation of her results. See Docket No. 130
at pp. 56, 61. Gonzalez also requested to meet with Kim Perez and Harris to discuss her
evaluation, and in order to challenge it, she asked that her emails from 2013 be reinstated in
her account. See id. at pp. 58-60. According to Plaintiff, the emails contained evidence that she
had achieved the goals of her position and completed her assigned projects. See id. at pp. 5960. However, the Human Resources department responded that the emails could not be
retrieved because they had already been deleted. See id. at p. 60.
Plaintiff filed a claim of retaliation before the Equal Employment Opportunity
Commission (“EEOC”), 10 and while Plaintiff was attempting to challenge her evaluation,
Glamary Perez 11 was appointed to the Regional Sales Manager position. See Docket No. 125 at
p. 78. Plaintiff was not interviewed for said post. See Docket No. 130 at p. 54. Although the
process began as a competitive one, the Company decided to directly appoint Glamary Perez to
the position. See Docket No. 126 at p. 4. Consequently, on March 11, 2014, Gonzalez sent an
email to Harris requesting that she be appointed Senior District Manager, 12 which was the
position Glamary Perez would leave vacant upon promotion. See Docket No. 125 at pp. 78-79;
Docket No. 130 at p. 62; Plaintiff’s Exhibit 20. On March 19, 2014, Harris denied her request
responding that she had consistently failed to meet Abbott’s minimum expectations in several
areas for the last three years. See Docket No. 130 at p. 67; Docket No. 153 at p. 46; Plaintiff’s

See Docket No. 153 at p. 41.
In 2015, Glamary Perez was forty-one (41) years old and Plaintiff was fifty-five (55) years of age. See Docket No.
126 at pp. 3-4. That is a significant fourteen (14) year difference.
12 Plaintiff had previously occupied the position of District Manager (Level 16) for several years, see Docket No.
129 at p. 8, Docket No. 130 at pp. 53-54; and, she had achieved expectations as an employee in that position, see
Docket No. 125 at p. 79.
10
11

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Page 26

Exhibit 21. Instead, Harris offered Vickybel Rosario 13 the position of Senior District Manager
left vacant by Glamary Perez. See Docket No. 125 at p. 79.
In his email response of March 19th, Harris never told Plaintiff that the Senior District
Manager position had already been filled. See Docket No. 153 at pp. 94-95. However, there is
evidence on record that by March 4, 2014, a week before Gonzalez’s email to Harris, the latter
had written an email to Mendez and Adames stating that he wanted to discuss the “backfill
succession caused by Glamary’s promotion,” that is, the “Vicky move,” which he thought should
to be taken care of before actually announcing Glamary Perez’s promotion. See id. at pp. 9598; Plaintiff’s Exhibit 19. Hence, the Senior District Manager vacancy was never posted, and
Plaintiff could never apply to it. See Docket No. 130 at p. 67.
In March of 2014, Rocio Oliver, one of the other employees affected by the
Reorganization, was offered the position of Senior District Manager (Level 16) for which she
did not have to compete. See Docket No. 126 at pp. 48, 50, 59. In addition, Dennis Torres, the
other employee affected by the Reorganization, was promoted to Distribution Manager (Level
16) on March 17, 2014. See id. at pp. 52, 60-61; Docket No. 153 at p. 102. Plaintiff, who was
their supervisor before the Reorganization, remained at her Level 15 position.
In April of 2014, the Company finalized a document called the Talent Management
Review (“TMR”) to be sent to corporate. See Docket No. 153 at p. 122; Plaintiff’s Exhibit 39.
The TMR “is a formal process used to discuss leadership capabilities, strengths and gaps, create
an action plan to ensure talent needed will be available to achieve business long range plans. It
is the process of identifying and developing individuals with the potential to compete for
defined leadership role.” Docket No. 153 at p. 112. Harris and his immediate staff, including
Kim Perez, prepared the TMR. See id. at p. 113. In the document, Gonzalez had no
In 2015, Vickybel Rosario was forty-three (43) years old and Plaintiff was fifty-five (55) years of age. See Docket
No. 126 at pp. 3, 5. That is a significant twelve (12) year difference.
13

Civil No. 14-1620(PG)

Page 27

developmental actions listed; the TMR just said “N/A” or “not available.” See id. at p. 122;
Plaintiff’s Exhibit 39. Moreover, the document reflected that there was no promotion timing
for Gonzalez or potential next moves. See Docket No. 153 at p. 123; Docket No. 125 at pp. 32,
38; Plaintiff’s Exhibit 39. According to Adames, this information was not included for Plaintiff
because she had obtained a PA in her performance evaluation for 2013. See Docket No. 125 at
p. 40. However, Francisco Vargas, 14 another Abbott employee who obtained a PA for his
performance in 2013, had promotion timing and potential next moves listed for him in the
TMR. See Docket No. 125 at pp. 40-41. In addition, William Palermo, another employee that
needed to improve his performance, also had developmental actions listed in the TMR. See
Docket No. 153 at pp. 132-133.
According to Harris, it was typical for every employee to have developmental actions in
the TMR. See id. at p. 118. Later on in his testimony though, he testified that the developmental
actions for employees holding Level 15 positions are not included in the TMR. See Docket No.
152 at p. 120. However, Francisco Vargas and Wilma Diaz, 15 who were also in Level 15 positions,
had developmental actions and/or potential next moves listed for them in the TMR. See Docket
No. 153 at pp. 128-129.
Finally, in May of 2014, Kim Perez became the General Manager at Abbott upon Harris’
departure. See Docket No. 130 at p. 68. Marisabel Aponte then became Plaintiff’s supervisor in
July of 2014. See id. at p. 68. Gonzalez obtained an AE in her performance evaluation for the
years 2014 and 2015 under Aponte’s supervision. See id. at pp. 69-70.

