Gonzalez-Santiago et al v. Karimar Construction, Inc.

Filing 71

MEMORANDUM AND ORDER re 27 Motion for Summary Judgment. Because genuine disputes of material fact exist regarding plaintiffs' Title VII discrimination claim, defendant's motion for summary judgment, (Docket Nos. 27, 28), is DENIED. Signed by Judge Francisco A. Besosa on 11/29/2016. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
WALESKA
al.,

GONZALEZ-SANTIAGO,

et

Plaintiffs,
Civil No. 15-1239 (FAB)

v.
KARIMAR CONSTRUCTION, INC.,
Defendant.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Waleska Gonzalez (“Gonzalez”) and Maida Baez (“Baez”) brought
suit against Karimar Construction, Inc. (“Karimar”) alleging that
Karimar violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., and Puerto Rico laws 69 and 100 when it
declined to hire them to perform construction work to remodel the
Hector
1.)

I.

Rivera

School

(“Rivera

Project”).

(Docket

No.

Before the Court is Karimar’s motion for summary judgment

regarding the Title VII claims.
considered

it,

plaintiffs’

(Docket Nos. 27, 28.)

opposition,

(Docket

No.

Having

33),

and

defendant’s reply, (Docket No. 37), the Court DENIES defendant’s
motion for summary judgment because genuine issues of material fact
exist and the case must proceed to trial.
I.

Summary Judgment Standard
Summary judgment serves to assess the evidence and determine

if there is a genuine need for trial.

Garside v. Osco Drug, Inc.,

Civil No. 15-1239 (FAB)
895 F.2d 46, 50 (1st Cir. 1990).

2
“The 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).

“At summary judgment, the

judge’s function is not himself or herself to weigh the evidence
and determine the truth of the matter but to determine whether
there is a genuine issue for trial.”

Burns v. Johnson, 829 F.3d 1,

8 (1st Cir. 2016) (internal marks omitted) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
A fact is “material” if it “has the potential to change the
outcome of the suit under the governing law . . . .”

Calero-Cerezo

v. U.S. Dep’t. of Justice, 355 F.3d 6, 19 (1st Cir. 2004).

A

dispute is “genuine” when it “could be resolved in favor of either
party.”

Id.

“Put another way, a ‘genuine’ issue exists if there

is ‘sufficient evidence supporting the claimed factual dispute’ to
require a choice between ‘the parties’ differing versions of the
truth at trial.” Garside, 895 F.2d at 48 (quoting Hahn v. Sargent,
523 F.2d 461, 464 (1st Cir. 1975)).

“Issues are not suitable for

summary judgment if ‘the evidence is such that a reasonable jury
could return a verdict for the nonmoving party’” Martinez-Burgos v.
Guayama Corp., 656 F.3d 7, 11 (2011) (quoting Liberty Lobby, 477
U.S. at 248).
The party moving for summary judgment has the initial burden
of “demonstrat[ing] the absence of a genuine issue of material

Civil No. 15-1239 (FAB)

3

fact” with definite and competent evidence.

Campos v. Van Ness,

711 F.3d 243, 247-48 (1st Cir. 2013) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).
“the

pleadings,

depositions,

It must identify sections of

answers

to

interrogatories,

and

admissions on file, together with the affidavits, if any” which
support its motion.

Id.

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 marks and citation omitted).
“The mere existence of a scintilla of evidence in support of
the [nonmovant]’s position will be insufficient; there must be
evidence

on

which

the

jury

could

reasonably

find

for

the

[nonmovant].” Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20,
25 (1st Cir. 2015) (quoting Liberty Lobby, 477 U.S. at 252).

A

party opposing summary judgment is required to “present definite,
competent evidence to rebut the motion.”

Martinez-Rodriguez v.

Guevara, 597 F.3d 414, 419 (1st Cir. 2010) (quoting Vineberg v.
Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)).

In making this

assessment, the court must “review the record in the light most
favorable to the nonmoving party, drawing all reasonable inferences
in the nonmoving party’s favor.”

