Franceschi-Vazquez v. Pharmacy
Filing
40
OPINION AND ORDER re 19 Motion for Summary Judgment. The Court GRANTS defendant CVS's motion for summary judgment. Plaintiff Franceschi's ADEA and Puerto Rico law claims are DISMISSED WITH PREJUDICE. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 04/27/2016. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ROSARIO FRANCESCHI-VÁZQUEZ,
Plaintiff,
Civil No. 14-1694 (FAB)
v.
CVS PHARMACY,
Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Rosario Franceschi-Vázquez (“Franceschi”) brought suit against
her former employer, CVS Pharmacy (“CVS”), alleging that CVS
discriminated against her on the basis of her age in violation of
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§
621-34, Puerto Rico Law 100, P.R. Laws Ann. tit. 29, § 146, and
Article 1802 of the Puerto Rico Civil Code, id. tit. 31, § 5141.
(Docket No. 1.)
Before
the
(Docket No. 19.)
Court
is
CVS’s
motion
for
summary
judgment.
Franceschi opposed the motion, (Docket No. 23),
and CVS replied, (Docket No. 28).
For the reasons that follow,
CVS’s motion for summary judgment is GRANTED.
I.
SUMMARY JUDGMENT STANDARD
A court will grant summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
The role of
summary judgment is to “pierce the boilerplate of the pleadings and
Civil No. 14-1694 (FAB)
2
assay the parties’ proof in order to determine whether trial is
actually required.”
Tobin v. Fed. Exp. Corp., 775 F.3d 448, 450
(1st Cir. 2014) (quoting Wynne v. Tufts Univ. Sch. of Med., 976
F.2d 791, 794 (1st Cir. 1992)).
“When the nonmovant bears the
burden of proof on a particular issue, she can thwart summary
judgment only by identifying competent evidence in the record
sufficient to create a jury question.”
Id. at 450-51.
The Court
draws all reasonable inferences from the record in the light most
favorable to the nonmovant, but it disregards unsupported and
conclusory allegations.
McGrath v. Tavares, 757 F.3d 20, 25 (1st
Cir. 2014).
II.
FACTUAL BACKGROUND1
CVS hired Franceschi on January 11, 2010, when she was fiftytwo years old.
See Docket Nos. 19-4 at p. 8; 24-1 (reporting
Franceschi’s date of birth as September 21, 1957).
Franceschi
began working for CVS as a part-time clerk/cashier at its store in
Old San Juan, (Docket No. 19-4 at p. 4), even though her initial
phone interview in October 2009 was for a position in the CVS
1
The Court draws these uncontested facts from materials submitted
by CVS and Franceschi. Rather than submit a separate statement of
additional facts set forth in numbered paragraphs, which would
comply with Local Rule 56(c), Franceschi included a ten-page
“relevant facts” section in her memorandum in opposition to CVS’s
motion for summary judgment. Several of these “relevant facts”
have no citation, cite to allegations in Franceschi’s complaint
that were denied in CVS’s answer, and cite to incorrect materials
and page numbers in the record.
The Court ignores these
unsupported allegations and includes only facts for which it found
support in the record. See Fed. R. Civ. P. 56(c).
Civil No. 14-1694 (FAB)
3
beauty department, (Docket No. 23-3).
Franceschi’s duties as a
clerk/cashier included operating a cash register, completing price
changes, maintaining the check-out area, stocking shelves, and
occasionally cleaning the store.
(Docket No. 19-4 at pp. 4-5.)
Generally, CVS employees worked rotating shifts and were
expected to work closing hours a few days per week.
No. 19-3 at p. 8.)2
(Docket
Franceschi initially worked closing hours, but
her manager switched her to day shifts because Franceschi used
public transportation to get to work.
Id. at pp. 9-11.
During Franceschi’s three and a half years working for CVS,
seven other women were hired or promoted to work in the beauty
department at CVS’s Old San Juan store on the following dates:
January 17, 2010 (Mónica Ortiz, full-time); March 7, 2010 (Dagmar
Ríos, part-time); April 18, 2010 (Ninoshka Diaz, full-time); May 2,
2010
(Valerie
Rodríguez-Álvarez,
full-time);
October
3,
2011
(Rosell Belmont-Monell, part-time); April 1, 2012 (Érika Pardo,
part-time); and June 9, 2013 (Ana Ramos, part-time).