14

In 2015, Francisco Vargas was forty-three (43) years old and Plaintiff was fifty-five (55) years of age. See Docket
No. 153 at pp. 101-102. That is a significant twelve (12) year difference.
15

In 2015, Wilma Diaz was fifty-six (56) years old and had held a Level 15 position for the last twelve years, that
is, since 2004. See Docket No. 153 at p. 103.

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Page 28

a. Failure to Promote
Senior Product Manager Position
In their motion for judgment as a matter of law, defendants argue that Plaintiff was not
promoted for the Senior Product Manager position because, unlike the other candidates, she
failed to give the presentation that was required and voluntarily withdrew from the selection
process. See Docket No. 163 at pp. 12-14. In her opposition, Plaintiff argues that the evidence
justified the jury’s finding that her withdrawal from the presentation “was reasonable in light
of the context in which it took place.” Docket No. 170 at p. 27. According to Plaintiff, the
following factors contributed to this context: (1) the search for external candidates before
making a vacancy announcement internally; (2) deviation from Company policy of favoring
qualified internal candidates; (3) Harris’ satisfaction with the “external candidate slate” before
she was interviewed for the position; (4) panel of judges consisting of potential targets of
litigation by Gonzalez; (5) selection committee’s discussions about Plaintiff’s intention to sue
during selection process; (6) discussion of selection process with attorneys; (7) requiring a case
presentation for the first time; (8) not investigating her 2013 claims of discrimination and
retaliation pursuant to Company policy; and, (9) Kim Perez’s incredible assertions that she did
not consider Plaintiff’s 2013 performance during selection process. See id.
The circumstances that comprise the overall factual picture of this case and enabled to
jury to reach its verdict will now be discussed.
As set forth supra, before becoming a finalist for the Senior Product Manager position
in December of 2013, Plaintiff had asked Kim Perez in March to be appointed to this position.
At the time, Perez responded that such position was unavailable, not that Plaintiff wasn’t
qualified for it. Only five (5) months later, a vacancy for this position was posted on LinkedIn

Civil No. 14-1620(PG)

Page 29

in August of 2013. Yet, Plaintiff found out through a colleague that the Company was looking
externally to fill a vacancy for the position she was interested in because Kim Perez did not tell
her anything about it when they met to discuss Plaintiff’s midyear review in September of 2013.
See Docket No. 130 at p. 39. Plaintiff confronted Harris via letter with this information claiming
that the failure to inform her of this opening constituted retaliation since at the time, she had
already filed her age discrimination claims at the ADU. Harris responded that the Company
had not engaged in discrimination or retaliation against her even though he testified not
knowing the results of the investigation the Company’s legal department was conducting.
Therefore, his statements in his response letter were premature and unsupported, to say the
least.
And with regards to this investigation, Harris’ testimony to that effect was contradicted
by Mendez, who testified that the Human Resources department did not conduct an
investigation of Gonzalez’s claims. Kim Perez also testified during trial that she did not order
an investigation of Plaintiff’s claims against her, which also evinces a deviation from the
Company’s policy of investigating all employee complaints. The First Circuit recognizes that
“pretext can be demonstrated through a showing that an employer has deviated inexplicably
from one of its standard business practices.” Kouvchinov v. Parametric Tech. Corp., 537 F.3d
62, 68 (1st Cir. 2008). The jury in this case may have reasonably found this omission to be
evidence of pretext.
After receiving Gonzalez’s letter, Harris finally ordered the vacancy be announced
internally. His email request to Mendez at Human Resources stated that he was already pleased
with the “external candidate slate.” At the time of this email though, he had not yet reviewed
Plaintiff’s application or that of any other Abbott employee. In other words, the battle was lost
even before it was fought.

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Page 30

During defendants’ case in chief, Harris tried to explain the timing of the internal
announcement asserting that he had only obtained “budgetary approval” for the position in
November of 2013. See Docket No. 153 at p. 43. However, the jury could have reasonably
disbelieved him and found that the intention to announce the position internally never existed
until Plaintiff complained about the omission. “[T]he irregular timing could have suggested to
the jury that a cover-up was afoot.” Muñoz v. Sociedad Española De Auxilio Mutuo y
Beneficiencia De Puerto Rico, 671 F.3d 49, 57 (1st Cir. 2012). Viewing the facts in the light most
favorable to the verdict, the jury plausibly inferred that the Senior Product Manager had not
been announced to prevent Plaintiff from applying in retaliation for complaining of age
discrimination. The court is not permitted to second-guess the jury's assessment.
To cinch the matter, the jury also heard testimony that the members of the selection
committee spoke about Plaintiff’s discrimination claim among themselves during the hiring
process despite admitting that this information should be irrelevant for promotion purposes.
Notwithstanding, they decided to meet with the Company’s attorneys before interviewing the
candidates, which Adames acknowledged was out of the ordinary. The jury could also have
found that the timing of this legal consultation was suggestive of the fact that Plaintiff’s claim
against defendants was an important consideration in the selection process.
Subsequently, Plaintiff was interviewed by both Mendez and Kim Perez. The latter’s
testimony with regards to this process may have been received with skepticism by the jury
members. First of all, although Kim Perez was the object of Plaintiff’s discrimination claims,
she testified that she did not recuse herself from the selection committee because she was the
hiring manager for the position. Second, Kim Perez testified that she did not consider what she
thought was Plaintiff’s “deficient” job performance during the current year because according
to Company policy, she could only take into account the employee’s performance during the

