Kasse v. Metropolitan Lumber & Hardware, Inc. et al
Filing
67
ORDER granting 22 motion for summary judgment. Signed by US Magistrate Judge Silvia Carreno-Coll on 9/30/2016. (VCC)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
HÉCTOR KASSE,
Plaintiff,
v.
CIV. NO.: 14-1894 (SCC)
METROPOLITAN LUMBER,
Defendants.
OPINION AND ORDER
Plaintiff Héctor Kasse, a 67-year old employee of National
Lumber & Hardware, Inc., sued his employer alleging
discrimination on the basis of age under the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621
et seq., and Puerto Rico’s Law No. 100 of June 30, 1959, as
amended, (“ Law 100"), and Law No. 80 of May 30, 1976 (“Law
KASSE v. METROPOLITAN
Page 2
80").1
I. Procedural background
Kasse has been an employee of defendant since 1992. He
has been manager of several of defendant’s stores in Puerto
Rico. On December 10, 2014, he filed suit against Metropolitan
Lumber & Hardware, Inc. (“MLH”) and National Lumber &
Hardware, Inc. (“NLH”)(“defendant”).2 Docket No. 1. He
alleged three causes of action. The first and second causes of
action claim that he suffered discrimination on the basis of his
age and seek relief under the ADEA. The third and last cause
of action alleges discrimination under Law No. 100. On
January 7, 2015, plaintiff amended the complaint, Docket No.
5.
Metropolitan moved for summary judgment. Docket No.
22. Plaintiff opposed the request. Docket No. 26. On October
31, 2015, plaintiff filed a supplemental memorandum in
1.
Though plaintiff included Law No. 80 in the Introduction portion of the
Complaint, he made no specific allegations under Law No. 80, which
deals with unjustified dismissals.
2.
Plaintiff sued both Metropolitan Lumber & Hardware, Inc. And
National Lumber & Hardware, Inc., but in its Answer to the Amended
Complaint, Docket No. 10, Metropolitan averred that National Lumber
is a d/b/a.
KASSE v. METROPOLITAN
Page 3
support of his opposition to motion for summary judgment.
Docket No. 32. On November 11, 2015, Metropolitan filed a
reply to motion for summary judgment. Docket No. 37.
While the motion for summary judgment was pending,
plaintiff filed a motion asking the court to strike several
statements included in defendant’s statement of uncontested
facts (“SUF”), Docket No. 30. Metropolitan opposed, Docket
No. 40, and filed a like-motion to strike statements from
plaintiff’s declaration under penalty of perjury attached to the
motion for summary judgment. Docket No. 41. Plaintiff filed a
response. Docket No. 47. Metropolitan replied. Docket No. 57.
By Order dated August 15, 2016, Docket No. 59, the court
denied the motion at Docket No. 30 and granted in part, and
denied in part, the motion at Docket No. 41.
II. Standard
Summary judgment may be granted when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986)(If a party “fails to make a showing sufficient to establish
KASSE v. METROPOLITAN
Page 4
the existence of an element essential to the party’s case, and on
which that party will bear the burden of proof at trial,”
summary judgment is proper.) The court must examine the
record in the light most favorable to the nonmovant and
indulging all reasonable inferences in the nonmovant’s favor.
Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.
1994).
In its review of the record, the court must refrain from
engaging in an assessment of credibility or weigh the evidence
presented. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 150 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250–251 (1986)(“Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge.”).
A party opposing a properly supported motion for
summary judgment, “may not rest upon the mere allegations
or denials of his pleading, but ... must set forth specific facts
showing that there is a genuine issue for trial.“ Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)(quoting Fed. R. Civ.
P. 56(c)). The party cannot rest on his/her own allegations
without “any significant probative evidence tending to support
the complaint.” Id. at 249.
KASSE v. METROPOLITAN
Page 5
Moreover, pursuant to Local Rule 56 of the United States
District Court for the District of Puerto Rico, a party opposing
a
motion
for
summary
judgment
must
submit
a
counter-statement, which “shall admit, deny or qualify the
facts by reference to each numbered paragraph of the moving
party's statement of material facts and unless a fact is admitted,
shall support each denial or qualification by a record citation.”