No. 19-7.
See Docket
All of these women were in their twenties or thirties.
See id.
On April 1, 2012, CVS promoted Franceschi to work in the
beauty department at the Old San Juan store as a part-time beauty
advisor.
2
See Docket Nos. 19-3 at pp. 16-18; 19-8.
Her duties
When citing to the transcript of Franceschi’s deposition, (Docket
No. 19-3), the Court uses the page numbers of the docket entry and
not the original page numbers of the transcript.
Civil No. 14-1694 (FAB)
4
included meeting or exceeding personal sales and margin targets,
participating in a sales-driven culture in the beauty department,
performing
sessions.
light
maintenance,
and
attending
vendor
training
(Docket No. 19-4 at p. 5.)
Six months later, on October 14, 2012, CVS promoted Franceschi
to full-time beauty advisor.
Franceschi
was
the
only
See Docket Nos. 19-4 at p. 5; 19-8.
full-time
employee
in
the
beauty
department, so her manager asked her to work closing hours at least
twice a week, and she agreed.
(Docket No. 19-3 at pp. 23-24.)
Other employees who previously worked full-time in the beauty
department had also worked closing hours.
Id. at pp. 12-13.
Eight months later, on June 5, 2013, Franceschi’s manager
asked her to clean a refrigerator that stored dairy products.
(Docket No. 19-3 at p. 26.)
CVS’s store manager had the discretion
to ask all employees (except those working in the pharmacy) to
assist in different areas of the store depending on business needs.
(Docket No. 19-6 at p. 2.)
Franceschi was injured.
While cleaning the refrigerator,
(Docket No. 24-1.)
The State Insurance
Fund Corporation placed her on rest until June 15 and released her
to return to work on June 16.
(Docket No. 24-2.)
Shortly before she was set to return to work, Franceschi
received a call from her supervisor, who informed her that she was
scheduled to work closing hours all week.
pp. 27-28.)
(Docket No. 19-3 at
When Franceschi returned to work, she spoke to her
Civil No. 14-1694 (FAB)
5
manager and told him that she could not work closing hours every
night because she had a disabled daughter.
Id.
Her manager
responded by telling Franceschi to contact Human Resources.
Id.
Franceschi called Human Resources and was told that because CVS
does
not
provide
reasonable
accommodations
for
employees’
relatives’ conditions, it was up to Franceschi’s manager to grant
her the schedule request.
Id. at pp. 28-29.
When Franceschi told
her manager this, he said that he needed someone closing every
night in the beauty department and that if she could not do that,
she would have to resign from the beauty department before he would
put her back on the schedule.
Id.
On June 25, 2013, Franceschi submitted a letter of resignation
from her position in the CVS beauty department, explaining that
“personal reasons of a family medical nature” prevented her from
being able to work night shifts.
(Docket No. 24-3.)
She stated
that she was willing to work in another CVS department and was
available from 8:00 a.m. to 8:00 p.m.
Id.
On July 7, 2013, CVS changed Franceschi from the position of
full-time
beauty
clerk/cashier.
change.
advisor
to
the
position
(Docket No. 19-7 at p. 3.)
(Docket No. 19-10.)
of
full-time
Her salary did not
On her third day of returning to work
as a cashier, the store was very busy, but her manager refused to
call other
employees
to
provide
back-up
support
at
the cash
registers because the other employees were working on a special
Civil No. 14-1694 (FAB)
assignment.
6
(Docket No. 19-3 at pp. 30-31.)
On subsequent days,
Franceschi’s manager assigned her to the self-checkout area while
other employees worked on a special assignment for the beauty
department.
Id. at p. 31.
On July 15, 2013, Franceschi submitted
a letter of resignation from CVS.
(Docket No. 24-4.)
During her three and a half years working at CVS, employees
made three age-related comments to Franceschi.
First, on an
unknown date when Franceschi received a letter from her health
insurance
company that
incorrectly
had
the
year
1800
on
it,
Franceschi’s supervisor said “I knew you were old, but not that
old.”
(Docket No. 19-3 at p. 41.)
Second, on another unknown
date, a female supervisor told Franceschi “I’m a lettuce and you
are the grass.”