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prior year. The jury in this case could have found Kim Perez’s assertions under oath to be hard
to believe deeming it an almost unsurmountable task to both remain impartial, as well as put
aside Plaintiff’s subpar performance during the most recent months. Yet, she claimed being
able to do both.
“[P]roof that the defendant’s explanation is unworthy of credence is … one form of
circumstantial evidence that is probative of intentional discrimination.” Acevedo-Parrilla v.
Novartis Ex-Lax, Inc., 696 F.3d 128, 141 (1st Cir. 2012) (citing Williams v. Raytheon Co., 220
F.3d 16, 19 (1st Cir.2000)). “An explanation is unworthy of credence when is [sic] suffers from
‘weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions ...’ such that a
factfinder could ‘infer that the employer did not act for the asserted non-discriminatory
reasons.’” Hubbard v. Tyco Integrated Cable Sys., Inc., 985 F. Supp. 2d 207, 228–29 (D.N.H.
2013) (citing Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir.
2000)). A reasonable jury could have easily determined that her explanations for remaining in
the selection committee and for her approach to the evaluation process were simply
implausible, and thus, a pretext for retaliation.
During the course of the selection process, Plaintiff became a finalist along with two
other external candidates and was asked to make a case presentation before a panel of judges.
To Gonzalez, an Abbott employee for over three decades, this additional requirement was
unheard of. What is more, Plaintiff testified that most panel judges had seen her make
presentations during the course of her employment as Product Manager. Therefore, they were
familiar with her skills. See Docket No. 130 at p. 49. Plaintiff also knew that at least two of the
judges, namely, Harris and Kim Perez, were aware of her formal claims of discrimination.
Feeling uncomfortable and humiliated, Plaintiff decided to withdraw from the presentation
phase of the selection process because she believed the process was a sham.

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It is uncontested that the request for a business case presentation was a departure from
the ordinary selection process. This may have led the jury to conclude that defendants’ real
objective was to evaluate the external candidates’ presentation skills because those were
unknown to the judges. Such a conclusion supports Plaintiff’s inference that she was not being
truly considered for promotion. As a result, a reasonable jury could have found that her
withdrawal from the presentation phase of the selection process was warranted since the
overwhelming circumstantial evidence showed that her effort and continued participation
would have been futile, a finding that is not unheard of in the universe of holdings in
employment cases of several other courts. See Miller v. Gruenberg, No. 1:16-CV-856, 2017 WL
1227935, at *6–7 (E.D. Va. Mar. 31, 2017), aff’d as modified, 699 F. App’x 204 (4th Cir. 2017),
cert. denied, 138 S. Ct. 2579 (2018) (withdrawal of job application does not bar a plaintiff’s
discrimination claim of non-selection where there is evidence the plaintiff was coerced into
withdrawing from application process); Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d
784 (7th Cir. 2015) (physician’s withdrawal of his application did not bar his race
discrimination claims against hospital where chief of staff’s warning indicated that it would
have been futile for physician to maintain his application); Qu v. Bd. of Regents of Univ. of
Minnesota, No. CIV. 08-1843 RHK/JSM, 2009 WL 2900334, at *7 (D. Minn. Sept. 2,
2009)(the withdrawal of an employment application might not undermine a plaintiff’s prima
facie case if his application would have been futile); Lowery v. Circuit City Stores, Inc., 158 F.3d
742, 762–63 (4th Cir.1998), rev’d on other grounds, 527 U.S. 1031 (1999) (finding that
voluntary withdrawal does not show prima facie case of discrimination where there is no
indication “it was futile to apply or that [the employer] prevented her from applying”). Pursuant
to the foregoing, a reasonable jury could have found that defendants’ purported non-retaliatory
reason for not selecting her was pretextual.

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Defendants’ alternative argument in support of their decision not to promote Plaintiff
for the Senior Product Manager position is that Glorimar Molina, one of the external
candidates, was more qualified than Gonzalez. See Docket No. 163 at pp. 12-14. In their motion,
defendants contend that Molina had a degree in business administration and a master’s degree
in marketing, versus Plaintiff, who did not have any formal education in business
administration or any post graduate degrees. See id. at p. 13. In addition, they claim that Molina
had more relevant work experience, particularly in the Caribbean market. Id. In her opposition,
Plaintiff first argues that she should have been offered the position pursuant to the Company’s
policy of favoring qualified internal employees when filling vacancies. In that respect, Plaintiff
argues that defendants deviated once again from established policies in retaliation for having
engaged in protected conduct, and instead, selected Glorimar Molina, who is substantially
younger than Gonzalez by twenty-two (22) years. See Docket No. 170 at pp. 12-13.
“When an employer claims to have hired or promoted one person over another on the
basis of qualifications, the question is not which of the aspirants was better qualified, but,
rather, whether the employer’s stated reasons for selecting one over the other were pretextual.”
Rathbun v. Autozone, Inc., 361 F.3d 62, 74 (1st Cir. 2004). “In line with the business judgment
rule, ‘[c]ourts may not sit as super personnel departments, assessing the merits—or even the
rationality—of employers’ nondiscriminatory business decisions.’” Deslauriers v. Napolitano,
738 F. Supp. 2d 162, 179 (D. Me. 2010) (citing Mesnick v. General Elec. Co., 950 F.2d 816, 825
(1st Cir.1991)). “Qualifications are notoriously hard to judge and … more must be shown than
that the employer made an unwise personnel decision by promoting ‘X’ ahead of ‘Y.’” Rathbun,
361 F.3d at 74. Nevertheless, “there may be situations in which the difference in qualifications
is so stark as to support an inference of pretext.” Id. at 75. “Or, perhaps, there may be situations
in which a great number of individual employment decisions, each of which arguably can be