D.P.R.R. 56(c). Properly supported facts contained in an
statement of uncontested facts shall be deemed admitted
unless controverted in the manner prescribed by the local rule.
D.P.R.R. 56(e).
III. Factual Findings
The following factual findings are taken from the parties’
statements of uncontested facts (“SUF”) and supporting
documentation. Upon reviewing the record, the court finds the
following facts as undisputed:
Background facts about Kasse’s employment
1. Metropolitan Lumber & Hardware, Inc. is a chain of
hardware stores throughout Puerto Rico.
2. Plaintiff Kasse began working for defendant on March 2,
1992.
3. Initially, Kasse helped managers on their days off and
KASSE v. METROPOLITAN
Page 6
covered for managers during their vacations.
4. Around 1993, Kasse was assigned to work in the
Levittown store as Store Manager.
5. Kasse was later transferred to the Arecibo store, where
he remained for 15 years.
6. In 20006, Kasse was demoted from the position of Store
Manager to Assistant Manager, and transferred to the La
Cerámica store. Kasse maintained his same salary.
7. Metropolitan claims that Kasse was demoted due to
performance deficiencies.
8. In 2008, Kasse was promoted to Manager of the Hato
Tejas store in Bayamón. Kasse maintained his same salary.
9. On March 10, 2009, Kasse was transferred to the Manatí
store to serve as its Manager. Kasse maintained his same
salary.
Events that transpired at the Manatí store
10. During the time Kasse was Store Manager of the Manatí
store,
the
store’s managerial structure
consisted,
in
hierarchical order, of the Store Manager, the Assistant
Manager and the Front End Supervisor, who was in charge of
the cashiers.
11. At the time relevant to this case, the Assistant Manager
KASSE v. METROPOLITAN
Page 7
of the Manatí Store was Marisela Miranda (“Miranda”) and the
Front End Supervisor was Magdalis Muñoz (“Muñoz”).
12. Kasse was Muñoz’ direct supervisor.
13. Kasse sometimes delegated to Muñoz the functions of
making the work schedules for the floor employees and the
function of distributing the Employee Handbooks to the store
employees.
Facts related to the investigation that led to plaintiff’s
transfer
14. In November 2011, the Human Resources Department
received a complaint from 15 employees of the Manatí store
about Muñoz, which led to an investigation conducted by
Human Resources.
15. At that time, Kasse was advised about the reason for the
investigation that was being carried out.
16. After the 2011 investigation, Kasse did not receive any
complaints about Muñoz.
17. After that investigation, Kasse did not communicate
with Human Resources regarding Muñoz, he did not notify to
the Human Resources Department any issue regarding Muñoz
and he did not seek guidance or assistance regarding
managing employee complains regarding Muñoz.
18. In May 2013, Human Resources received another
KASSE v. METROPOLITAN
Page 8
complaint. According to the Complaint, the employee was
dissatisfied with management and their lack of supervision of
Ms. Muñoz.
19. On May 22, 2013, Metropolitan sent Kasse a letter
stating that he was not complying with the parameters the
company expected in terms of marketing and management.
20. On August 6 and 27, 2013, Nydia Figueroa, from the
Human Resources Department, received a call from a new
cashier in the Metropolitan store in Manatí with concerns
about her work and complaining about an alleged hostile work
environment in the store.
21. Figueroa consulted the situation with Román, Human
Resources Director, and began an investigation regarding the
complaint.
22. According to Metropolitan’s Employee Manual, any
employee who complains of discrimination or sexual
harassment must file a written complaint with the Human
Resources department. No verbal complaints will be accepted.
23. On September 11 and September 25, 2013, Figueroa
interviewed employees who worked at the Manatí store in
different areas, including the warehouse, the sales floor and
cashiers.
KASSE v. METROPOLITAN
Page 9
24. According to Figueroa, the interviews revealed that
there was a general discontent among the store employees
regarding the store’s Front End Supervisor and there were
complaints that she made offensive comments to employees,
that she used the work schedules to penalize employees, and
that there was no confidentiality regarding employees’
personal situations, among other complaints.