Id. at p. 56.
Third, on several occasions when
Franceschi would go to the backroom to retrieve supplies, two male
employees would say “Be careful that you don’t fall because we
cannot find your parts.”
Id. at pp. 45-47.
After Franceschi
complained about this third comment to an assistant store manager,
the two male employees stopped making the comment to Franceschi.
Id. at pp. 50-51.
On
September
18,
2013,
Franceschi
filed
a
charge
of
discrimination against CVS with the Puerto Rico Anti-Discrimination
Unit (“ADU”).
(Docket No. 24-6.)
Civil No. 14-1694 (FAB)
7
III.
ADEA CLAIMS
The ADEA makes it unlawful to “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.”
§ 623(a)(1).
judgment
on
29 U.S.C.
Defendant CVS argues that it is entitled to summary
Franceschi’s
ADEA
claim
because
(1)
Franceschi’s
refusal to hire and failure to promote claims are time-barred;
(2) Franceschi’s allegations that are not time-barred do not
constitute actionable adverse employment actions; (3) Franceschi
cannot
establish
that
she
was
subjected
to
a
hostile
work
environment; and (4) Franceschi cannot establish that she was
constructively discharged.
A.
(Docket Nos. 19-20.)
Timeliness of Refusal to Hire and Failure to Promote Claims
Before bringing suit in federal court, an ADEA plaintiff in
Puerto Rico must file an employment discrimination charge with the
Equal
Employment
Opportunity
Commission
(“EEOC”)
or
the
ADU3
“within 300 days after the alleged unlawful practice occurred,”
29
U.S.C.
§
626(d)(1)(B).
Cardoza-Rodríguez,
133
F.3d
See
111,
122
Am.
Airlines,
(1st
Cir.
Inc.
1998).
v.
In
discussing an analogous 300-day time bar for Title VII claims, the
3
In Puerto Rico, a charge filed with the ADU serves as a
simultaneous filing with the EEOC.
See Rivera-Rivera v.
Thyssenkrupp Elevator Corp., Civil No. 14-1478(SEC), 2015 WL
5719799, at *2 (D.P.R. Sept. 29, 2015) (Casellas, J.) (describing
the workshare agreement between the EEOC and the ADU).
Civil No. 14-1694 (FAB)
8
United States Supreme Court held that an unlawful employment
practice that is a “discrete discriminatory act” must be alleged in
a charge filed within 300 days after the discrete act occurred.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see
Ramírez Rodríguez v. Boehringer Ingelheim Pharm., Inc., 425 F.3d
67, 79 n.14 (1st Cir. 2005) (applying Morgan to an ADEA claim).
Thus, “[e]ach discrete discriminatory act starts a new clock for
filing charges alleging that act,” and time-barred acts are not
actionable, “even when they are related to acts alleged in timely
filed charges.”
Morgan, 536 U.S. at 113.
The Supreme Court
identified “refusal to hire” and “failure to promote” as easily
identifiable discrete acts.
Id. at 114.
Here, Franceschi alleges in her complaint that CVS refused to
hire her for a position in the beauty department in January 2010,
and thereafter, repeatedly failed to promote her from her part-time
position as a clerk/cashier when full-time positions in the beauty
department became available.
(Docket No. 1 at pp. 2-5.)
It is
uncontested, however, that CVS promoted Franceschi to part-time
beauty advisor on April 1, 2012, and to full-time beauty advisor on
October 14, 2012.
19-8.
See Docket Nos. 19-3 at pp. 16-18; 19-4 at p. 5;
Thus, all of the alleged discriminatory actions concerning
CVS’s refusal to hire and failure to promote Franceschi occurred
before October 14, 2012.
Franceschi waited until September 18,
2013, more than 300 days later, to file a discrimination charge
Civil No. 14-1694 (FAB)
against CVS with the ADU.
9
(Docket No. 24-6.)
Her refusal to hire
and failure to promote claims are therefore time-barred.
Franceschi attempts to circumvent this fatal flaw by applying
the continuing violation doctrine, which allows a plaintiff to
recover
“for
discriminatory
acts
that
otherwise
would
be
time-barred so long as a related act fell within the limitations
period,” Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st
Cir. 2009).