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justified as a business judgment, may in cumulation present so one-sided a picture as to raise
an inference of pretext.” Id.
With regards to the candidates’ differences in education, the court notes that Plaintiff’s
degrees, or lack thereof, had not previously prevented Abbott from promoting her to a Level
18 position, in which she supervised twenty-eight employees, including other supervisors.
Considering this information, the jury may have reasonably afforded little credit to this
purported non-retaliatory reason for not having selected Plaintiff for a Level 16 position. The
jury may have also discounted defendants’ grounds for their choice because Molina only had
eleven years of total work experience vis-à-vis Plaintiff, who had almost thirty years of
experience at Abbott. Therefore, this case is definitely not one in which the successful
applicant’s qualifications are so obviously superior to those of Plaintiff as to undermine the
legitimacy of her claims. And in combination with both the age difference and the suspicious
circumstances surrounding the selection process that were previously-discussed, the jury may
have hardly been persuaded by defendants’ assertions that Molina possessed superior
qualifications. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (“The factfinder’s
disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied
by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to
show intentional discrimination.”).
Defendants’ “choice between the three candidates was highly discretionary but:
‘Discretion may be exercised in ways which are discriminatory or retaliatory.’” Deslauriers v.
Chertoff, No. CIV. 07-184-B-W, 2009 WL 1032854, at *31 (D. Me. Apr. 16, 2009), aff’d, 640 F.
Supp. 2d 104 (D. Me. 2009) (citing DeCaire v. Mukasey, 530 F.3d 1, 20 (1st Cir. 2008)).
Moreover, “the temporal proximity between the [administrative] complaint and the decision
not to select [plaintiff] is a significant consideration.” Chertoff, 2009 WL 1032854 at *31

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(citations omitted). See also Mesnick, 950 F.2d at 828 (finding that evidence of temporal
proximity of an employee’s protected activity to an employer’s adverse action, inter alia, is one
source of circumstantial evidence that, theoretically, can demonstrate retaliation). In sum, the
totality of the circumstances in this case may have led a reasonable jury to conclude that
defendants’ non-retaliatory reasons to not promote Gonzalez to the Senior Product Manager
position were merely a pretext for retaliation after complaining of age discrimination.
Regional Sales Manager and Senior District Manager
Defendants also argue that Plaintiff was not qualified for the Regional Sales Manager
and the Senior District Manager positions for which she was not selected in early 2014. See
Docket No. 163 at pp. 15-17. According to defendants, Plaintiff was rendered ineligible for
promotion because of the “Partially Achieved” expectations rating she received in her
evaluation. Moreover, defendants argued that Plaintiff lacked the relevant experience for the
job both in the Caribbean region and with the distributors sector. In contrast, Glamary Perez,
the selected candidate, had a master’s degree in business administration and an excellent track
record in sales at Abbott.
In her opposition, Plaintiff notes the inconsistencies regarding whether or not she was
“considered” for the position. See Docket No. 170 at p. 16. On the one hand, there is evidence
on record, such as Abbott’s Answers to Interrogatories, that Plaintiff was “considered” for the
Regional Sales Manager position despite having received a PA rating. However, Adames’
explanations shifted at trial having first testified that Gonzalez was considered and eventually
denying it. In addition, Plaintiff also points out that Abbott suddenly aborted the competitive
selection process for the position and appointed Glamary Perez, who was fourteen (14) years
younger than Gonzalez and had less experience than her.

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After learning of Glamary Perez’s promotion, Plaintiff requested to be promoted to the
position Glamary would leave vacant, but once again, Plaintiff was denied. According to
defendants in their motion, the Company offered Vickybel Rosario the position because she
was more qualified than Plaintiff, had been identified as a key talent in the TMR process and
unlike Plaintiff, had excellent evaluations. See Docket No. 163 at p. 17. In response, Plaintiff
argues that she was not promoted to this position in retaliation for having engaged in protected
conduct, and points to the events that are temporally proximate to this selection process as
evidence of pretext.
First of all, Gonzalez points out that the Company never informed her that Glamary
Perez was selected to the Regional Sales Manager position. After finding out on her own, she
sent an email to Harris on March 11, 2014 asking if she could be offered Glamary Perez’s Senior
District Manager position, which would become vacant. See Docket No. 130 at p. 62; Plaintiff’s
Exhibit 20. On March 19, 2014, Harris responded that she was not qualified for promotion
having obtained an unsatisfactory rating in her most recent evaluation and informed her that
for the last three years she had demonstrated “several key job competency issues that require
significant improvement.” Plaintiff’s Exhibit 21. Defendants rely on this document to ground
their claim that Plaintiff failed to meet expectations. However, Plaintiff rightfully indicates that
Harris’ assertions therein are mistaken because in at least one of those three years, namely, in
2012, she had obtained an Achieved Expectations rating in her performance evaluation.
Gonzalez also points out that pursuant to the documentary evidence on record, another
much younger Abbott employee, namely, Vickybel Rosario, had already been preselected for
the Senior District Manager position at the time of Harris’ email response. On March 4, 2014,
Harris had written an email to Mendez and Adames requesting to “get aligned” on the matter
of the “backfill succession caused by Glamary’s promotion” before making any public

