Lopez-Rosario et al v. Programa Seasonal Head Start/Early Head Start de la Diocesis de Mayaguez, Inc., et al
Filing
75
OPINION AND ORDER re 46 motion for summary judgment. The Court GRANTS defendant Programa's motion for summary judgment. Accordingly, plaintiffs' claims are DISMISSED WITH PREJUDICE. Judgment shall be entered DISMISSING this case with prejudice. Signed by Judge Francisco A. Besosa on 03/29/2017. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ALJADI LOPEZ-ROSARIO, et al.,
Plaintiffs,
v.
Civil No. 14-1713 (FAB)
PROGRAMA SEASONAL HEAD
START/EARLY HEAD START DE LA
DIOCESIS DE MAYAGUEZ, et al.,
Defendants.
OPINION AND ORDER
BESOSA, District Judge.
Aljadi Lopez-Rosario (“Lopez-Rosario”), with his wife and
son, brought suit against his former employer, Programa Seasonal
Head
Start/Early
Head
Start
de
la
Diocesis
de
Mayagüez
(“Programa”); its board of directors; and its executive director
(collectively
“Programa
Defendants”)
alleging
that
they
took
negative employment action against him in violation of the Age
Discrimination Employment Act of 1967 (“ADEA”), 29 U.S.C. 621 et
seq., 42 U.S.C. §§ 1981, 1983, and 1985, and several Puerto Rico
statutes.
(Docket No. 1.)
The Court granted the Programa’s
motion to dismiss, terminating the case, (Docket Nos. 21, 22), but
reconsidered its decision and reopened the case to allow LopezRosario’s ADEA and Puerto Rico law claims to proceed, (Docket
Civil No. 14-1713 (FAB)
No. 30). 1
2
Before the Court is the Programa defendants’ motion for
summary judgment, (Docket No. 46), plaintiffs’ opposition, (Docket
No. 54), and the Programa defendants’ reply, (Docket No. 62).
For
the reasons below, the Court GRANTS the Programa defendants’ motion
for summary judgment.
SUMMARY JUDGMENT STANDARD
The role of summary judgment is to “pierce the boilerplate of
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.”
Tobin v. Fed. Exp. Corp.,
775 F.3d 448, 450 (1st Cir. 2014) (quoIting Wynne v. Tufts Univ.
Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)).
Viewing the
facts in the light most favorable to the nonmoving party, but
disregarding unsupported and conclusory allegations, McGrath v.
Tavares, 757 F.3d 20, 25 (1st Cir. 2014), “[t]he court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56. A fact is
“material” if it has the potential to “affect the outcome of the
suit under the governing law.”
1
Miranda-Rivera v. Toledo-Davila,
The Court affirmed its decision to dismiss plaintiffs’ federal,
non-ADEA claims because “[t]he ADEA provides the exclusive federal
remedy for age discrimination in employment.” (Docket No. 30 at
p. 10 (quoting Tapia-Tapia v. Potter, 322 F.3d 742, 745 (1st Cir.
2003)).
Civil No. 14-1713 (FAB)
3
813 F.3d 64, 69 (1st Cir. 2016); see also Maldonado-Denis v.
Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994) (stating that
a “material” issue of fact is one that “needs to be resolved before
the related legal issue can be decided”).
A dispute is “genuine”
when it “could be resolved in favor of either party.”
Guerra-
Delgado v. Popular, Inc., 774 F.3d 776, 782 (1st Cir. 2014).
The party moving for summary judgment has the initial burden
of “demonstrat[ing] the absence of a genuine issue of material
fact.”
Campos v. Van Ness, 711 F.3d 243, 247 (1st Cir. 2013).
The party must demonstrate this absence with definite and competent
evidence.
See Maldonado-Denis, 23 F.3d at 581 (citing Mesnick v.
Gen. Elec. Co., 950 F. 2d 816, 822 (1st Cir. 1991)).
identify
documents,
“materials
in
the
electronically
record,
stored
including
information,
It must
depositions,
affidavits
or
declarations, . . . admissions, interrogatory answers, or other
materials” which support its motion.
Flood v. Bank of Am. Corp.,
780 F.3d 1, 7 (1st Cir. 2015) (citing Fed. R. Civ. P. 56(c)).
Once a properly supported motion has been presented, the burden
shifts to the nonmoving party “to demonstrate that a trier of fact
reasonably
could
find
in
[its]
favor.”
Santiago-Ramos
v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)
(internal citation omitted).
“When the nonmovant bears the burden
of proof on a particular issue, [he or] she can thwart summary
Civil No. 14-1713 (FAB)
4
judgment only by identifying competent evidence in the record
sufficient to create a jury question.”
Tobin v. Fed. Exp. Corp.,
775 F.3d 448, 450-51 (1st Cir. 2014).
BACKGROUND
A.
The Programa
The Programa is a not-for-profit corporation incorporated in
Puerto
Rico,
(Docket
No.
60-37),
with
its
main
Hormigueros, Puerto Rico, (Docket No. 70-33 at p. 2).
office
in
The Diocesis
of the Catholic Church of Mayagüez organizes and directs the
Programa and the Bishop of Mayagüez is the president of the Board
of Trustees.
and
Council
(Docket No. 73-33 at p. 4.) The Board of Directors
for
Regulation
Policy,
directorsies, manage the Programa.
33 at pp. 4-7; 73-34 at p. 2.)
both
governing
board
of
(Docket Nos. 60-2 at p. 7; 73-
Carrero is the executive director
of the Programa. (Docket No. 60-3 at p. 2.)
The Programa receives federal funds and uses them to operate
“Head Start Program” pre-school care centers.
(Docket Nos. 60-3
at p. 3; 60-34 at pp. 2-4.) In fiscal year 2009-2010, the Programa
received more federal funding than usual, in the amount of $1.5
million, which was used for payroll, recruitment of new employees,
and other purposes.
55-5 at p. 3.)
(Docket Nos. 55-3 at p. 5; 55-4 at pp. 4-5;
In fiscal year 2012-2013, the Programa’s budget
was $3.8 million.
(Docket No. 55-4 at p. 4.)
In 2013, The
Civil No. 14-1713 (FAB)
5
Programa closed a center in Maricao, which reduced the Programa’s
spending for that year and led to the relocation of employees.
(Docket No. 55-5 at pp. 12-13.)
in Hormigueros in 2015.
The Programa opened a new center
(Docket No. 55-4 at p. 2.)
The Programa
also opened centers in Cabo Rojo and Lajas and hired fifty new
employees.
(Docket No. 55-4 at p. 5.)
In 2015, the Programa
administered one care center in each of five municipalities on the
West Coast of Puerto Rico – San German, Lajas, Las Marias, Añasco,
and Cabo Rojo.
B.
(Docket No. 60-35 at p. 9.)
Lopez-Rosario’s Employment with the Programa
Lopez-Rosario was born on March 26, 1963. (Docket No. 60-3 at
p. 2.)
The Programa hired Lopez-Rosario in 2002.
3 at p. 5.)
in
2002
and
(Docket No. 60-
Lopez-Rosario signed two employment contracts, one
another
driver/handyman.
in
2007,
both
for
the
position
(Docket Nos. 73-35 at p. 1; 73-36 at p. 1.)
of
The
2007 contract states that the “[Programa] is not obligated to renew
this agreement annually with [Lopez-Rosario] if . . . [there is an
i]nsufficiency of Federal funds to continue paying for the position
and salary.”
(Docket No. 73-36 at p. 2.)
Lopez-Rosario performed
duties of a driver and of a handyman. (Docket No. 55-5 at p. 7.)
Also, each year, Lopez-Rosario signed a Change Report for Personnel
Transactions,
which
(Docket No. 73-37.)
listed
his
position
as
driver/handyman.
Civil No. 14-1713 (FAB)
During
his
6
employment,
Lopez-Rosario
received
written
warnings. First, in June 2011, Lopez-Rosario received a warning
emphasizing the importance of maintaining an accurate time-log.
(Docket No. 73-31 at pp. 16-17.)
In August 2011, he received a
letter about the same behavior on three separate occasions.
at p. 15.
Id.
Next, he received three letters, a labor performance
warning, and an incident report for failing to turn in maintenance
reports in November 2011.
Id. at pp. 9-14.
He received another
incident report for failing to attend a training in September 2012.
Id. at p. 8.
Finally, he received three incident reports for
failing to attend a mandatory recreational activity on November
29, 2012.
Id. at pp. 2-7.
Carrero told Lopez-Rosario that he was
“no longer useful as a handyman anymore.”