25. Based on the investigation, Figueroa arrived to several
conclusions regarding how employees felt about the Front End
Supervisor and the store’s management.
26. Kasse admitted that, prior to the 2011 investigation, the
employees complained to him about Muñoz’ treatment and the
manner in which she addressed them.
27. Kasse stated during his deposition that he had doubts
about Muñoz being a good Front End Supervisor because of
the way she sometimes treated employees which, in his mind,
was not correct.
28. Figueroa conveyed the results of the investigation to
Román.
29. On October 4, 2013, Kasse received a letter signed by
Angel Roman, Director of Human Resources, stating that he
was being reassigned to the position of Assistant Manager of
KASSE v. METROPOLITAN
Page 10
the Carolina store.
30. During the investigation, Metropolitan did not suspend
Kasse.
31. On October 20, 2013, Kasse was transferred to the
Carolina store as Assistant Store Manager.
32. After the 2013 investigation, Muñoz was transferred to
the Morovis store and her functions as Front End Supervisor
were taken away.
33. After the investigation, the Assistant Store Manager of
the Manatí store, Miranda, was transferred to the Quebradillas
store.
34. Miranda was born in the year 1977, and Muñoz was
born in the year 1972.
35. Kopel was born in the year 1948 and Román was born
in the year 1961.
36. Steven Kopel, General Manager and son of Israel Kopel,
is younger than Kasse.
37. In October 2013, Richard Hernández was assigned to
work as the Store Manager for the Manatí store. Hernández
was born in 1971. He has held several positions in National
Lumber affiliated companies since 1989.
38. On or around May 2015, Kasse was appointed Store
KASSE v. METROPOLITAN
Page 11
Manager of the Carolina Store, position he holds today,
earning $550 per week plus .50% of store sales in commissions,
paid on a monthly basis.
IV. Analysis
According to Kasse, his complaint was motivated by an
incident that took place on October of 2013. On October 9,
2013, he met with Angel Roman, Director of Human Resources,
who allegedly informed him that he was being demoted, from
Manager of the Manatí store, to Assistant Manager of the
Carolina store. Mr. Roman told Kasse that the company
understood that he was not performing adequately as
Manager. On October 21, 2013, Kasse began to work as
Assistant Manager in the Carolina store. Kasse further avers
that his former position was given to a 32-year-old employee
with less seniority and less experience than him.3 Kasse states
that his removal was part of a bigger scheme within the
company to replace older employees with younger ones.
Docket No. 1.
Metropolitan counters that Kasse has failed to establish a
prima facie case of discrimination and, most importantly, has
3.
In fact, the person who replaced Kasse was born in 1971, making him
42 at the time, not 32.
KASSE v. METROPOLITAN
Page 12
been unable to prove that age was the “but-for” cause of his
transfer. Whoever seeks relief under the ADEA bears the
“burden of proving that [her] years were the determinative
factor in [her] discharge, that is, that [she] would not have been
fired but for [her] age.” Freeman v. Package Machinery Co., 865
F.2d 1331, 1335 (1st Cir.1988). This showing must be made by
a preponderance of the evidence. Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 177-78 (2009). In fact, even when
plaintiff has produced some evidence that age was a
motivating factor in the decision, the burden of persuasion
does not shift to the employer to show that it would have taken
the action regardless of age. Id. at 180.
Where, as here, there is no direct evidence of
discrimination, a plaintiff must rely on circumstantial evidence
and establish a prima facie case through the burden-shifting
method developed in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Mesnick v. General Electric Co., 950 F.2d 816, 823
(1st Cir.1991). Under McDonnell Douglas, the plaintiff carries
the initial burden of establishing a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802. To establish
a prima facie case of age discrimination requires a showing that
[1] that plaintiff was at least 40 years old at the time of the
KASSE v. METROPOLITAN
Page 13
adverse employment action; [2] that he or she was qualified for
the position but [3] was nevertheless discharged or demoted;
and [4] the employer subsequently filled the position.
Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F. 3d 128, 138 (1st
Cir. 2012); see also, Hebert v. Mohawk Rubber Co., 872 F.2d 1104,
1110 (1st Cir. 1989)(plaintiff must show“(i) the plaintiff was
over the age of forty, (ii) her work was sufficient to meet her
employer's legitimate expectations, (iii) her employer took
adverse action against her, and (iv) the employer sought a
replacement with roughly equivalent job qualifications, thus
revealing a continued need for the same services and skills.”).
Once the plaintiff has done so, an inference of
discrimination is raised. The burden then must shift to the
employer, “to articulate some legitimate, nondiscriminatory
reason” for its actions. McDonnell Douglas, 411 U.S. at 802-03.
If the defendant meets the burden of rebuttal, the plaintiff must
then show that the defendant's articulated reason was
pretextual, and that the prohibited classification actually
motivated the decision. Texas Dept. Of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981).
KASSE v. METROPOLITAN
Page 14
A. The Prima Facie Case
Metropolitan asks the court to grant summary judgment
because Kasse is unable to establish a prima facie case of age
discrimination under the statute. Plaintiff undoubtedly fulfills
the first requirement, as he is 67 years of age. He also fulfills
the adverse employment action4 prong and the fourth prong,
since he was replaced by a younger employee. The only
contentious issue is whether he meets the second prong,
meeting the employer’s reasonable expectations.
According to Metropolitan, Kasse did not comply with his
duty of properly supervising Muñoz, then Front End
supervisor. Docket No. 22-1 at ¶ 9. As Muñoz’ direct
supervisor, he was in charge of evaluating her performance
and taking any disciplinary actions that were needed, which he
did not do. As a result, the company had to address numerous
4.
The only adverse employment action that Kasse identifies in his
complaint is the demotion, from Manager of the Manatí store, to
Assistant Manager of the Carolina one, with the corresponding
reduction in salary and commissions. A demotion has been deemed to
be an adverse employment action. Marrero v. Goya of Puerto Rico, Inc.,
304 F.3d 7, 23 (1st Cir. 2002)(adverse employment actions include
“demotions, disadvantageous transfer or assignments, refusals to
promote, unwarranted negative job evaluations, and toleration of
harassment by other employees.”)(citations omitted).
KASSE v. METROPOLITAN
Page 15
complaints of other employees that felt mistreated by Muñoz
and blamed Kasse’s inaction for “empowering” her. Docket
No. 23.
Kasse, however, presents evidence that contradicts his
alleged shortcomings. He alleges that he was never the direct
object of the investigation; that he did not receive a written or
verbal reprimand; and that his letter of transfer did not adduce
any violations to his job functions, or to the employee manual.
Furthermore, he avers that the ultimate responsibility for
disciplining Muñoz fell on the Department of Human
Resources, not on him. Finally, he stated that during his long
tenure at Metropolitan, spanning over 23 years, he had positive
evaluations and had held managerial positions at different
stores.
I find that, at this stage, plaintiff has shown that he met his
employer’s legitimate expectations and, consequently, has met
all prongs of the prima facie burden. To rule otherwise would
require credibility assessments. Reeves, 530 U.S. at 135. And,
after all, the prima facie showing of discrimination has a “low
standard.” Acevedo-Parrilla, 696 F.3d at 139 (quoting Vélez, 585
F.3d at 447).
KASSE v. METROPOLITAN
Page 16
B. Metropolitan’s alleged nondiscriminatory reason
Next, I examine whether Metropolitan has proffered a nondiscriminatory reason for the adverse employment action.
Defendant avers that Kasse’s transfer was in no way
motivated by a discriminatory animus, but rather was a direct
result of the investigation regarding problems in the Manatí
store. On this point, Metropolitan presented evidence of the
complaints raised by other employees upon which the
investigation was based. Docket No. 22-1 at ¶¶18-23.
Moreover, Metropolitan made part of the record the evidence
that, in addition to Kasse, it also transferred other members of
the managerial team in the Manatí store to other stores. In
addition, Metropolitan provided proof that it had conducted
an investigation based on a similar complaint in 2011 and, as a
result, had sent Kasse a letter advising of the need for
improvement.