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announcements. See Plaintiff’s Exhibit 19. According to this email, Vickybel Rosario, who is
twelve (12) years younger than Plaintiff, would be offered the position Glamary left vacant
before announcing Glamary’s promotion. Harris sent this email fifteen (15) days before
responding to Plaintiff. However, Harris stayed mum about these personnel moves in his
response to Plaintiff.
As can be gleaned from the record, Plaintiff was given an unsatisfactory performance
evaluation a month after being selected as a finalist for promotion at the end of 2013. This
precluded her from qualifying for promotion in 2014. According to defendants’ theory,
Gonzalez went on vacation on December 20th, 2013, and when she returned from the Holidays,
she was suddenly not a qualified candidate for promotion and had several competency issues
that needed immediate improvement, as per Harris’ email. And while Plaintiff was attempting
to challenge her 2013 performance evaluation to no avail, the Company swiftly and
surreptitiously preselected two much younger employees to fill two vacancies that Gonzalez
was interested in without having these candidates engage in a competitive process. And
although preselection alone does not violate ADEA when it’s based on qualifications, courts
have found that “preselection is relevant to the employer’s motivations and ‘operates to
discredit the employer’s proffered explanation for its employment decision.’” Napolitano, 738
F. Supp. 2d at 181–82 (citing Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir.1986)).
See also Ham v. Washington Suburban Sanitary Comm’n, 158 Fed.Appx. 457, 470 (4th
Cir.2005) (stating that preselection can support a finding of pretext in conjunction with other
evidence); Coble v. Hot Springs Sch. Dist. No. 6, 682 F.2d 721, 728–29 (8th Cir.1982) (finding
that evidence of preselection discredited the school district’s proffered legitimate
explanation)).

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“[T]he significance of any given act of retaliation will often depend upon the particular
circumstances. Context matters.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69
(2006). From the evidence as a whole, the jury in this case could have reasonably and sensibly
found that defendants’ explanations were less than forthcoming. The cumulative effect of
defendants’ irregularities in the promotional processes, deviations from established policies,
shifting explanations, stealthy personnel moves, contradictions and inconsistencies weighed
heavily in the minds of the jury. See Santiago-Ramos, 217 F.3d at 56 (finding a plaintiff can
establish pretext by showing weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons such that a factfinder could infer
that the employer did not act for the asserted non-discriminatory reasons). All told, the
evidence presented at trial was enough to support the jury’s finding of retaliation.
Other circumstantial evidence points in a similar direction. For one, not only were
defendants selecting substantially younger candidates for vacancies and promotions, but there
is also proof that in March of 2014, the other two employees affected by the Reorganization,
Oliver and Torres, were promoted to Level 16 positions while Gonzalez, their former supervisor,
remained at a Level 15 position. A reasonable jury could conclude from this evidence that these
employees were similarly-situated in the face of the Reorganization but were treated differently
because of their age or because neither had filed complaints of age discrimination against Kim
Perez and the Company. See Docket No. 153 at p. 6.
The record also reflects that the two employees that were over 50 years of age (Wilma
Diaz and Gonzalez) were stuck at Level 15 positions, whereas substantially younger employees
were being selected or promoted without having to apply or compete for positions. A plaintiff
may show that the employer’s reason is a pretext for discrimination with evidence of “statistical
evidence showing disparate treatment by the employer of members of the protected class.”

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Mesnick, 950 F.2d at 824. Pursuant to the foregoing, the jury also had sufficient statistical
evidence to infer pretext.
Finally, during trial, the Plaintiff stressed the fact that the Company’s Talent
Management Review document for 2014 had neither “promotion timing” or “potential moves”
or “developmental actions” listed for her. See Plaintiff’s Exhibit 39. A cursory review of this
document shows that this lack of information was a departure from the usual practice.
Moreover, the reasons Adames and Harris gave for this lack of information were all proven to
be inconsistent, if not false.
From the evidence presented at trial, the court finds that defendants cannot properly
argue that there was a complete absence of evidence to support the verdict. On the contrary,
the evidence from which the jury could have reasonably concluded that defendants retaliated
against the Plaintiff by failing to promote her was overwhelming. Defendants’ motion for
judgment as a matter of law is thus DENIED.
b. “Partially Achieved” Performance Evaluation
Defendants argue that they did not retaliate against Plaintiff by giving her an
unwarranted “Partially Achieved” or PA rating in her 2013 performance evaluation. See Docket
No. 163 at pp. 14-15. First, they contend that Plaintiff herself admitted that she did not meet
deadlines and needed improvement in her communication skills. 16 See id. Second, defendants
set forth that pursuant to the applicable law, the only relevant inquiry is whether Abbott

16 In support of this argument, defendants refer to the jury trial transcript where Plaintiff supposedly admitted
having “no evidence” that Kim Perez gave her “bad evaluations to discriminate or retaliate against her.” See Docket
No. 163 at p. 15 (citing Docket No. 130 at p. 106). According to defendants, this admission warrants “the dismissal
of all the claims.” See Docket No. 163 at p. 15. However, the court found no such content in the cited material. “The
court will not do counsel’s work,” Diaz–Morales v. Rubio–Paredes, 170 F. Supp. 3d 276, 289 (D.P.R. 2016), and
ferret the extensive record of this case to find this so-called “admission.”