See Docket No. 23 at pp. 14-16.
Franceschi argues
that the “continuing violation” was CVS’s discriminatory practice
of hiring and promoting only young females to work in its beauty
department.
Id.
It is well-settled, however, that the continuing
violation doctrine does not apply to discrete acts of alleged
discrimination.
Ayala v. Shinseki, 780 F.3d 52, 57 (1st Cir.
2015); Tobin, 553 F.3d at 130.
“Instead, [the doctrine] applies
only to claims that cannot be said to occur on a particular day and
that by their very nature require repeated conduct to establish an
actionable claim, such as hostile work environment claims.” Ayala,
780 F.3d at 57.
Refusal to hire and failure to promote are
discrete acts that are “instantaneously actionable.”
Morgan, 536 U.S. at 114).
Id. (citing
Therefore, Franceschi’s refusal to hire
claim was actionable the day CVS refused to hire Franceschi for the
beauty
department,
and
her
failure
to
promote
claims
were
actionable each time CVS did not promote her to fill an opening in
the beauty department.
Because these claims are actionable as
Civil No. 14-1694 (FAB)
10
discrete acts, the continuing violation doctrine does not apply.
Franceschi’s attempt to resurrect her time-barred claims fails.
The Court GRANTS summary judgment in favor of defendant CVS as
to Franceschi’s refusal to hire and failure to promote claims
brought pursuant to the ADEA.
B.
Discrete Adverse Employment Action Claims
A plaintiff alleging an adverse employment action in an ADEA
case
has
the
burden
of
proving,
through
direct
or
indirect
evidence, that age was the “but-for” cause of the challenged
action.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-80
(2009).
When the plaintiff relies on only indirect evidence of
discrimination, as Franceschi does here, the First Circuit Court of
Appeals applies the three-stage burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Del
Valle-Santana v. Servicios Legales De P.R., Inc., 804 F.3d 127,
129-30 (1st Cir. 2015).
In the first stage of this framework, the plaintiff must make
out a prima facie case of age discrimination by establishing
(1) that she was at least forty years old at the time of the
challenged action; (2) that her work met her employer’s legitimate
expectations; (3) that her employer took adverse action against
her; and (4) that her employer did not treat age neutrally in
taking the adverse action or, if she was discharged, replaced her
with a younger person.
Id. (citing Brennan v. GTE Gov’t Sys.
Civil No. 14-1694 (FAB)
11
Corp., 150 F.3d 21, 26 (1st Cir. 1998)).
If the plaintiff
establishes a prima facie case, the burden shifts to the employer
to provide a “legitimate, nondiscriminatory reason” for the adverse
action.
Id. at 130.
If the employer does this, then the burden
shifts back to the plaintiff to show that the employer’s proferred
reason is a pretext and that “age was the but-for cause of the
employer’s adverse action.”
Id. (quoting Velez v. Thermo King de
P.R., Inc., 585 F.3d 441, 447-48 (1st Cir. 2009)).
Here, CVS moves for summary judgment based only on the first
stage of the McDonnell Douglas framework, arguing that Franceschi
has not established the third element of a prima facie case because
her allegations (that are not time-barred) do not constitute
adverse employment actions. (Docket No. 20 at pp. 12-14.) Adverse
employment actions are those that affect an employee’s “terms,
conditions, or privileges of employment.”
29 U.S.C. § 623(a)(1).
To be actionable, the adverse actions “must affect more than de
minimis aspects of an employee’s work, or trivial, subjectively
perceived inconveniences.”
Irizarry-Santiago v. Essilor Indus.,
982 F. Supp. 2d 131, 136 (D.P.R. 2013) (Besosa, J.); see Cham v.
Station Operators, Inc., 685 F.3d 87, 94 (1st Cir. 2012) (“An
adverse employment action typically involves discrete changes in
the terms
promote,
of
employment,
reassignment
such
as
with
hiring,
firing,
significantly
failing
to
different
Civil No. 14-1694 (FAB)
12
responsibilities, or a decision causing significant change in
benefits.”
(internal quotation marks and citations omitted)).
Franceschi lists several acts that she considers discrete
adverse employment actions.
(Docket No. 23 at p. 17.)