(Docket No. 55-2 at pp.
6-7.)
C.
Other Employees
The
Promgrama
also
employed
Harry
Muñoz
driver/handyman until he left in June 2013.
(“Muñoz”)
as
a
(Docket Nos. 44 at
p. 5; 55 at p. 3.)
Muñoz is likely over fifty years old.
No. 55-2 at p. 9.)
Additionally, the Programa employs Angel Ruiz
(“Ruiz”) as a handyman.
(Docket No. 55-5 at p. 8.)
(Docket
Ruiz is
younger than Lopez-Rosario and had less years of service than he.
(Docket No. 55-3 at p. 3.)
Ruiz, who is “around his 40s” in age,
Civil No. 14-1713 (FAB)
7
works full-time and is still employed by the Programa.
(Docket
Nos. 55-2 at p. 9; 55-3 at p. 3.)
The driver/handyman and handyman positions are listed in the
Programa’s roster as separate positions.
5-6; 55 at p. 3; 73-18; 73-19.)
(Docket Nos. 44 at pp.
The positions share several
requirements, descriptions, minimum skills, and definitions, but
also have several differences.
Docket No. 73-19.
Compare Docket No. 73-18, with
The handyman position requires the employee to
have basic knowledge and skills of general repairs, carpentry,
masonry,
plumbing,
electricity,
(Docket No. 73-19 at pp. 1-2.)
and
basic
maintenance
tools.
Both positions require the employee
to inspect and identify items requiring maintenance or repair and
to participate and collaborate to correct any deficiency.
Nos. 73-18 at pp. 7-8; 73-19 at p. 2.)
(Docket
The driver/handyman
position also requires training, licensing, and experience driving
heavy or passenger transportation vehicles in order to perform the
additional task of transporting the Programa students and family
members.
D.
(Docket No. 73-18 at pp. 1-3.)
Reduction of Federal Funds and Budget Cuts
In early March 2013, the Programa received a letter from the
National Head Start Office Director informing it that due to a
“sequester” of federal funds, the Programa would need to reduce
its budget by 5.27%.
(Docket Nos. 73-3 at pp. 1-2; 60-35 at p.
Civil No. 14-1713 (FAB)
3; 60-10 at p. 1.)
directors
convened
8
In response, in late March 2013, the board of
an
austerity
committee
and
adopted
its
recommendations on how to cut expenses, including transportation
service expenses.
p. 3.
See Docket Nos. 73-4; 73-5 at p. 2; 73-6 at
On April 9, 2013, the Programa issued a memorandum outlining
the actions it planned to take in order to reduce the operational
budget in response to the sequestration of funds.
60-8 at pp. 1-2.
See Docket No.
In that memorandum, the Programa established its
plans to:
-
Interrupt the contractual relationship with the
renter of the storage facilities in San German from
the month of June to the present[]
-
Reduce by 15% all the corresponding utilities
(materials,
equipment
purchases,
electricity,
water, gas, etc.) (immediately)
-
Reduce hours for personnel that work through
Professional Service Contracts such as Phycologist
[sic], Speech Therapist, Occupational Therapist and
others (immediately)
-
Reduce all the services in regard to transportation
(May 2013)
-
Modify the payment of travel expenses (May 2013)
-
Adjust the schedule of service for children to
making adjustments in the substitutions (June 2013)
-
Adjust the amount of the Christmas bonus to all
employees (December 2013)
Id. at p. 2.
2013 and 2014.
The Programa’s budget was the same for fiscal year
(Docket Nos. 44 at p. 11; 55 at p. 12.)
Of the
Civil No. 14-1713 (FAB)
Programa’s
$3.8
9
million
approximately $150,000.
E.
budget,
the
austerity
measures
saved
(Docket No. 55-4 at p. 27.)
Reduction in Lopez’s Hours
In May 2013, Carrero informed Lopez-Rosario that, due to the
5.27% budget cut, his working hours would be reduced to four hours
per day with a daily schedule of 6:00-8:00 a.m. and 1:30-3:30 p.m.
on
weekdays.
(Docket
Nos.
73-10;
73-11.)
Additionally,
an
unsigned Change Report for Personnel Transactions indicated that
his pay would be reduced from $1,216 to $645 and that his position
was reclassified from driver/handyman to driver.
73-13; 55-4 at pp. 17-18.
See Docket Nos.
The other driver/handyman, Muñoz,
received a similar letter informing him that his hours would also
be reduced to four hours each weekday.
(Docket Nos. 73-38, 73-
39.)
Lopez-Rosario was maintained as a “regular” employee despite
this reduction in hours.
See Docket No. 60-15.
At the meeting
where the Programa notified Lopez-Rosario of the reduction in work
hours and the new assignment of tasks, Lopez-Rosario objected to
the changes and contacted his attorney.
(Docket No. 60-13.)
In June 2013, Lopez-Rosario’s attorney sent a letter to
Carrero requesting that the Programa reconsider its decision to
reduce Lopez-Rosario’s hours and requesting a meeting to discuss
the
matter.
(Docket
No.
60-46.)
Subsequently,
the
parties
Civil No. 14-1713 (FAB)
participated
in
the
10
Programa’s
correspondence and meetings.
grievance
process
through
See generally Docket Nos. 73-14; 73-
15; 73-16; 73-20; 73-21; 73-22; 73-23; 73-24; 73-25; 73-26; 7341; 73-42; 73-43.
F.
February 2014 Events
On February 27, 2014, the Programa gave an orientation to its
employees regarding employment contracts for the new fiscal year.
(Docket No. 73-27.)
All employees were asked to sign their new
contracts on February 28, 2014.
35 at pp. 7-8.)
(Docket Nos. 60-2 at p. 18; 60-
Some employees signed their contracts after
February 28, 2014.
(Docket Nos. 55-1 at p. 8; 60-35 at p. 8.)
The provisions of all of the employees contracts were the same,
except that Lopez-Rosario’s hours were reduced to twenty per week.
(Docket Nos. 60-1; 60-53 at p. 2.)
The contract presented to Lopez-Rosario on February 28, 2014
indicated that he would continue to work twenty hours per week.
(Docket Nos. 44 at p. 22; 55 at p. 12.)
Lopez-Rosario did not
sign the draft of the 2014 employment contract presented to him on
February 28, 2014.
53 at p. 2.)
(Docket Nos. 73-28 at p. 4; 60-35 at p. 7; 60-
He disagreed with the provision that continued his
employment at twenty hours per week.
7-8; 60-53 at p. 2.)
(Docket Nos. 60-35 at pp.
He discussed his decision not to sign the
new contract with Carrero.
(Docket No. 60-2 at pp. 16-18.)
Civil No. 14-1713 (FAB)
G.
11
The Aftermath
Following the events of February 2014, the Programa sent
Lopez-Rosario checks with liquidation payments of his remaining
vacation leave, which Lopez did not cash.
3; 60-3 at p. 24.)
(Docket Nos. 73-29; 73-
The Programa did not hire any employee to
replace Lopez-Rosario as driver/handyman.
pp. 4-6.)
(Docket No. 60-35 at
The Program no longer employs driver/handymen nor does
it provide transportation for its participants.
(Docket Nos. 60-
2 at p. 12; 60-35 at pp. 4-6, 10.)
On
April
23,
2014,
Lopez-Rosario
filed
a
discrimination
charge with the Puerto Rico Department of Labor and Human Resources
Antidiscrimination
Unit
(“ADU”).
(Docket
No.
73-44.)
Thereafter, the EEOC issued a “Right to Sue” letter to LopezRosario.
(Docket No. 60-52.)
DISCUSSION
I.
ADEA Claim – Threshold Issues
Lopez-Rosario 2 seeks relief pursuant to the ADEA.
No. 1.)
refuse
2
(Docket
The ADEA makes it unlawful “for an employer to fail or
to
hire
or
to
discharge
any
individual
or
otherwise
Lopez-Rosario’s wife and son do not have standing pursuant to
the ADEA because they are not employees for purposes of the
statute. See Vicenty-Martell v. Estado Libre Asociado de P.R.,
48 F. Supp. 2d 81, 92-93 (D.P.R. 1999) (Casellas, J.). They may,
however, be eligible for relief pursuant to the laws of Puerto
Rico. See infra Part III.
Civil No. 14-1713 (FAB)
discriminate against any
12
individual
with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual’s age.”
29 U.S.C. § 623(a)(1).
“In order to prevail
in a lawsuit under the ADEA, the plaintiff’s age must actually
have played a role in the employer’s decision-making process and
have had a determinative or motivating influence on the outcome.”