Escribano-Reyes v. Prof’l Hepa

Certificate Corp., 817 F.3d 380, 386 (1st Cir. 2016).

Civil No. 15-1239 (FAB)
II.

4

Facts
A.

Karimar and Its Projects
Karimar is the general contractor who was in charge of

the Rivera Project, a “design and build” construction project which
lasted from March 10, 2014 to November 2014.
29-2 at pp. 49-50, 77, 80.)

(Docket Nos. 29-1;

Karimar started the project with four

workers – a mason, a carpenter, a welder, and a heavy machinery
operator – and throughout the duration of the project hired fortytwo employees to work as masons, laborers, carpenters, plumbers,
digger operators,

drivers,

safety

operators,

(Docket No. 29-2 at pp. 78-79, 84-85, 186.)

and

supervisors.

Prior to and during

the duration of the Rivera Project, several lists of applicants for
the project were created.

Id. at pp. 141-46 (list created by the

school’s secretary), 154 (lists created by Felipe Barreto-Bosques;
29-6 at p. 19 (list created by applicants waiting outside the
project.)
B.

Karimar’s Hiring Practices
Karimar employs several “in house” employees that it

moves between projects.

(Docket No. 29-1.)

It often uses “in-

house” employees from previous projects on new projects.
No. 29-2 at p. 69.)

(Docket

If needed for particular projects, Karimar

hires additional workers at the project site.

Id.

Karimar’s “in

house” employees have priority over on-site hires because Karimar
superintendents hiring for projects are required to hire available

Civil No. 15-1239 (FAB)

5

“in house” employees before hiring on-site employees.
No. 29-2 at 67-68.)

(Docket

Twenty-seven “in house” employees performed

work on the Rivera Project.

(Docket No. 29-1.)

Felipe Barreto-Bosques (“Barreto”), a construction worker
who studied engineering, has worked for Karimar as a project
supervisor or superintendent since September 2007. (Docket No. 292

at

pp.

9,

conducting

19-20.)

His

inventories,

duties

include

interpreting

preparing

blueprints

and

budgets,
drawings,

assigning tasks to employees, and hiring employees. Id. at pp. 2123.
Barreto
policy

guidance

received
regarding

verbal
the

recommendations

hiring

of

and

employees,

company

including

instruction to cease hiring employees after a project’s employment
needs are met.

(Docket No. 29-2 at pp. 61-62.)

Barreto also

received instructions and directives via posters and monthly safety
inspector visits regarding sex discrimination, sexual harassment,
and the illegality of employment discrimination based on sex, race,
color, and religion.
project,

had

some

Id. at 75.
discretion

Barreto, as superintendent of a

regarding

the

decision

employees, but did not always have “the last word.”
C.

to

hire

Id. at p. 63.

Plaintiffs
Gonzalez and Baez met in 2012 while working for Cesar

Diaz Construction Company on the Rafael Aparicio Jimenez School
project (“Jimenez Project”) and have since become friends. (Docket

Civil No. 15-1239 (FAB)

6

Nos. 29-3 at pp. 7, 10-11; 29-4 at p. 49.)

The Jimenez Project was

Gonzalez’ first employment as a construction laborer.
29-3 at 10.)

(Docket No.

Baez, on the other hand, has twenty years of

experience in construction.

(Docket No. 29-4 at p. 46.)

Gonzalez’s cousin, Reinaldo Santiago-Gonzalez (“SantiagoGonzalez”), alerted her to the existence of the Rivera Project and
encouraged

her

to

apply.

(Docket

No.

29-3

at

p.

18.)

Subsequently, both Gonzalez, on March 13, 2014, and Baez, on
April 10, 2014, went to the Rivera Project site and spoke with
Barreto in an attempt to procure employment.

(Docket Nos. 29-2 at

pp. 89-90, 161; 29-3 at pp. 15-16; 29-4 at p. 34.)

The parties

disagree on some details of these encounters.
D.