Excluding
the allegations that are time-barred (i.e., her refusal to hire and
failure to promote claims), as well as the allegations with no
support in the record, the Court pares the list down to the
following discrete acts:
(1) Franceschi’s manager asked her to
clean a refrigerator on one occasion; (2) Franceschi’s manager
assigned her to the self check-out area for a few days while other
employees worked on a special assignment; (3) Franceschi’s manager
did not call other employees to provide back-up support at the cash
registers on a busy day when Franceschi was working as a cashier;
(4) Franceschi’s manager scheduled her to work closing hours every
night for one week; and (5) Franceschi’s manager asked her to
resign from the beauty department if she wanted to work only day
shifts.
The
first
three
employment actions.
items
above
do
not
qualify
as
adverse
CVS’s store manager had the discretion to ask
all employees to assist in different areas of the store depending
on business needs.
(Docket No. 19-6 at p. 2.)
Although being
asked to clean a refrigerator once, working in the self check-out
area for a few days, and working one busy day without back-up
support may have been undesirable and inconvenient for Franceschi,
Civil No. 14-1694 (FAB)
13
these minor events did not affect a term, condition, or privilege
of her employment. See Morales-Vallellanes v. Potter, 605 F.3d 27,
38 (1st Cir. 2010) (holding that minor and temporary changes in
assigned tasks that employee preferred to perform are not adverse
employment actions in Title VII discrimination claim).
The fourth and fifth items may qualify as adverse employment
actions.
The First Circuit Court of Appeals stated in the context
of a Title VII retaliation claim that a schedule change may
constitute an adverse employment action in certain circumstances,
especially if the change causes the employee to suffer an undue
hardship.
Id. at 39-40; see Washington v. Ill. Dep’t of Revenue,
420
658,
F.3d
659
(7th
Cir.
2005)
(holding
that
change
in
employee’s work hours was adverse employment action sufficient for
prima facie case of retaliation where change affected employee’s
ability to care for her disabled child because jury could find that
employer “set out to exploit a known vulnerability and did so in a
way that caused a significant (and hence an actionable) loss”).
Thus, requiring Franceschi to work closing hours for one full week,
knowing that she previously closed only two nights per week because
she had to take care of her disabled daughter, may be an adverse
employment action.
Likewise, requiring Franceschi to resign from the beauty
department to be able to work day shifts as a clerk/cashier may be
considered a constructive demotion, which is an adverse employment
Civil No. 14-1694 (FAB)
action.
14
See Claes v. Boyce Thompson Inst. for Plant Research, 88
F. Supp. 3d 121, 126-27 (N.D.N.Y. 2015) (finding that voluntary
transfer to new position constituted constructive demotion and
adverse action in ADEA claim where employer intentionally created
conditions so unpleasant that reasonable person would have been
compelled to request and accept transfer).
This is true even
though Franceschi’s demotion did not result in a salary reduction
because it did result in less interesting and prestigious job
duties.
See Hernandez-Torres v. Intercont’l Trading, Inc., 158
F.3d 43, 47 (1st Cir. 1998) (identifying “disadvantageous transfer”
as example of adverse employment action in Title VII retaliation
claim); Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999)
(“To be equivalent to a demotion, a transfer need not result in a
decrease in pay, title, or grade; it can be a demotion if the new
position proves objectively worse — such as being less prestigious
or less interesting or providing less room for advancement.”).
Nonetheless, Franceschi fails to meet the fourth element of a
prima facie age discrimination case as to these two actions.
evidence
in
the
record
suggests
that
CVS
did
not
treat
No
age
neutrally when it scheduled Franceschi to work closing hours for a
full week and then asked her to resign from the beauty department
if she wanted to work only day shifts.
For example, Franceschi did
not submit evidence showing that CVS did not require younger beauty
department employees to work closing hours for a full week or that
Civil No. 14-1694 (FAB)
15
CVS replaced Franceschi with a younger person after she resigned
from the beauty department.
“While the burden of establishing a prima facie case is ‘not
onerous,’ the plaintiff is still required to prove the prima facie
elements by a ‘preponderance of the evidence.’” Del Valle-Santana,
804 F.3d at 131 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981)).
Franceschi failed to prove the third
and fourth elements of a prima facie age discrimination case for
the discrete acts that she alleges were adverse employment actions.