Diaz-Figueroa v. Ricoh P.R., Inc., 661 F. Supp. 2d 140, 153 (D.P.R.
2009) (Pieras, J.) (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 141 (2000); Hoffman v. Applicators Sales &
Serv., Inc., 439 F.3d 9, 17 (1st Cir. 2006)).
The Programa defendants move for summary judgment arguing
that Lopez-Rosario was not constructively discharged or treated
differently than other employees, but rather, that Lopez-Rosario
and all other employees were affected by a decrease in federal
funding to the Programa.
(Docket No. 46 at pp. 1-2, 10-22.)
Before addressing the substantive ADEA claims and arguments, the
Court must first resolve three threshold issues raised by the
Programa
defendants:
administrative
remedies
1)
whether
regarding
plaintiffs
the
board
exhausted
of
their
directors
and
Carrero, 2) whether the board of directors is a legal “person”
that can be sued, and 3) whether the board of directors and Carrero
classify as “employers” pursuant to ADEA.
Id. at pp. 2, 24-26.
Civil No. 14-1713 (FAB)
A.
13
Administrative Exhaustion
The
first
threshold
issue
is
whether
Lopez-Rosario
failed to exhaust administratively his claims against the board of
directors and Carrera 3 when he did not list them by name in the
“name of employer” section of his administrative charge.
(Docket
No. 45 at pp. 24-25.)
Federal civil actions for discrimination pursuant to the
ADEA may not be commenced without first exhausting administrative
remedies, such as the requirement to file a charge with the Equal
Employment Opportunity Commission (“EEOC”) within 300 days of the
alleged
unlawful
practice. 4
Ramirez
Rodriguez
v.
Boehringer
Ingelheim Pharm., Inc., 425 F.3d 67, 78 n.14 (1st Cir. 2005)
(citing Am. Airlines, Inc. v. Cardoza- Rodriguez, 133 F.3d 111,
122 (1st Cir. 1998) (“In ‘deferral states’ . . . such as Puerto
Rico, employees must file charges of unlawful age discrimination
3
Neither party argued that plaintiffs failed to exhaust their
administrative remedies as to the Programa. See Docket No. 30 at
p. 10.
4
Because the requirement to file with the EEOC within 300 days is
not a jurisdictional issue, it is subject to waiver. MartinezRivera v. Puerto Rico., 812 F.3d 69, 77 (1st Cir. 2016) (citing
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94 (1982));
Watlington v. Univ. of P.R., 751 F. Supp. 318, 323 (D.P.R. 1990)
(applying this rule to the ADEA filing timeline in Puerto Rico).
Although the reduction in plaintiff’s hours occurred in May 2013
and the 300 day window based on the filing date of the ADU complaint
is June 28, 2013 to April 23, 2014, neither party argued that the
ADU complaint was filed untimely. Thus, this argument is waived.
Civil No. 14-1713 (FAB)
14
in employment with the EEOC within 300 days ‘after the alleged
unlawful practice occurred.’”)); see also 29 U.S.C. § 626(d).
Due
to a reciprocity provision in the workshare agreement between the
EEOC and the Puerto Rico Antidiscrimination Unit (“ADU”), filing
a timely charge with the ADU satisfies the ADEA filing requirement
to file with the EEOC.
See Rivera-Rivera v. Thyssenkrupp Elevator
Corp., Civ. No. 14-1478, 2015 WL 5719799, at *2 (D.P.R. Sept. 29,
2015) (Casellas,
J.)
(“This
reciprocity
provision
essentially
means that any charge filed with one agency is considered, as a
matter of law, to have been received by the other.”)
Here,
plaintiff Lopez-Rosario filed his charge pertaining to the events
of February 28, 2014 with the ADU on April 25, 2014.
(Docket No.
73-44 at p. 1.)
The filing lists the Programa 5 in the “name of employer”
section, but later mentions “Ms. Myrna Carrero” by name in the
section describing the allegedly discriminatory action.
No. 73-44 at p. 1.)
(Docket
Generally, a party must be named in the EEOC
administrative charge to be subject to suit pursuant to the ADEA.
Miranda v. Deloitte LLP, 922 F. Supp. 2d 210, 221 (D.P.R. 2013)
(Besosa, J.) (citing 42 U.S.C. § 2000e–5(f); McKinnon v. Kwong Wah
5
Specifically, it lists the “Centro de Desarollo Familiar Seasonal
Head State/EHS Diocesis de Mayagüez, Inc.” (Docket No. 60-51 at
p. 1.)
Civil No. 14-1713 (FAB)
15
Rest., 83 F.3d 498, 504 (1st Cir. 1996)).
“An exception exists,
however, when there is a ‘substantial identity’ between a party
named in the EEOC charges and a defendant in the civil action.”
Id.
In Miranda, the First Circuit Court of Appeals applied a
four-prong test developed in Glus v. G. C. Murphy Co., 562 F.2d
880, 888 (3d Cir. 1977) and concluded that “substantial identity”
existed among the defendants because “notice to one will reach the
other and no prejudice will result from naming one party but not
the other.”
Miranda, 922 F. Supp. 2d at 223.
Here, as in Miranda, the mention of Carrera in the
narrative section of the charge is sufficient to put her on notice.
See Miranda, 922 F. Supp. 2d at 222 (“Filed as part of the
administrative
charge,
the
Narrative
is
a
written
factual
statement that should have alerted the employer and all parties
named
in
it
of
the
pending
proceedings
and
investigation.”
(internal citations omitted)).
Also,
similar
to
the
different
divisions
of
the
plaintiff’s employer in Miranda, the Programa’s board of directors
is an “integrated entity” to the extent that notice to the Programa
will reach the board of directors and no prejudice arises from not
naming the board of directors in the charge.
See id. at 221-22.
Thus, the board of directors, although not named in the EEOC
charge, shares a “substantial identity” with the Programa, who is
Civil No. 14-1713 (FAB)
16
named in the EEOC charge.
Rosario
did
exhaust
Accordingly, the Court finds that Lopez-
his
administrative
defendants board of directors and Carrero.
remedies
regarding
The Court declines to
dismiss these defendants for lack of administrative exhaustion.
B.
The Board of Directors as a Legal Entity
The
Programa
defendants
next
argue
that
the
claims
against the board of directors should be dismissed because it is
not a legal person, and thus, cannot be sued.
pp. 2, 25-26.)
(Docket No. 46. at
Pursuant to Federal Rule of Civil Procedure 17(b),
a corporation can sue or be sued based on “the law under which it
was organized.”
Fed.R.Civ.P. 17(b).
pursuant to Puerto Rico law.
The Programa is incorporated
(Docket No. 60-37.)
A board of directors “is not a legal entity separate and
apart from the corporation it directs . . . and, thus, lacks
capacity to be sued under Fed. R. Civ. P. 17(b).”
Heslep v. Ams.
for African Adoption, Inc., 890 F. Supp. 2d 671, 679 (N.D.W. Va.
2012); see also Jules Inc. v. Boggs, 270 S.E.2d 679, 683 (W. Va.
1980) (“The corporate entity does not exist separate from its board
of directors, its officers and its stockholders, for they are the
ones who formulate the actions of the corporation.”); cf. Palazzo
v. Gulf Oil Corp., 764 F.2d 1381 (11th Cir. 1985); In re Colony
Place Co., No. 188-00819, 1989 WL 1113444, at *2 (Bankr. S.D. Ga.
Civil No. 14-1713 (FAB)
Feb. 28, 1989). 6
17
Accordingly, the Court finds that a suit against
the BOARD OF DIRECTORS is a suit against the corporation, the
Programa.
Thus, the ADEA claims against the BOARD OF DIRECTORS
are DISMISSED
as
redundant
with
the
ADEA
claims
against
the
Programa.
C.
ADEA Employers
Finally, the Programa defendants argue that the claims
against Carrero and the board of directors 7 should be dismissed
because
neither
qualifies
definitions in the ADEA.
as
an
“employer”
pursuant
to
the
(Docket No. 46. at pp. 2, 26.) The ADEA
defines an “employer” as:
“[One or more individuals, partnerships, associations,
labor organizations, corporations, business trusts,
legal representatives, or any organized groups of
persons] engaged in an industry affecting commerce who
has twenty or more employees for each working day in
each of twenty or more calendar weeks in the current or
preceding calendar year . . . [or] any agent of such
[individuals, partnerships, etc.] . . . .” 8
29 U.S.C. § 630(b).
6
The Court looks to caselaw from other courts because the issue
of a suit against a board of directors, as opposed to against
individual directors or the corporation, is not common.