The Gonzalez Meeting
Gonzalez drove her car into the Rivera Project site and

was met by Barreto as she exited it.
29-3 at pp. 20-21.)1

(Docket Nos. 29-2 at p. 89;

According to Gonzalez, Barreto told her that

“he wasn’t[sic] not hiring women, because women [were only hired]
for cleaning dut[ies]” and there was no cleaning required at that
time. (Docket No. 29-3 at p. 22.) Gonzalez informed Barreto that,
although she was willing to perform cleaning duties, she was
seeking employment in construction because she was a laborer.

Id.

Barreto informed her that he would be bringing Karimar employees

1

The parties debate whether driving into the project site violated
safety rules, but fail to establish the relevance of a violation to
plaintiffs’ claims. See Docket Nos. 29 at pp. 4-5; 32 at pp. 3-5.)

Civil No. 15-1239 (FAB)

7

from other sites to staff the Rivera Project and thereafter he
would hire workers from those waiting at the gate, but would not
skip over “all the men” to hire her.

(Docket No. 29-3 at pp. 27,

32, 39, 41.)
According to Gonzalez, Barreto did not tell her that
there were no vacant positions.

(Docket No. 29-3 at p. 24.)

Nor

did he instruct her to wait outside of the project for employment
opportunities or to provide her contact information on an applicant
list.

Id. at 27-28.

Gonzalez did not see anyone waiting outside

of the Rivera Project on March 13, 2014.

Id. at p. 32.

According to Barreto, when Gonzalez informed him that she
was seeking employment on the Rivera Project, he told her that
Karimar was fully staffed for the current stage of the project and
had no vacancies at that time.

(Docket No. 29-2 at pp. 95-96.)

Barreto told Gonzalez that she could wait with the 10-15 other
applicants who were also seeking employment on the project and who
had been coming to the project each morning since the project’s
beginning seeking employment.

Id. at pp. 99-100, 103.

Barreto

told her that the applicants waiting outside the Rivera Project
would be given priority to work at the project.

Id. at 99-100.

At

no point did Barreto tell Gonzalez that women were only used for
cleaning duties after construction projects because Barretto knows
that that statement would be sex discrimination because women are

Civil No. 15-1239 (FAB)

8

entitled to the same laborer and mason jobs as men.

(Docket

No. 29-2 at pp. 98-99.)
Barreto and Gonzalez spoke for approximately four or five
minutes regarding the Rivera Project.

(Docket No. 29-2 at p. 99.)

Barreto also signed an unemployment document for Gonzalez.

Id. at

pp. 116-117; Docket No. 29-3 at p. 25.
E.

The Baez Meeting
According

to

Barreto,

upon

arriving

at

the

Rivera

Project, Baez first spoke with Hector Irizarry (“Irizarry”), the
project’s safety inspector.

(Docket No. 29-2 at pp. 161-162.)

Irizarry escorted Baez into Barreto’s office and informed Barreto
of Baez’s desire to speak with him.

Id. at pp. 162, 164.

When

Baez informed Barreto that she was seeking employment on the Rivera
Project, Barreto told her that Karimar was not recruiting personnel
at that time.

Id. at pp. 162-63.

Barreto told her that she could

wait “with everybody else who was outside” of the project and that
the applicants waiting outside of the project would have priority
if positions became available.

Id. at p. 163.

Baez asked Barreto

if there were any women working on the Rivera Project, and Barreto
indicated that there were none.

Id. at pp. 170-171.

He did not,

however, tell Baez the he did not have to hire women.
p. 170.

Id. at

The two spoke for approximately four or five minutes

regarding the Rivera Project.

Id. at p. 175.

Barreto also told

Baez that she could give her information to Irizarry and then

Civil No. 15-1239 (FAB)

9

Irizarry escorted Baez to the Rivera Project’s gate.

Id. at

pp. 164, 177.
According to Baez, when she arrived at the Rivera Project
at

7:00

a.m.

entrance.

on

April

20,

2014,

she

waited

(Docket No. 29-4 at pp. 34-35.)

at

the

project

Another applicant who

was also waiting outside of the project instructed her to go into
the project to speak with the engineer because Baez would “have
more probabilities because [she is] a woman” and may have been able
to obtain employment.