The Court therefore GRANTS summary judgment in favor of defendant
CVS
as
to
Franceschi’s
claims
of
discrete
acts
of
age
discrimination.
C.
Hostile Work Environment Claim
A plaintiff alleging a hostile work environment in violation
of the ADEA must show:
(1) that she is a member of the class
protected by the ADEA; (2) that she was subjected to unwelcome
harassment; (3) that the harassment was based on age; (4) that the
harassment was sufficiently severe or pervasive so as to alter the
conditions
of
her
employment
and
create
an
abusive
work
environment; (5) that the harassment was both subjectively and
objectively
offensive;
employer liability.
and
(6)
that
there
is
some
basis
for
See O’Rourke v. City of Providence, 235 F.3d
713, 728 (1st Cir. 2001); Collazo v. Nicholson, 535 F.3d 41, 44
(1st Cir. 2008) (recognizing that hostile work environment claims
Civil No. 14-1694 (FAB)
16
may be brought pursuant to the ADEA); Mojica v. El Conquistador
Resort & Golden Door Spa, 714 F. Supp. 2d 241, 260 (D.P.R. 2010)
(Pérez-Giménez, J.).
The fourth and fifth elements of a hostile work environment
claim are typically the most important. O’Rourke, 235 F.3d at 728.
In evaluating these elements, courts look to the record as a whole
and should not discount conduct that was not overtly motivated by
discriminatory
animus.
Id.
at
730.
To
determine
whether
harassment is sufficiently severe and pervasive, courts consider
the totality of the circumstances, including “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether
it
performance.”
unreasonably
interferes
with
an
employee’s
work
Id. at 728-29 (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 787-88 (1998)).
“[S]imple teasing, offhand
comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the ‘terms and conditions
of employment.’”
Faragher, 524 U.S. at 788 (internal quotation
marks and citation omitted).
To rise to the level of altering
terms and conditions of employment, the workplace must “permeate[]
with discriminatory intimidation, ridicule, and insult.”
Perez v.
Horizon Lines, Inc., 804 F.3d 1, 6 (1st Cir. 2015) (quoting
Kosereis v. Rhode Island, 331 F.3d 207, 216 (1st Cir. 2003)).
Civil No. 14-1694 (FAB)
17
Here, Franceschi bases her hostile work environment claim on
her
manager’s
actions
during
the
weeks
leading
up
to
her
resignation (asking her to clean the refrigerator, assigning her to
the self check-out area, not providing her with back-up support on
a busy day, scheduling her to work closing hours, and asking her to
resign from the beauty department to be able to work day shifts)
and on other employees’ age-related comments on unknown dates (“I
knew you were old, but not that old.”; “I’m a lettuce and you are
the grass.”;4 and “Be careful that you don’t fall because we cannot
find your parts.”)
None of this conduct was severe in nature or physically
threatening, although it may have been mildly inconvenient or
humiliating for Franceschi.
The only conduct that interfered with
her work performance was when her manager scheduled her to work
closing hours one week, which she could not do because she had to
take care of her disabled daughter.
Two of the age-related
comments were made just one time and were mere isolated, offensive
utterances. Although the third comment was made several times, the
employees ceased making the comment after Franceschi complained to
4
In her memorandum in opposition to summary judgment, Franceschi
states that this comment was “I am fresh lettuce and you are dry
grass.” (Docket No. 23 at p. 11.) For record support, she cites
to Docket No. 19-2 “at page 168, lines 1-24.” Docket No. 19-2 is
a one-page document that does not have a page 168. The only place
the Court finds support in the record for a comment similar to this
is in Franceschi’s deposition, but the words “fresh” and “dry” do
not appear in the text. See Docket No. 19-3 at p. 56.
Civil No. 14-1694 (FAB)
an assistant manager.
18
Considering the record as a whole in the
light most favorable to Franceschi, the Court concludes that no
jury rationally could find that CVS subjected Franceschi to agebased harassment that was so severe and pervasive that it altered
the terms and conditions of her employment.
Accordingly, the Court GRANTS summary judgment in favor of CVS
as to Franceschi’s hostile work environment ADEA claim.
D.