7
Having already dismissed the claims against the board of
directors, the Court limits its analysis to the status of Carrero
as an “employer.”
8
Employer also includes some
subdivisions not relevant here.
specified
state
or
political
Civil No. 14-1713 (FAB)
18
The First Circuit Court of Appeals has adopted the Fourth
Circuit
Court
individual
of
Appeals’
liability
for
majority
approach
discriminatory
to
the
employment
issue
of
practices.
Fantini v. Salem State College, 557 F.3d 22, 29-30 (1st Cir. 2009)
(applying the Fourth Circuit Court of Appeals’ ADEA analysis to
Title VII claims).
In Birkbeck v. Marvel Lighting Corp., the
Fourth Circuit Court of Appeals read the inclusion of “any agent
of
such”
in
the
ADEA’s
definition
of
“employer”
unremarkable expression of respondeat superior.”
(4th
Cir.
1994).
The
Court
held
that
to
be
“an
30 F.3d 507, 510
employees
are
not
individually liable pursuant to the ADEA and that finding otherwise
would “be incongruous to” Congress’s decision “to protect small
entities with limited resources from liability.”
Id. (quoting
Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993)).
Pursuant to this line of reasoning, Carrero, a Programa employee,
cannot be held individually liable for violations of the ADEA.
The First Circuit Court of Appeals, however, has created
a
narrow
exception
to
the
general
rule
against
employees’
individual liability for “corporate officers with a significant
ownership interest who had operational control of significant
aspects of the corporation’s day to day functions, including
compensation of employees, and who personally made decisions to
continue operations despite financial adversity during the period
Civil No. 14-1713 (FAB)
of nonpayment.”
19
Chao v. Hotel Oasis, Inc., 493 F.3d 26, 33-34
(1st Cir. 2007) (quoting Donovan v. Agnew, 712 F.2d 1509, 1514
(1st Cir. 1983)).
Here, nothing in the record indicates that
Carrero has a “significant ownership interest” in the corporation
or that she had “ultimate” or “sufficient” control over corporate
matters,
i.e.
supervisor.
beyond
the
level
of
control
of
an
ordinary
See Chao, 493 F.3d at 34 (finding corporation’s
president
could
be
“ultimate
control”
held
over
individually
liable
corporation’s
because
day-to-day
he
had
operations;
Miranda, 922 F. Supp. 2d at 219-20 (finding that the narrow
exception applied to directors and managing partner of corporation
who
held
“sufficient
control
over
operations [and] financial affairs”).
[corporation’s]
day-to-day
In keeping with the First
Circuit Court of Appeal’s concern that this exception be narrow
because “not every corporate employee who exercised supervisory
control should be held personally liable,” Chao, 493 F.3d at 34,
the Court finds that this exception does not apply to Carrero.
Instead, she remains exempt for individual liability pursuant to
the general ADEA rule against individual liability established in
Birkbeck
and
Fantini.
Carrero are DISMISSED.
Accordingly,
the
ADEA
claims
against
Civil No. 14-1713 (FAB)
II.
20
ADEA Claim – Burden Shifting
Having resolved the Programa defendants’ threshold issues,
the Court addresses the substance of their ADEA arguments.
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.
v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).
Gross
When the
plaintiff relies on only indirect evidence of discrimination, as
here, 9 the First Circuit Court of Appeals applies the familiar,
three-stage,
burden-shifting
framework
set
Douglas Corp. v. Green, 411 U.S. 792 (1973).
forth
in
McDonnell
Del Valle-Santana
v. Servicios Legales De P.R., Inc., 804 F.3d 127, 130 (1st Cir.
2015); see also Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d
424, 429-30 (1st Cir. 2000).
9
Plaintiffs argue that there is “ample direct evidence of
discrimination,” Docket No. 54 at p. 8, but present none. “Direct
evidence of discrimination would be evidence which, if believed,
would prove the existence of a fact [in issue] without inference
or presumption.” Earley v. Champion Intern. Corp., 907 F.2d 1077,
1081-82 (11th Cir. 1990) (internal citations and quotations
omitted) “[O]nly the most blatant remarks, whose intent could be
nothing other than to discriminate on the basis of age, . . .
constitute direct evidence of discrimination.” Id. “One example
of direct evidence would be a management memorandum saying, ‘Fire
[employee]—he is too old.’” Id. “But the evidence at issue here,
at most, suggests discrimination, leaving the trier of fact to
infer discrimination based on the evidence; by definition then,
the evidence is circumstantial.” Id.
Civil No. 14-1713 (FAB)
21
First, if a plaintiff establishes the four prongs of a prima
facie age discrimination claim pursuant to ADEA, he creates a
rebuttal
presumption
of
discrimination.
Hidalgo
v.
Overseas
Condado Ins. Agencies, 120 F.3d 328, 334-35 (1st Cir. 1997).
Next,
to overcome the rebuttable presumption that age discrimination
occurred, an employer must produce a legitimate nondiscriminatory
reason for the employment action. Hoffman v. Applicators Sales &
Servs., Inc., 439 F.3d 9, 17 (1st Cir. 2006).
plaintiff
may
prove
that
the
Finally, the
employer’s
legitimate
nondiscriminatory reason was pretext and that age was the true
motivating
factor
for
the
adverse
employment
action.
Soto-
Feliciano v. Villa Cofresi Hotels, Inc., 779 F.3d 19, 23 (1st Cir.
2015).
Defendant 10 Programa argues that plaintiffs’ claims should be
dismissed because 1) plaintiff Lopez-Rosario fails to establish a
prima facie case of age discrimination, 2) defendant Programa
offers a legitimate nondiscriminatory reason for its actions, and
3)
plaintiff
Lopez-Rosario
fails
to
establish
that
defendant
Programa’s legitimate nondiscriminatory reason is merely pretext
for a discriminatory action.
10
(Docket No. 46 at pp. 10-19.)
Having dismissed Carrera and the board of directors, the Programa
is the only remaining defendant. Thus, the Court analyzes only
the ADEA claim against the Programa.
Civil No. 14-1713 (FAB)
A.
22
Prima Facie Case of Age Discrimination
To begin, a plaintiff must make out a prima facie case
of age discrimination by establishing (1) that he was at least
forty years old at the time of the challenged action; (2) that his
work met his employer’s legitimate expectations; (3) that his
employer took adverse action against him; and (4) that his employer
did not treat age neutrally in taking the adverse action.
Del
Valle-Santana v. Servicios Legales De P.R., Inc., 804 F.3d 127,
129-30 (1st Cir. 2015) (citing Brennan v. GTE Gov’t Sys. Corp.,
150 F.3d 21, 26 (1st Cir. 1998)).
Establishing a prima facie case
does not present an onerous burden on a plaintiff, Currier v.
United Techs. Corp., 393 F.3d 246, 254 (1st Cir. 2004) (citing
Cruz–Ramos v. P.R. Sun Oil Co., 202 F.3d 381, 384 (1st Cir. 2000)),
but “the plaintiff is still required to prove the prima facie
elements by a ‘preponderance of the evidence.’”
Del Valle-Santana
v. Servicios Legales De Puerto Rico, Inc., 804 F.3d 127, 131 (1st
Cir. 2015) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981)).
Here, defendant Programa concedes that plaintiff LopezRosario was over forty years of age at the time of the challenged
action and that he suffered an adverse employment action of a
decrease in hours.
(Docket No. 46 at p. 15.)
Civil No. 14-1713 (FAB)
1.
23
Adverse Employment Action
Plaintiff Lopez-Rosario agrees that the decrease in
his hours and accompanying title change and pay decrease was a
negative employment action, (Docket No. 54 at pp. 14-15), but
argues that he suffered another negative employment action –
constructive discharge, id. at 13.
Lopez-Rosario argues that
Carrero’s discriminatory comments and the Programa’s treatment of
him during the internal grievance process left him with no choice
but to leave the company.
Id. at 10-14.
“Adverse employment action, for purposes of the
ADEA,
includes
actual
or
constructive
discharge.”
Torrech–
Hernández v. Gen. Elec. Co., 519 F.3d 41, 50 (1st Cir. 2008).
a
constructive
discharge
claim
in
violation
of
the
For
ADEA,
a
plaintiff 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)).
“The standard is an objective
one; an employee’s subjective perceptions do not govern.”