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believed that Plaintiff was performing below expectations, not whether she actually was
underperforming or whether Plaintiff subjectively thought she was not. See id.
In response to this argument, Plaintiff pointed out to portions of her trial testimony
where she explained how Kim Perez excluded her from meetings and kept important
information from her that was essential to the performance of her duties. See Docket No. 170
at p. 13; Docket No. 130 at pp. 42-45. The record reflects that Kim Perez and Plaintiff often had
differing explanations for events that transpired during the course of their working relationship
as supervisor and subordinate. Nevertheless, a reasonable jury could have deemed Plaintiff’s
account more credible than Kim Perez’s and concluded that the latter sabotaged Plaintiff’s
ability to achieve expectations in retaliation for Plaintiff having filed claims of age
discrimination against her.
Some inconsistencies also stem from the way Plaintiff’s supervisors handled her
purported performance shortcomings. The first has to do with the implementation of the
Company’s Performance Improvement Plan (“PIP”). Adames testified that a PIP is usually
recommended when an employee obtains a PA in his/her evaluation for two consecutive
years, 17 and Harris’ email stated that Gonzalez had been displaying competency issues for
three consecutive years. 18 Despite supposedly displaying sub-par performance for three years,
Kim Perez did not mention placing Plaintiff in an improvement plan during her 2013 mid-year
review in September of 2013. See Docket No. 130 at pp. 38-39. On the contrary, Plaintiff
testified that after this mid-year evaluation, she believed she was “on track” to receiving an
“AE” (“Achieved Expectations”) in her final performance evaluation. But after her formal claim

17
18

See Docket No. 125 at pp. 90-92.
See Docket No. 153 at p. 52.

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of age discrimination at the ADU just a month later, everything took a “downward turn.” See
Docket No. 170 at pp. 14-16.
The fact remains though, that Gonzalez was never placed on a PIP, 19 and according to
Plaintiff, neither Harris or Kim Perez devised a plan to enable her to improve her
performance. 20 On the other hand, the defendants’ position is that they did not deviate from
Company policy with regards to their performance evaluations of Gonzalez. According to
defendants, they did not place her on a PIP because she did not fail to meet expectations for
two consecutive years after having obtained a “satisfactory evaluation” in her 2012 performance
review. See Docket No. 163 at pp. 21-22. However, this post hoc explanation is not aligned with
Harris’ statements in his March 2014 email to Plaintiff.
As to the corrective measures taken to help Plaintiff improve, defendants contend that
in 2012 they created an “action plan” for Plaintiff to achieve goals “in the areas where she was
having difficulties.” See id. at p. 22. In support of this statement, defendants refer to her 2012
performance evaluation, which defendants admitted in the previous paragraph was
“satisfactory” and precluded the implementation of a PIP. Id. at p. 21. That is, defendants’ use
of Gonzalez’s 2012 performance evaluation is twofold and ambiguous. On the one hand,
Gonzalez’s 2012 performance evaluation states she achieved expectations and prevented the
implementation of a PIP, but this document is also the source of a corrective program devised
to aid her improve her consistently deficient performance. Defendants cannot have the cake
and eat it too. A reasonable jury could plausibly not believe defendants’ knotty theory.

19
20

See Docket No. 125 at p. 92.
See Docket No. 130 at p. 68.

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The second inconsistency in the record has to do with defendants’ communications with
Plaintiff regarding her performance shortcomings. First, when Plaintiff emailed Harris in
November of 2013 stating her interest in the Senior Product Manager position, Harris never
mentioned the competency issues that would hinder her possibilities for a promotion. See
Docket No. 130 at p. 37. This was just four (4) months before the email he sent her about her
ineptitude for promotion. Second, Kim Perez admitted that for the most part, she
communicates with her team through emails because that is her management style. See Docket
No. 123 at p. 11; Docket No. 155 at p. 58. In fact, Plaintiff had complained back in 2011 that Kim
Perez sent a lot of emails. See Docket No. 123 at pp. 10-11. But other than Harris’ email of March
of 2014, defendants did not produce one email from Kim Perez in which she admonished or
corrected or reprimanded Plaintiff for her subpar performance, which defendants now contend
is the real reason for Plaintiff’s negative evaluation and stasis in a Level 15 position. “The
absence of such evidence is a factor that the jury reasonably could consider in deciding this
issue.” Trainor v. HEI Hosp., LLC, 699 F.3d 19, 28–29 (1st Cir. 2012) (citing Benders v. Bellows
& Bellows, 515 F.3d 757, 763–64 (7th Cir.2008)) (defendant not entitled to judgment as a
matter of law where defendant was unable to produce memorandum, email, or other internal
writing substantiating its non-retaliatory reason for terminating the plaintiff in the midst of
negotiations). Plaintiff’s formal claim of discrimination and retaliation preceded the
documentary evidence defendants produced to prove Plaintiff’s performance shortcomings,
and given the sequence of events, the jury could have reasonably inferred that the negative
performance review was retaliatory.
Another discrepancy is apparent when one juxtaposes defendants’ claim that Plaintiff
had competency issues for three consecutive years versus the fact that Plaintiff was a finalist
for promotion at the very end of 2013, when Kim Perez already knew that she had partially