Constructive Discharge Claim
A plaintiff alleging a constructive discharge in violation of
the ADEA must show that “the working conditions imposed by the
employer had become so onerous, abusive, or unpleasant that a
reasonable person in the employee’s position would have felt
compelled to resign.”
Velazquez-Fernandez v. NCE Foods, Inc., 476
F.3d 6, 12 (1st Cir. 2007) (quoting Suarez v. Pueblo Int’l, Inc.,
229 F.3d 49, 54 (1st Cir. 2000)); see Torrech-Hernandez v. Gen.
Elec.
Co.,
519
F.3d
41,
50
(1st
Cir.
2008)
(plaintiff
must
demonstrate that “conditions were so intolerable” that her decision
to resign was “effectively . . . void of choice or free will”).
The United States Supreme Court explained that a constructive
discharge claim requires a “further showing” beyond that necessary
to establish a hostile work environment.
Pa. State Police v.
Suders, 542 U.S. 129, 134 (2004) (a plaintiff claiming constructive
discharge must show that the hostile work environment “became so
intolerable that her resignation qualified as a fitting response”);
Civil No. 14-1694 (FAB)
19
accord Marrero v. Goya of P.R., Inc., 304 F.3d 7, 28 (1st Cir.
2002); Landgraf v. USI Film Products, 968 F.2d 427, 430 (5th Cir.
1992)
(“To
prove
constructive
discharge,
the
plaintiff
must
demonstrate a greater severity or pervasiveness of harassment than
the minimum required to prove a hostile working environment.”)
Here,
intolerable
because
enough
Franceschi’s
to
create
a
working
hostile
conditions
work
were
not
environment,
as
discussed in the previous section, those conditions necessarily did
not reach the greater level of severity required to establish a
constructive
discharge
claim.
See
Suders,
542
U.S.
at
134.
Franceschi has not pointed to evidence in the record from which a
jury could reasonably conclude that her working conditions at CVS
were so intolerable that a reasonable person in her position would
have felt compelled to resign.
Accordingly, the Court GRANTS
summary judgment in favor of CVS as to Franceschi’s constructive
discharge ADEA claim.
IV.
Puerto
Rico
Law
PUERTO RICO LAW 100 CLAIM
100,
Puerto
Rico’s
general
employment
discrimination statute, makes it unlawful for an employer to
discharge or discriminate against an employee, or to refuse to hire
a person, on the basis of age.
P.R. Laws Ann. tit. 29, § 146.
CVS
moves for summary judgment on Franceschi’s Law 100 claim on the
same grounds that it moved for summary judgment on her ADEA claim that some claims are time-barred and that, for the other claims,
Civil No. 14-1694 (FAB)
20
Franceschi has adduced no evidence that she was subject to age
discrimination.
(Docket No. 20 at pp. 21-22.)
A one-year statute of limitations applies to Law 100 claims,
and those claims accrue when the employee becomes aware of her
injury.
Am.
Airlines,
Inc.,
133
F.3d
at
124.
Filing
an
administrative charge with the ADU or the EEOC tolls the statute of
limitations for Law 100 claims until the administrative proceeding
concludes. See Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399
F.3d 52, 61 (1st Cir. 2005).
Here, Franceschi alleges that CVS refused to hire her for a
position in the beauty department in January 2010, and thereafter,
repeatedly failed to promote her from part-time clerk/cashier to
full-time beauty advisor.
(Docket No. 1 at pp. 2-5.)
It is
uncontested, however, that CVS promoted Franceschi to part-time
beauty advisor on April 1, 2012, and to full-time beauty advisor on
October 14, 2012.
19-8.
See Docket Nos. 19-3 at pp. 16-18; 19-4 at p. 5;
It is also uncontested that no one else was hired to the
beauty department at the Old San Juan store between April and
October 2012.
See Docket No. 19-7.
Thus, framing Franceschi’s
injury as not being promoted to full-time beauty advisor, the
latest date Franceschi became aware of that injury was on April 1,
2012,
when
she
was
promoted
to
part-time
beauty
advisor.
Franceschi waited until September 18, 2013, more than a year later,
to file a discrimination charge against CVS.
(Docket No. 24-6.)
Civil No. 14-1694 (FAB)
21
Her Law 100 refusal to hire and failure to promote claims are
therefore time-barred.