Lee-
Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 45 (1st
Cir. 2003) (citing Marrero v. Goya of P.R., Inc., 304 F.3d 7, 28
(1st Cir. 2002)).
The United States Court of Appeals for the
Civil No. 14-1713 (FAB)
24
First Circuit has established clearly that “[w]ork places are
rarely idyllic retreats, and the mere fact that an employee is
displeased by an employer’s act or omission does not elevate that
act or omission to the level of a materially adverse employment
action.”
Diaz-Figueroa v. Ricoh P.R., Inc., 661 F. Supp. 2d 140,
152 (D.P.R. 2009) (Pieras, J.) (quoting Gu v. Bos. Police Dept.,
312 F.3d 6, 14 (1st Cir. 2002)).
a.
Carrero’s Comments
Regarding
the
alleged
comments,
for
a
constructive discharge claim, the United States Supreme Court
requires a showing beyond that necessary to establish a hostile
work environment.
Pa. State Police v. Suders, 542 U.S. 129, 134
(2004) (to establish a claim of constructive discharge, a plaintiff
must show that the work environment “became so intolerable that
[his] resignation qualified as a fitting response”); see also
Serrano-Nova v. Banco Popular de P.R., Inc., 254 F. Supp. 2d 251,
263 (D.P.R. 2003) (Dominguez, J.) (quoting Marrero v. Goya of P.R.,
Inc., 304 F.3d 7, 28 (1st Cir. 2002); Landgraf v. USI Film Prods.,
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.”).
Civil No. 14-1713 (FAB)
25
“[U]nder
some
circumstances,
comments
relating to an employee’s age can contribute to the creation of an
intolerable
work
environment
constructive discharge).”
(and
thus
support
a
claim
of
Suarez v. Pueblo Int’l, Inc., 229 F.3d
49, 56 (1st Cir. 2000) (declining to find a constructive discharge
despite employer’s comments that the company needed “new blood”
and employee’s proposals were “tired”); see also Acevedo-Parrilla
v. Novartis Ex-Lax, Inc., 696 F.3d 128, 143 (1st Cir. 2012) (“It
is settled that statements made by decisionmakers can evidence age
discrimination . . . . ”).
“[S]imple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount
to
discriminatory
employment.”
(1998)
changes
in
the
terms
and
conditions
of
Faragher v. City of Boca Raton, 524 U.S. 775, 788
(internal
citations
and
quotations
omitted);
see
also
Suarez, 229 F.3d at 54 (noting that “the ordinary slings and arrows
that
workers
routinely
encounter
in
a
hard,
cold
insufficient to cause a constructive discharge).
world”
are
To establish
that harassment was severe or pervasive enough to rise to the level
of a hostile work environment, courts consider “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
Rios DaSilva v. One, Inc., 980 F. Supp. 2d 148, 161
Civil No. 14-1713 (FAB)
26
(D.P.R. 2013) (Dominquez, J.) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993)).
Here, Carrero told Lopez-Rosario that “[he
was] no longer useful as a handyman.”
7.)
(Docket No. 55-2 at pp. 6-
This single statement fails to establish a hostile work
environment,
let
alone
a
constructive
discharge.
First,
plaintiffs have failed to establish that this comment is in any
way connected to plaintiff Lopez-Rosario’s age.
See Acevedo-
Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 144 (1st Cir.
2012)
(stating
that
employer’s
remarks
were
“arguably
non-
discriminatory” when they “did not allude to [employee’s] actual
age”); see also Gonzalez v. El Dia, Inc., 304 F.3d 63, 70 (1st
Cir. 2002) (quoting Speen v. Crown Clothing Corp., 102 F.3d 625,
636 (1st Cir. 1996) (“[A]mbiguous remarks, tending to suggest
animus based on age, are insufficient, standing alone, to prove an
employer’s discriminatory intent.”)).
Plaintiffs have also failed
to establish that this comment was especially severe or that it
was
one
in
demonstrate
a
string
that
the
of
comments
harassment
sufficiently
was
“so
pervasive
intolerable
to
that
[plaintiff Lopez-Rosario’s] resignation qualified as a fitting
response.”
See Pa. State Police, 542 U.S. at 134; see, e.g.,
Phillis v. Harrisburg Sch. Dist., 430 F. App’x 118, 122 (3d Cir.
2011) (holding employer’s frequent comments, included stating that
Civil No. 14-1713 (FAB)
27
employee’s office had a “musty butt smell” indicative of older
people, did not rise to the level necessary to support a claim of
constructive discharge); Torrech-Hernandez v. Gen. Elec. Co., 519
F.3d
41,
51
(1st
Cir.
2008)
(declining
to
find
constructive
discharge where employer noted that employee “lacked the same
‘energy’ he once had” and “used the term ‘dinosaur’ when describing
[employee’s] operations”);
Rivera-Aponte v. Restaurant Metropol
#3, Inc., 338 F.3d 9, 12 (1st Cir. 2003) (finding that employer
calling
older
employees
“corpses”
and
“imbeciles”
constituted
“stray workplace remarks” insufficient to establish discriminatory
animus); Swidnicki v. Brunswick Corp., 23 F. Supp. 3d 921, 937
(E.D. Ill. 2014) (holding that twenty to thirty comments per day
created a hostile work environment, but did not rise to the level
of
pervasiveness
required
discharge occurred).
for
a
finding
that
a
constructive
Additionally, plaintiffs fail to establish
that the remark was made at a time proximate to the adverse
employment action.
Gonzalez v. El Dia, Inc., 304 F.3d 63, 69-70
(1st Cir. 2002) (noting that failure to identify the time and
context of allegedly ageist remarks weighed against a finding that
the adverse employment action was connected to the remarks).
Thus, Carrero’s single remark is insufficient for a finding of
constructive discharge.
Civil No. 14-1713 (FAB)
b.
28
The Grievance Process
Next, plaintiffs argue that the Programa’s
negative treatment of Lopez-Rosario during the grievance process
in 2013-2014 constitutes constructive discharge. 11
(Docket No. 54
at pp. 10-14 (arguing that “[e]ach time Lopez[-Rosario] attempted
to address the situation, by way of the Programa’s own system for
appeals [or grievances], he was rebuked.”))
Following his notification that the Programa
would be reducing his hours, plaintiff Lopez-Rosario and his
attorney, Wendell Bonilla, sent a letter to Carrero requesting a
meeting to discuss the matter.
See Docket No. 73-40.
Attorney
Roxana Soto-Aguilu, replied to Attorney Bonilla’s letter on behalf
of
the
Programa
and
expressed
the
Programa’s
position
that
plaintiff Lopez-Rosario had failed to exhaust his administrative
remedies.
with
a
See Docket No. 73-41.
letter
to
Carrero
and
Plaintiff Lopez-Rosario replied
other
Programa
staff
members
expressing his disdain with the decrease in his working hours, see
Docket No. 73-14, which the Programa considered a formal grievance
to be addressed by the Grievance Committee of the Policy Council,
see Docket No. 73-16.
On August 14, 2013, Lopez-Rosario met with
Carlos Perez, his direct supervisor and the Transportation and
11
Plaintiffs do not, however, make a developed claim of retaliation
pursuant to 29 U.S.C. § 623(d).
Civil No. 14-1713 (FAB)
29
Facilities Area Coordinator.
See Docket No. 73-17.
Also on that
date, the Grievance Committee met and discussed plaintiff LopezRosario’s grievance.
See Docket No. 73-21.
Following
these
meetings,
the
Grievance
Committee denied Lopez-Rosario’s grievance and sent him a letter
outlining the actions required of him should he choose to appeal
the Grievance Committee’s denial.
31-32.)
(Docket Nos. 73-22; 60-3 at pp.
In response, Lopez-Rosario wrote a letter requesting a
hearing with the Grievance Committee.
at pp. 38-39.)
(Docket Nos. 73-42; 60-3
Father Orlando Rosa, President of the board of
directors, replied, reiterating that Lopez-Rosario had failed to
exhaust the available remedies and that an appeal to the board of
directors was time-barred.
(Docket No. 73-25.)
Upon further
persistence by Lopez-Rosario, see Docket No. 73-43, Father Rosa
agreed to meet with Lopez-Rosario and the board of directors’
attorney at that time, Victor Soto, see Docket No. 73-26.
At the
meeting, Father Rosa explained to Lopez-Rosario why his hours had
been reduced.
Id. at p. 2.
In recounting this process, plaintiffs do not
point to any specific hostile act or statement made in these
letters and meetings.
No age-related comments were made in these
letters or recorded in the minutes of these meetings.