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achieved expectations. And although Kim Perez denied considering what she deemed was
Plaintiff’s deficient 2013 performance in the selection process for the Senior Product Manager
position, as stated supra, a jury could have simply rejected this testimony as inherently
implausible or unbelievable. But having picked Plaintiff as a finalist out of 114 applicants
despite her poor performance is inconsistent with defendants’ goal to pick the “best candidate”
for the position. In this regard, the court finds that this incongruency credits Plaintiff’s theory
that her selection as a finalist was a sham intended to deceive her into thinking she was
genuinely being considered for promotion, only to have her chances for advancement shattered
with a negative performance evaluation shortly thereafter. See Santiago-Ramos, 217 F.3d at 56
(finding a plaintiff can establish pretext by showing weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons
such that a factfinder could infer that the employer did not act for the asserted nondiscriminatory reasons).
All told, the court finds that the jury in this case could have reasonably found that
defendants deviated from the Company’s performance evaluation policy and that the shifting
explanations they offered were incongruous. Deviations from established Company policy have
been recognized as evidence of pretext. See Dunn v. Trustees of Boston Univ., 761 F.3d 63, 73
(1st Cir. 2014) (“[T]his court has recognized that deviation from established policy or practice
may be evidence of pretext.”). The overall factual picture in this case could have sensibly led a
juror to disbelieve defendants’ contention that their decision to give Plaintiff a negative
performance review was based purely on a poor performance record. On the contrary, the
evidence supported the jury’s conclusion that the performance issues that Kim Perez and Harris
pointed out to Plaintiff in 2014 in her final evaluation and in one email, respectively, were a
pretext to cover up their real motive: retaliation for having complained of age discrimination.

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In light of the foregoing, the court finds that Plaintiff presented enough evidence of
pretext for a jury to reasonably conclude that Plaintiff’s negative performance evaluation was
unwarranted and resulted from defendants’ desire to retaliate against Plaintiff for having filed
claims of age discrimination and retaliation. Accordingly, defendants’ motion for judgment as
a matter of law is DENIED on these grounds.
c. SIF Letter
Pursuant to Article 5(a) of the Workers’ Compensation Act, better known as the State
Insurance Fund Corporation Law, Law No. 45, P.R. LAWS ANN. tit. 11, § 7, an employee “who
suffers a work-related injury or accident and reports to the Fund for treatment, has an absolute
right to reinstatement to her position once she is discharged from the Fund (i.e., from medical
treatment), provided she seeks reinstatement within twelve months of her injury or accident.”
Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 750 (1st Cir. 1995). See also Martinez v. Eagle
Glob. Logistics (CEVA), No. CIV. 09-02265 PG, 2011 WL 3843918, at *20 (D.P.R. Aug. 26,
2011) (“The Supreme Court of Puerto Rico has found that Article 5(a) has two components: (1)
the obligation to keep the injured employee’s job available for one year and, (2) the obligation
to reinstate him after the SIF discharges him, so long as the employee seeks reinstatement
within the one year reserve period and he meets the three statutory conditions.”)(citing
Grillasca–Pietri v. Portorican American Broadcasting Co., Inc., 233 F. Supp. 2d 258, 265
(D.P.R.2002)). “[T]he Puerto Rico Supreme Court has held that seeking SIF benefits qualifies
as protected activity under Law 115.” Santana-Colon v. Houghton Mifflin Harcout Pub. Co., 81
F. Supp. 3d 129, 136 (D.P.R. 2014) (citing Feliciano Martes v. Sheraton, 182 P.R. Dec. 368, 395
(2011)).

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Defendants argue that the SIF exhaustion notice did not constitute retaliation because a
threat is not an adverse employment action “under ADEA” and because they had a legitimate
non-retaliatory reason for notifying her that she had exhausted her reserve period. See Docket
No. 163 at pp. 10-11. In response, Plaintiff’s opposing argument is twofold. First, she argues
that the SIFC Law does not “mandate termination of the employee” after the one-year reserve
period expires and a reasonable jury could have deemed the letter as an act of retaliation in
violation of Law No. 115 because it contained a threat of termination. 21 See Docket No. 170 at
p. 9 n.21. Second, Plaintiff purports that defendants are precluded from moving for judgment
as a matter of law on this issue because they did not raise it in their Rule 50(a) motions. See id.
at p. 4 n.8. In their reply, defendants justify this omission complaining that the judge cut them
short during their oral arguments pursuant to Rule 50(a). 22 See Docket No. 177 at p. 3 n.1.
After carefully reviewing defendants’ Rule 50(a) motions, the court agrees with Plaintiff
in both of her arguments. In their preverdict motions, defendants failed to advance their
sufficiency of the evidence argument regarding Plaintiff’s Law No. 115 retaliation claim for
having reported to the SIF. As previously set forth, a renewed motion for judgment as a matter
of law pursuant to Rule 50(b) “is bounded by the movant’s earlier Rule 50(a) motion. … As a
result, the movant cannot use such a motion as a vehicle to introduce a legal theory not
distinctly articulated in its Rule 50(a) motion.” Cornwell Entm’t, Inc. v. Anchin, Block &
Anchin, LLP, 830 F.3d 18, 25 (1st Cir. 2016) (citing Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir.
2008))(internal citations and quotation marks omitted). The court holds that defendants are