The Court turns to the merits of Franceschi’s remaining
Law 100 claims.
As it applies to age discrimination cases, Law 100
“differs from the ADEA only with respect to how the burden-shifting
framework
operates.”
Dávila v.
Corporación
de P.R.
Difusión Pública, 498 F.3d 9, 18 (1st Cir. 2007).
para
la
The plaintiff
still has the same burden of persuasion to show that she suffered
an
adverse
employment
discrimination.
action
that
was
motived
Velázquez-Fernández, 476 F.3d at 11.
by
age
Thus, “[o]n
the merits, age discrimination claims asserted under the ADEA and
under Law 100 are coterminous.”
Dávila, 498 F.3d at 18 (affirming
summary judgment for employer on supplemental Law 100 claim because
plaintiff “adduced no significantly probative evidence that his
discharge was motivated by age”).
As discussed above for Franceschi’s ADEA claim, several of her
allegations do not amount to actionable adverse employment actions.
For
the
two
actions
that
may
be
considered
adverse
actions
(scheduling her to work closing hours one full week and requiring
her to transfer to a clerk/cashier position to be able to work only
day shifts), Franceschi adduced no evidence from which a jury could
reasonably
infer
that
those
actions
were
motivated
by
age
discrimination. The merits analysis for Franceschi’s Law 100 claim
Civil No. 14-1694 (FAB)
22
is therefore the same as the analysis for her ADEA claims.
See
Dávila, 498 F.3d at 18.
Thus, for the same reasons that it granted summary judgment on
Franceschi’s ADEA claims, the Court GRANTS summary judgment in
favor of CVS on Franceschi’s Law 100 claim.
V.
PUERTO RICO ARTICLE 1802 CLAIM
Article 1802 Puerto Rico Civil Code is Puerto Rico’s general
tort statute and provides that a person who “causes damage to
another through fault or negligence shall be obliged to repair the
damage so done.”
P.R. Laws Ann. tit 31, § 5141.
CVS moves for
summary judgment on Franceschi’s Article 1802 claim on the ground
that because Franceschi filed claims pursuant to special state and
federal laws addressing age discrimination, she cannot bring an
Article
1802
claim
discrimination.
based
on
the
same
allegations
of
age
(Docket No. 20 at pp. 22-23.)
The Puerto Rico Supreme Court and courts in this District have
held that when a specific labor or employment law covers the type
of conduct for which a plaintiff seeks relief, she is barred from
also bringing a claim pursuant to Article 1802 based on the same
alleged conduct.
See Pagán Colón v. Walgreens of San Patricio,
Inc.,
Dec.
251,
260
P.R.,
Inc.,
Civ.
190
P.R.
GlaxoSmithKline,
(2014);
No.
Vélez-Sepúlveda
13-1909(SCC),
2015
v.
WL
4389529, at *7 (D.P.R. July 15, 2015) (Carreño-Coll, Mag. J.);
Campos v. Safety-Kleen Sys., Inc., 98 F. Supp. 3d 372, 386 (D.P.R.
Civil No. 14-1694 (FAB)
23
2015) (Delgado-Hernández, J.); Irizarry-Santiago v. Essilor Indus.,
982 F. Supp. 2d 131, 140 (D.P.R. 2013) (Besosa, J.); Rosario v.
Valdes, Civ. No. 07-1508(CCC), 2008 WL 509204, at *2 (D.P.R.
Feb. 21, 2008) (Cerezo, J.).
Here, Franceschi fails to point to any allegedly negligent
conduct
separate
from
discrimination laws.
that
covered
by
specific
employment
Instead, Franceschi argues that the factual
basis of her Article 1802 claim is CVS’s “age-based discriminatory
comments, conduct[,] and treatment.”
(Docket No. 23 at p. 25.)
This is precisely the type of conduct covered by claims brought
pursuant to the ADEA and Law 100.
Accordingly, the Court GRANTS
summary judgment in favor of CVS on Franceschi’s Article 1802
claim.
VI.
CONCLUSION
For the reasons explained above, the Court GRANTS defendant
CVS’s motion for summary judgment, (Docket No. 19).
Plaintiff
Franceschi’s ADEA and Puerto Rico law claims are DISMISSED WITH
PREJUDICE.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, April 27, 2016.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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