Instead,
plaintiff Lopez-Rosario sought an audience with the Programa’s
Civil No. 14-1713 (FAB)
30
senior personnel and was granted two meetings with key decision
makers.
See
Docket
No.
73-21
(meeting
with
the
Grievance
Committee); Docket 73-26 (meeting with the president of the board
of directors); see also Lee-Crespo v. Schering-Plough Del Caribe
Inc., 354 F.3d 34, 45-46 (1st Cir. 2003) (finding that management
holding a meeting to address the issue undercut employee’s claim
that she was forced to leave).
Additionally, plaintiff Lopez-
Rosario has not established that he was rebuked for actions taken
during the grievance process.
See Docket No. 73-31 at pp. 2-17
(showing that plaintiff Lopez-Rosario’s last formal warning was in
2012, before the Grievance Process began in 2013).
Although
plaintiff Lopez-Rosario has not established that the Programa
mistreated
him
during
the
grievance
process,
his
actions
in
pursuing redress through the Programa’s internal grievance process
weigh somewhat in support of finding that a constructive discharge
occurred.
Hart v. Univ. Sys. of N.H., 938 F. Supp. 104, 109
(D.N.H. 1996).
c.
Other Factors
In determining if a constructive discharge had
occurred, the First Circuit Court of Appeals and the district
courts within the first circuit have also considered several other
factors, including assignment of humiliating or demeaning tasks,
demotions or pay decreases, transfer to a distant city, inquiry
Civil No. 14-1713 (FAB)
into
plaintiff’s
plaintiff’s
work
31
retirement
plans,
performance,
effect
suggestions
employee resign, and threats of discharge.
of
and
environment
requests
Union
Camp
Corp.,
48
F.3d
22,
26-29
Scarborough v. Nestle Waters N. Am. Inc.,
that
Accord Serrano-Cruz
v. DFI P.R., Inc., 109 F.3d 23, 26-28 (1st Cir. 1997);
v.
on
(1st
Greenberg
Cir.
1995);
Civ. No. 07-193, 2008
WL 4787573, *10-13 (D. Me. Oct. 30, 2008); Hart v. Univ. Sys. of
N.H., 938 F. Supp. 104, 107-111 (D.N.H. 1996); Watlington v. Univ.
of P.R., 751 F. Supp. 318, 327 (D.P.R. 1990) (Pieras, J.).
Here,
adverse
employment
in
addition
action,
to
being
plaintiff
an
independent
Lopez-Rosario’s
reclassification, decrease in pay, and decrease in hours are
considered as significant support for his constructive discharge
claim.
See Docket Nos. 73-10, 73-11, 73-13; see also Watlington,
751 F. Supp. at 327 (finding a constructive discharge had occurred
when plaintiff’s pay was reduced significantly).
The fact that
the reclassification did not relocate him to a distant location,
however, weighs against finding a constructive discharge.
See
Greenberg, 48 F.3d at 27-28.
Furthermore,
this
Court
has
found
that
an
employer’s offer of continued employment supports a finding that
no constructive discharge occurred.
Rodriguez v. Sistema San Juan
Capestrano, 939 F Supp. 2d 94, 103-04 (D.P.R. 2013) (Carreño-Coll,
Civil No. 14-1713 (FAB)
Mag. J.).
32
The fact that the Programa never asked about his
retirement plans, or requested that he resign, or threatened to
discharge him weigh against finding a constructive discharge.
Greenberg, 48 F.3d at 28-29; Hart, 938 F. Supp. at 108.
See
To the
contrary, the Programa made him an offer of continued employment,
albeit at the reduced allotment of hours.
See Docket Nos. 60-2
at p. 18; 60-35 at pp. 7-8; 44 at p. 22; 55 at p. 12.
Also, there is no evidence that the position
to
which
plaintiff
Lopez-Rosario
was
reclassified,
included any humiliating or demeaning tasks.
F.3d at 27.
driver,
See Greenberg, 48
The new position, rather, involved some of the tasks
that were required in his original position of driver/handyman.
Finally, no evidence indicates that plaintiff
Lopez-Rosario’s work performance was affected by the environment
at
the
Programa
or
the
actions
of
Programa
employees.
See
Scarborough, 2008 WL 4787573 at *13.
Considering the cumulative effect of Carrero’s
comment the Programa’s actions during the grievance process, and
the other factors, the level of hostility does not rise to that
required for a constructive discharge claim.
See Chavez v. New
Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993))
pervasiveness
are
evaluated
according
to
the
(“Severity and
totality
of
Civil No. 14-1713 (FAB)
33
circumstances . . . .”); Chavera v. Victoria Indep. Sch. Dist.,
221 F. Supp. 2d 741, 749 (S.D. Tex. 2002) (“[A] constructive
discharge claim, like a hostile work environment claim, is based
upon
the
cumulative
effect
of
themselves be actionable.”).
individual
acts,
that
may
not
Thus, plaintiff has failed to set
forth sufficient facts to establish that the Programa’s actions
created working conditions that were so difficult that a reasonable
person would have been forced to resign.
Accordingly, the only
adverse
is
employment
action
at
issue
here
the
reduction
in
plaintiff’s weekly hours and the accompanying decrease in pay and
position reclassification.
2.
Work Met Employer’s Legitimate Expectations
The Programa defendant’s concede for the sake of
argument that plaintiff Lopez-Rosario’s work met their legitimate
employment
expectations.
(Docket
No.
46
at
pp.
15-16.)
Additionally, the Programa defendants do not argue that LopezRosario was fired “for cause,” such as poor performance or negative
employment
actions.
defendants
not
See
conceded
generally
this
prong
id.
of
the
Had
prima
the
Programa
facie
case,
plaintiffs’ properly supported facts would have been sufficient to
overcome defendants’ motion for summary judgment on this issue.
First, Lopez-Rosario worked for the Programa for
approximately twelve years and only received written warnings for
Civil No. 14-1713 (FAB)
34
five instances during that time.
See Docket No. 73-31 at pp. 2-
17; see, e.g., Soto-Feliciano v. Villa Cofresi Hotels, Inc., 779
F. 3d 19, 23-24 (1st Cir. 2015) (finding that seven years without
a
formal,
written
complaint
from
employer
is
sufficient
to
establish that employee met employer’s legitimate expectations);
Melendez v. Autogermana, Inc., 622 F.3d 46, 51 (1st Cir. 2010)
(holding that ten years of employment with only one negative
performance review created triable issue of whether plaintiff met
employer’s expectations); Velez v. Thermo King de P.R., Inc., 585
F.3d
441,
448
(1st
Cir.
2009)
(finding
twenty-four
years
of
employment with no disciplinary infractions to be sufficient to
establish that plaintiff met employer’s legitimate expectations);
see also Diaz-Figueroa v. Ricoh P.R., Inc., 661 F. Supp. 2d 140,
151 (D.P.R. 2009) (Pieras, J.) (noting that even if a plaintiff
demonstrates inconsistent performance and would face an “uphill
battle in seeking to convince a jury that her job performance was
satisfactory,” defendant would still not be entitled to entry of
summary judgment).
Lopez-Rosario’s last warning was in 2012 and
he continued working for the Programa until 2014.
73-31 at pp. 2-7; 73-28.
See Docket Nos.
These two years without reported incident
support that at the time Lopez-Rosario’s employment ended, he was
meeting his employer’s legitimate employment expectations.
Civil No. 14-1713 (FAB)
35
Furthermore, the Programa offered plaintiff LopezRosario an opportunity to continue his employment for the 20142015 fiscal year, demonstrating that it was satisfied with his
performance sufficiently to retain him as an employee.
Thus, had
the
plaintiff
Programa
defendants
Lopez-Rosario
met
not
their
conceded
legitimate
arguendo
employment
that
expectations,
plaintiffs would nonetheless be able to survive summary judgment
on this prong.
3.
Neutral Treatment of Age
The fourth prong of the prima facie case of age
discrimination
requires
a
plaintiff
to
establish
that
“the
employer did not treat age neutrally in taking the adverse action.”
Del Valle-Santana, 804 F.3d at 129-30 (citing Brennan, 150 F.3d at
26); Currier, 393 F.3d at 254. A plaintiff can satisfy the fourth
prong
of
the
prima
facie
case
by
showing
“that
[his]
employer filled the position, thereby showing a continuing need
for the services that he had been rendering,” Melendez, 622 F.3d
at 50, or that he was treated differently than similarly-situated,
substantially-younger employees, Del Valle-Santana, 804 F.3d at
130-31; see also O’Connor, 517 U.S. 308 (1996); Costa Del Moral v.