“An employee establishes a prima facie case under Law 115 by proving that (1) he engaged in one of the protected
activities set forth in the … Act and (2) he was subsequently discharged, threatened or suffered discrimination
at work.” MVM Inc. v. Rodriguez, 568 F. Supp. 2d 158, 176–77 (D.P.R. 2008)(emphasis ours)(citing P.R. LAWS
ANN. tit. 29 § 194a(a); Irizarry v. Johnson & Johnson, 150 P.R. Dec. 155, 164 (2000)). See also Figueroa v. J.C.
Penney Puerto Rico, Inc., No. CIV. 07-1258 JAG, 2010 WL 4861497, at *8 (D.P.R. Nov. 29, 2010) (“Employees
must establish that a protected activity was carried out and that termination, threats or discrimination were
suffered.”).
22 As previously discussed, this court has already held that this argument lacks merit. See supra note 7.
21

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procedurally barred from seeking judgment as a matter of law on this issue. In addition, this
particular retaliation claim was filed pursuant to Law No. 115, 23 not ADEA, as defendants
argued in their Rule 50(b) motion. Defendants simply missed the mark, and thus, their motion
for judgment as matter of law as to Plaintiff’s Law No. 115 retaliation claim for having reported
to the SIF is DENIED.
3. Willful Violation
Defendants argue that “[t]he evidence presented at trial also does not support a finding
of willful violations of federal law.” Docket No. 163 at p. 23. According to them, there was no
evidence showing “knowing or reckless disregard of Plaintiff’s ADEA rights,” id., and the jury’s
finding to that effect is unsupported “given the lack of strength of her prima facie case and the
absence of pretext.” Id. In response, Plaintiff stated that Abbott waived or forfeited its challenge
to the sufficiency of the evidence related to the issue of “willfulness” because it did not raise it
in its Rule 50(a) motions, allowed the court to charge the jury on the issue, and failed to object
its inclusion in the verdict form. See Docket No. 170 at p. 5. In their reply, defendants justify
their omission by complaining that the judge cut them short during their Rule 50(a) motions
before the case was submitted to the jury. 24 See Docket No. 177 at p. 3 n.1. Defendants add that
Plaintiff also failed to object to the waiver. 25 See id. at p. 3.

See “Fifth Cause of Action” in Complaint, Docket No. 1 at p. 19.
As previously discussed, this court has already held that this argument lacks merit. See supra note 7.
25 In their reply (Docket No. 177), defendants argue that Plaintiff’s failure to object to defendants’ waiver of this
argument at the Rule 50(a) stage also precludes them from objecting in their Rule 50(b) opposition memoranda.
See Docket No. 177. In support of their position, defendants cite U.S. v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995)
and include an explanatory parenthetical that states as follows: “(party’s pre-verdict oral Rule 50(a) motion did
not contain facts and law that entitled it to judgment whereas its post-verdict written Rule 50(a) motion did;
because opposing party failed to object when initially made orally, opposing party waived right to object on
specificity grounds).” Docket No. 177 at p. 3. But Taylor is a bank robbery criminal case that obviously does not
include a discussion of Rule 50 of the Federal Rules of Civil Procedure. In addition, the “raise-or-waive rule”
discussion it includes is in the context of an attorney’s duty to object to an “improper occurrence” or an erroneous
ruling by the trial judge.” Taylor, 54 F.3d at 972. Simply put, the defendants’ “explanatory parenthetical” does not
explain any of Taylor’s holdings and can only be regarded as an exercise of wishful thinking or fictional creativity
23

24

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Plaintiff’s Second Cause of Action in her complaint was precisely “Willful Violation
Under ADEA.” Docket No. 1 at pp. 17-18. After carefully reviewing defendants’ Rule 50(a)
motions, the court agrees with Plaintiff that defendants failed to advance their sufficiency of
the evidence argument in regard to this claim in their preverdict motions. As previously set
forth, a movant cannot file a Rule 50(b) motion at the post-trial stage introducing a legal theory
not distinctly articulated in the Rule 50(a) motion. See Costa-Urena, 590 F.3d at 26 (“It is wellestablished that arguments not made in a motion for judgment as a matter of law under Rule
50(a) cannot then be advanced in a renewed motion for judgment as a matter of law under Rule
50(b).”). The court holds that, as a result, defendants are procedurally barred from seeking
judgment as a matter of law on the issue of willfulness, and their motion is DENIED on those
grounds.
4. Back Pay and Compensatory Damages
Defendants finally argue that Plaintiff failed to present evidence from which a jury could
award back pay and compensatory damages. See Docket No. 163 at pp.23-24. Therein,
defendants incorporate their discussion in their Motion for New Trial. See Docket No. 164.
Accordingly, the court will defer the discussion of this argument to the opinion adjudging said
motion.
III. CONCLUSION
The court finds that defendants that have failed to meet their burden in showing that the
evidence in the record, taken in the light most favorable to Gonzalez, is so overwhelmingly

on the part of defendants’ counsel. Defendants would have this court find that opposing counsel is required to
raise an objection in the face of a moving counsel’s careless silence or omission. But defendants’ logic puts the cart
before the horse. At any rate, the undersigned will not deem defendants’ counsel misquotation as an attempt to
intentionally mislead the Court.

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inconsistent with the verdict that no reasonable jury could come to the same conclusion.
Although the issue of backpay is HELD IN ABEYANCE, the rest of their renewed motion for
judgment as a matter of law pursuant to Rule 50(b) is hereby DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, October 30, 2018.

S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNE
SENIOR U.S. DISTRICT JUDGE