In light of the evidence that Metropolitan has proffered, the
court concludes that it met its burden of articulating a
legitimate, non-discriminatory reason for Kasse’s transfer.
Acevedo-Parrilla, 696 F.3d at 140 (“mere questions regarding the
employer's business judgment are insufficient to raise a triable
issue as to pretext”); Palmquist v. Shinseki, 689 F.3d 66, 70 (1st
KASSE v. METROPOLITAN
Page 17
Cir. 2012) (“This is merely a burden of production and, once
such a reason is articulated, it is up to the employee to show
that the proffered reason was pretextual and that retaliation
was the true reason.”).
C. Evidence of Pretext
The court now reaches the last phase of the burden-shifting
analysis. “The ultimate question on summary judgment in [an]
ADEA case is ‘whether or not the plaintiff has adduced
minimally sufficient evidence to permit a reasonable factfinder
to conclude that he was fired because of his age.’” Velez v.
Thermo King de Puerto Rico, Inc., 585 F. 3d 441, 452 (1st Cir. 2009)
(quoting Dávila v. Corporación de P.R. Para La Difusión Pública,
498 F.3d 9, 16 (1st Cir.2007)).
We hold that he does not. First, the court considers Kasse’s
theory that Steven Koppel, son of Metropolitan’s owner, was
engaging in a campaign to replace older employees with
younger ones. There is simply no evidence of such allegations.
For example, Kasse cannot point to any statements made by
decisionmakers that can point to an overall pattern of age
KASSE v. METROPOLITAN
Page 18
discrimination within the company.5
Second, the statistics that Kasse presents are only supported
by two exhibits that consist of a series of tables that do not
reference official numbers released by Metropolitan. Docket
Nos. 26-12 and 26-13. The exhibits do not contain an
explanation of who prepared them, on which date, and for
what purpose. Therefore, I grant little probative weight to the
information contained in those exhibits.
Third, Kasse states that defendant presented “shifting
explanations” for his demotion, thereby evidencing that
Metropolitan did not act for the asserted non-discriminatory
reason. Docket No. 27. But a review of the record proves
otherwise. Metropolitan and its officers have consistently
averred that the reason for Kasse’s transfer to the Carolina
store were the issues that were unearthed as s result of the 2013
investigation. Docket Nos. 22-3 and 25-3.
Though Kasse constantly repeats that Metropolitan’s
explanations are full of “lies” and “mendacity,” plaintiff relies
on nothing more than his own perceptions and beliefs to
5.
“It is settled that statements made by decision makers can evidence age
discrimination.” Kelley v. Airborne Freight Corp., 140 F.3d 335, 347 (1st
Cir.1998).
KASSE v. METROPOLITAN
Page 19
support his claims. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)(“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find for
the plaintiff.”); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990) (The court may ignore “conclusory
allegations,
improbable
inferences,
and
unsupported
speculation”).
With these facts, a rational factfinder could not conclude
that age discrimination was the determinative factor in Kasse’s
demotion. Since Kasse has not adduced any evidence that age
was a motivating factor in the decision, he has not met his
burden under the ADEA. For that reason, summary judgment
is granted and the case is dismissed with prejudice.
D. Kasse’s remaining state law claims
Having found that plaintiff’s claims warrant summary
disposition, the court declines to exercise supplemental
jurisdiction over his remaining state law claims. See Rodríguez
v. Doral Mortgage Corp., 57 F. 3d 1168, 1177 (1st Cir.
1995)(quoting Carnegie–Mellon University v. Cohill, 484 U.S. 343,
350 n.7 (1988) (holding that where federal claims are eliminated
before trial, “the balance of factors to be considered under the
KASSE v. METROPOLITAN
Page 20
pendent jurisdiction doctrine—judicial economy, convenience,
fairness, and comity—will point toward declining to exercise
jurisdiction over the remaining state-law claims.”).
V. Conclusion
Though plaintiff successfully met his burden of establishing
a prima face case of discrimination, he could not surpass the
“but-for” hurdle and, accordingly, his complaint does not
survive summary judgment. His supplemental claims are also
dismissed because the court declines to exercise supplemental
jurisdiction over them.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of September, 2016.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE 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?