Servicios Legales de P.R., 63 F. Supp. 2d 165, 168-69 (D.P.R. 1999)
(Casellas,
J.)
(discussing
treatment
of
similarly
situated
applicants in analyzing whether age was treated neutrally).
The
Civil No. 14-1713 (FAB)
36
plaintiff must establish, however, that the employees are similar
in “material respects.”
Goncalves v. Plymouth Cty. Sheriff’s
Dept., 659 F.3d 101, 106 (1st Cir. 2011) (quoting Perkins v.
Brigham
&
(“[A]pples
Women’s
should
Hosp.,
be
78
F.3d
compared
to
747,
751
(1st
apples.”)).
Cir.
In
1996)
evaluating
whether employees or applicants are similarly situated, the First
Circuit
Court
of
Appeals
has
considered
differences
and
similarities in the employees work experience, technical skills,
test
scores,
interview
performance,
record, and work-place conduct.
job
title,
disciplinary
See Adamson v. Walgreens Co., 750
f.3d 73, 81-82 (1st Cir. 2014) (disciplinary record); Goncalves,
659 F.3d at 106-07 (work experience, technical skills, test scores,
interview performance); Rivera Aponte, 338 F.3d at 12 (work-place
conduct
–
physical
altercation
with
co-worker);
Lawrence
v.
Northrop Corp., 980 F.2d 66, 72-73 (1st Cir. 1992) (job title –
associate
program
manager
and
program
manager
not
similarly
the
similarly
situated).
A
plaintiff
also
must
show
that
situated employees were “significantly younger than [he].”
Del
Valle-Santana, 804 F.3d at 131 (citing O’Connor, 517 U.S. at 313
(requiring, for an inference of age discrimination, that the
similarly situated employee be “substantially younger” than the
Civil No. 14-1713 (FAB)
37
plaintiff and disregarding whether the similarly situated employee
was over or under forty years of age)).
Here,
plaintiffs
fail
to
establish
that
the
Programa had a continuing need for the position or that LopezRosario was treated less favorably than two, allegedly similarly
situated employees, Muñoz and Ruiz.
First, although Lopez-Rosario
argues that the Programa had funds available to retain him due to
Muñoz’s resignation, an increase in ARRA funds, and the closure of
the Maricao center, see Docket No. 54 at pp. 9-10, plaintiffs at
no point assert or support that the Programa still had need one or
more full-time driver/handymen or that it hired anyone to fill
that position after Lopez-Rosario’s reduction in hours.
To the
contrary, the record shows that the Programa has not provided
transportation services to its participants since February 2014.
(Docket Nos. 60-35 at pp. 4-6, 10; 60-2 at p. 12.)
Next, plaintiffs introduce evidence regarding two
other employees that may be similarly situated to Lopez-Rosario.
(Docket Nos. 55-2 at p. 9; 55-3 at p. 3.)
Testimony about employee
Muñoz shows that he was similar in age to Lopez-Rosario and shared
the same job title, driver/handyman.
60-3 at p. 2.)
(Docket Nos. 55-2 at p. 9;
The record also indicated that his hours were
reduced to twenty per week at the same time that Lopez-Rosario’s
hours were reduced.
See Docket Nos. 73-38; 73-39; cf. Marcano-
Civil No. 14-1713 (FAB)
38
Rivera v. Pueblo Int’l, Inc., 232 F.3d 245, 252 (1st Cir. 2000)
(stating
that
similarly
situated
employees
outside
of
the
protected class were not treated differently because all employees
in the clerk position were reclassified at the same time).
Thus,
because Muñoz suffered a reduction in hours at approximately the
same time that Lopez-Rosario did, he was not treated more favorably
than Lopez-Rosario.
Plaintiffs
also
introduce
evidence
employee Ruiz, who is younger than Lopez-Rosario.
did not reduce the Ruiz’s hours.
regarding
The Programa
(Docket No. 55-2 at p. 9.)
This
favorable treatment is irrelevant, however, because plaintiffs
fail to establish that Ruiz and Lopez-Rosario were similarly
situated or that Ruiz is substantially younger than Lopez Rosario.
To
begin
with,
Ruiz
occupied
the
position
of
handyman, not driver/handyman that Lopez-Rosario and Muñoz held.
See Docket Nos. 73-35 at p. 1; 73-36 at p. 1; 55-5 at p. 8; cf.
Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 144-45
(1st Cir. 2012) (considering identical job titles as a sign that
employees
were
similarly
situated).
Although
the
handyman
position shares some job requirements with the driver/handyman
position; compare Docket No. 73-18, with Docket No. 73-19; the
positions are listed separately in the Programa’s job roster and
differ on several tasks and responsibilities involved.
See Docket
Civil No. 14-1713 (FAB)
39
Nos. 44 at pp. 5-6; 55 at p. 3; 73-18; 73-19; see also LabiosaHerrera v. P.R. Tel.Co., 153 F. Supp. 3d 541, 550-51 (D.P.R. 2016)
(Besosa, J.) (quoting Russell v. Ohio, Dept. of Admin. Servs., 302
Fed. Appx. 386, 391-92 (6th Cir. 2008) (finding that plaintiff and
identified
employee
were
not
similarly
situated
because
they
performed “distinctly different” duties)).
More
dispositive
than
these
factors
is
that
plaintiffs have failed to include anything in the record to show
that plaintiff Lopez-Rosario and Ruiz have similar performance
levels or discipline records.
Adamson, 750 F.3d 73, 82 (1st Cir.
2014) (finding plaintiff and other employees were not similarly
situated when plaintiff had more complaints against him than did
other employee); see also Rivera-Aponte, 338 F.3d 9, 12 (1st Cir.
2003) (finding plaintiff and other employees were not similarly
situated when plaintiff’s physical altercation was more severe
than those of other employees).
In Adamson, the plaintiff and the
other employees were both given final written warnings in response
to misconduct, but Adamson was fired following a second incident.
750 F.3d at 81.
The First Circuit Court of Appeals found that
Adamson was not similarly situated to the other employees because
after he received a final written warning he had a second customer
service incident, whereas the other employees had each only had
one instance of misconduct.
Id. at 81-82.
Here, while the record
Civil No. 14-1713 (FAB)
40
indicates that Lopez-Rosario has received written reprimand for
five incidents, see Docket No. 73-31 at pp. 2-17, nothing in the
record shows that Ruiz has had any disciplinary actions taken
against him.
Finally, plaintiffs have failed to establish that
Ruiz is “significantly younger” than Lopez-Rosario.
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.
See Williams v.
Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000) (finding a threeyear
age
difference
between
plaintiff
and
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).
The First Circuit Court of Appeals has also held
that a plaintiff’s failure to provide the actual age of the
plaintiff
and
the
similarly
situated
employee
precludes
an
inference that the similarly situated employee was “significantly
younger” than plaintiff.
Del Valle-Santana, 804 F.3d at 131; see
also Baralt v. Nationwide Mut. Ins. Co., 251 F.3d 10, 17 (1st Cir.
2001); Delanoy v. Aerotek, Inc., 614 F. Supp. 2d 200, 209 (D.P.R.
2009) (Dominguez, J.).
The First Circuit Court of Appeals in Del
Civil No. 14-1713 (FAB)
41
Valle-Santana found plaintiff’s failure to include the actual ages
of the employees precluded “an inference of age discrimination”
and ultimately demonstrated that the plaintiff “ha[d] failed to
carry her [] burden to produce evidence supporting a prima facie
case for age discrimination.”
Id. at 131.
Here, as in Del Valle-
Santana, plaintiffs have failed to provide the other employee’s,
Ruiz’s,
actual
age.
The
Court,
independently
reviewing
the
record, was able to ascertain Lopez-Rosario’s date of birth to be
able to calculate that at the time of the reduction of hours in
May 2013, Lopez-Rosario was fifty years old.
p. 2.)
(Docket No. 60-3 at
Programa employee Lisette Ortiz-Ramos describes Ruiz as
being “around his 40s” in age, (Docket No. 55-3 at p. 3), but gives
no specific age.
Because plaintiffs failed to provide the actual
age of the similarly situated employee, Ruiz, they have “failed to
carry [their] burden to produce evidence supporting a prima facie
case
for
age
discrimination.”
See
Del
Valle-Santana,
804 F.3d at 131. 12
12
Had plaintiff provided Ruiz’s actual age, the Court would then
consider
whether
the
age
difference
was
significant
or
insignificant
provided
the
three-to-seven
year
timeline
established in Williams and Velez.
Williams, 220 F.3d at 20;
Velez, 585 F.3d 441, 444, 450 n.5.
Civil No. 14-1713 (FAB)
B.
42
ADEA Conclusion
Although Lopez-Rosario has established the first three
prongs of the prima facie case of age discrimination – that he was
over forty years of age when he suffered the adverse employment
action of a reduction in hours despite meeting his employers
expectations, he failed to satisfy the fourth prong.
Rosario
failed
to
show
that
the
Programa
did
not
Lopez-
treat
age
neutrally in reducing his hours because he failed to establish
that the employer had a continued need for the service hours or
that it treated other similarly situated employees differently
than he.
Because Lopez-Rosario fails to meet his initial burden
of establishing a prima facie case of age discrimination, the Court
does not reach the plaintiffs’ arguments regarding the defendants’
legitimate nondiscriminatory reason. 13
GRANTS
the
Programa
defendants’
As a result, the Court
motion
for
summary
judgment
regarding plaintiff’s ADEA claims, and those claims are DISMISSED
WITH PREJUDICE.
13
Defendant asserted, as a legitmate nondiscriminatory reason,
that Lopez-Rosario’s reduction in hours was caused by decreased
federal funding, also known as a “sequester” of funds. (Docket
No. 46 at pp. 10-11.)
Civil No. 14-1713 (FAB)
43
III. Puerto Rico Law Claims 14
A.
Law 100 Claim
Puerto Rico Law 100 creates civil liability for “[a]ny
employer who discharges, lays off or discriminates against an
employee . . . because of his/her age . . . .”
tit. 29, § 146.
P.R. Laws Ann.
“While Law 100 and the ADEA allocate the burdens
of proof in different ways, “the burden of proof on the ultimate
issue of discrimination remains with the plaintiff in both causes
of action.”
F.3d
379,
Rivera Rodriguez v. Sears Roebuck De P.R., Inc., 432
383
n.2
quotations omitted).
(1st
Cir.
2005)
(internal
citations
and
“[T]he merits of the age-discrimination
claims asserted under the ADEA and Law 100 are coterminous.”
Gonzalez v. El Dia, Inc., 304 F.3d 63, 73 n. 7 (1st Cir. 2002)
(internal citation omitted)).
To establish a prima facie case
pursuant to Law 100, a plaintiff must 1) prove that “he was
actually or constructively discharged, and 2) alleg[e] that the
decision was discriminatory.”
Villeneuve v. Avon Prod., Inc., 111
F. Supp. 3d 112, 117 (D.P.R. 2015) (quoting Baralt v. Nationwide
14
Although the Legislative Assembly of Puerto Rico recently passed
the “Ley de Transformación y Flexibilidad Laboral,” 2017 P.R.
Laws 4, which affected several Puerto Rico labor laws including
Law 80 and Law 100, Lopez-Rosario was employed by the Programa
before this law was enacted, and thus its changes do not apply to
him or his claims before this Court. See 2017 P.R. Laws 4 (Article
1.2).
Civil No. 14-1713 (FAB)
44
Mut. Ins. Co., 251 F.3d 10, 16 (1st Cir. 2001)).
Here,
establish
that
as
analyzed
plaintiff
constructively discharged.
above,
plaintiffs
Lopez-Rosario
was
have
failed
actually
See supra Part II(A)(1).
to
or
Therefore,
the Court GRANTS summary judgment to defendant Programa regarding
plaintiffs’
Law
100
claims.
Plaintiffs’
Law
100
claims
are
DISMISSED WITH PREJUDICE.
B.
Law 80 Claims
Puerto Rico Law 80 states that “[e]very employee in
commerce, industry, or any other business or work place . . . in
which he/she works for compensation of any kind, contracted without
a fixed term, who is discharged from his/her employment without
just cause, shall be entitled to receive from his/her employer,”
the salary he/she earned, an indemnity payment, and a progressive
compensation payment.
P.R. Laws Ann. tit. 29, § 185a.
“Good
Cause” or “Just Cause” occurs when an employee exhibits improper
conduct, attitude, or performance or when an employer closes,
reduces, or reorganizes operations.
§ 185b.
P.R. Laws Ann. tit. 29,
Pursuant to Law 80, a plaintiff must “prove that he was
discharged and allege a lack of justification for it.
Ramos-
Santiago v. WHM Carib, LLC, Civ. No. 14-1087, 2017 WL 1025784, at
*5 (D.P.R. 2017) (Casellas, J.).
Civil No. 14-1713 (FAB)
Defendants
45
request
that
the
Court
dismiss
plaintiffs’ claims, including their Law 80 claims.
all
of
(Docket No.
46 at p. 28 (requesting that the Court “enter summary judgment
dismissing
the
instant
case,
in
its
entirety”).)
Because
plaintiffs failed to establish that Lopez-Rosario was discharged,
see supra Part II(A)(1), they have not met their initial burden
pursuant to Law 80.
The Court therefore GRANTS defendant’s motion
for summary judgment regarding plaintiffs’ Law 80 claim.
Thus,
plaintiffs’ Law 80 claims are DISMISSED WITH PREJUDICE.
C.
Article 1802 Claim
Article 1802 of the Puerto Rico Civil Code, Puerto Rico’s
general tort statute, states that “[a] person who by an act or
omission causes damage to another through fault or negligence shall
be obliged to repair the damage so done.”
§ 5141.
P.R. Laws Ann. tit 31,
Plaintiffs may not obtain recovery from damages pursuant
to article 1802 if the conduct that forms the basis for their
article 1802 claim is addressed expressly by specific labor or
employment legislation.
Franceschi-Vázquez v. CVS Pharmacy, 183
F. Supp. 3d 333, 344-45 (D.P.R. 2016) (Besosa, J.) (cataloguing
cases).
Because plaintiffs fail to allege, let alone support in
the record, 15 negligent conduct aside from the conduct that is the
15
Plaintiffs fail even to separate their claims or describe which
facts support each claim. See Docket No. 1.
Civil No. 14-1713 (FAB)
46
basis of their discrimination claims, see Docket No. 1, the Court
GRANTS summary judgment on plaintiff Lopez-Rosario’s article 1802
claims.
Plaintiff
Lopez-Rosario’s
article
1802
claims
are
DISMISSED WITH PREJUDICE.
Article 1802 does allow derivative claims for family
members.
Pursuant to article 1802, the Puerto Rico Supreme Court
permits relatives of victims of discrimination in employment to
bring damage claims seeking compensation for the harm that they
suffered
as
a
result
of
relative, the employee.
the
discrimination
endured
by
their
See P.R. Laws Ann. tit. 31, § 5141;
González Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 318
(1st Cir. 2009) (citing Santini Rivera v. Serv. Air, Inc., 137
P.R. Dec. 1, 14 (1994)); Pagán–Colón v. Walgreens of San Patricio,
Inc., 697 F.3d 1, 15–16 (1st Cir. 2012); Albite, 5 F. Supp. 3d
at 198.
Because “a cause of action under Article 1802 ‘is wholly
derivative . . . its viability is contingent upon the viability of
the underlying employment discrimination claim.’”
Costa-Urena v.
Segarra, 590 F.3d 18, 30 (1st Cir. 2009) (quoting Caban Hernandez
v. Philip Morris USA, Inc., 486 F.3d 1, 12–13 (1st Cir. 2008)).
Thus, “if the principal plaintiff’s claim fails, so too does the
relative’s derivative claim.”
Gonzalez Figueroa v. J.C. Penney
P.R., Inc., 568 F.3d 313, 320 (1st Cir. 2009) (citing Maldonado
Rodríguez v. Banco Central Corp., 138 P.R. Dec. 268, 276 (1995)).
Civil No. 14-1713 (FAB)
Here,
plaintiffs’
ADEA,
47
Law
100,
and
Law
80
claims
fail
on
substantive ground, therefore, the Court GRANTS summary judgment
on plaintiffs’ article 1802 claims derived from their ADEA, Law
100, and Law 80 claims and they are DISMISSED WITH PREJUDICE.
CONCLUSION
For the reasons stated above, the Court GRANTS defendant
Programa’s
motion
Accordingly,
Judgment
for
plaintiffs’
shall
be
summary
claims
entered
judgment,
are
(Docket
DISMISSED
DISMISSING
WITH
this
No.
46).
PREJUDICE.
case
with
prejudice.
IT IS SO ORDERED.
San Juan, Puerto Rico, March 29, 2017.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?