Id. at 35.

Upon entering the project and

Barreto’s office, Baez informed Barreto that she was seeking
employment.

Id. at p. 39.

Barreto replied “there wasn’t work in

construction,” because “women weren’t necessary in a construction
project.”

Id. at pp. 39-40.

Barreto also said that at that time

he did not have a reason to hire her.

Id. at p. 47.

Baez asked

Barreto if there were any women working on the Rivera Project, and
Barreto indicated that there were not.
32 at p. 13.)

(Docket Nos. 29 at p. 13;

Baez did not leave her contact information with

Barreto because she was not aware of the existence of a potential
employee list.

(Docket No. 29-4 at p. 40.)

Nor did Baez wait

outside the Rivera Project because Barreto never instructed her to
do so.

Id. at p. 41.

Baez recounts that on April 10, 2014, there

were no women waiting outside of the Rivera Project.

Id.

She

does, however, recall that women from Juana Diaz had previously
been waiting there.

Id. at p. 42.

Civil No. 15-1239 (FAB)
F.

10

Other Applicants and Hired Employees
Throughout the duration of the Rivera Project, employees

were hired from previous projects, from applicants waiting outside
of the project whose names appeared on applicant lists, and from
other sources.
Santiago-Gonzalez, who had been hired by Karimar to work
on the Rivera Project as a welder, (Docket No. 29-6 at pp. 9, 1314), recalls that several people from a previous project, the
Jimenez Project, sought employment by waiting in front of the
Rivera Project.

(Docket No. 29-6 at pp. 15-16.)

He stated that

after showing up early in the morning and waiting for several days,
some of the people at the gate were hired to work on the Rivera
Project.

Id. at p. 16.
Applicant Jordan-Irizarry, who unsuccessfully sought work

on the Rivera Project in April 2014, recounts that he saw several
people

outside

opportunities.

of

the

project

awaiting

employment

(Docket No. 29-5 at pp. 18, 24-25.)

He testified

that between eight and ten people waited there each day.

Id. at

p. 24.
From the lists compiled by several sources, including
applicants waiting outside the Rivera Project, Barreto hired six or
seven employees.

(Docket No. 29-2 at pp. 158-160.)

Two women

appear on the applicant lists, Gloria Nuñez-Badea and Franchesca
Hernandez-Aponte, but Baretto did not hire either of them. (Docket

Civil No. 15-1239 (FAB)

11

No. 29-2 at pp. 156-57.)
applicant lists.

Neither Baez or Gonzalez appear on the

Id.

Other applicants hired did not appear on the lists.
(Docket No. 29-2 at p. 160.)

Twelve men, listed below, were hired

to work on the Rivera Project between March and September 2014.
(Docket No. 29-2 at pp. 127-28, 134-39.)
Name

Date Hired
(2014)

Jose Sanchez-Rivera

Position

September 9

Driver

April 14

Cement Mason

Alfredo Rosado-Garcia

October 2

Laborer

Derlin Cordero-Galloza

March 19

Laborer

Efrain Rivera-Hernandez

May 12

Carpenter

Hector Bonilla-Bonilla

August 7

Laborer

Jose Vazquez-Cancela

April 18

Laborer

Natalio Bermudez-Roman

September 11

Laborer

Paul Trinidad-Santana

March 27

Laborer

Ruben Hernandez-Andujar

April 8

Laborer

Xavier Caraballo-Mendez

March 25

Laborer

Adalberto Flores-Maldonado

Edwin Rosa-Ramos
According

April 13
to

Karimar

Administrator

Laborer
Hector

Arcelay-

Acevedo, no employee, male or female, was hired on March 13 or
April 10, 2014 (Docket No. 29-1), the dates when Gonzalez and Baez
requested employment.

Civil No. 15-1239 (FAB)
G.

12

Antidiscrimination Unit Complaints
Following their attempts to obtain employment at the

Rivera Project, both Gonzalez and Baez filed complaints with the
Antidiscrimination Unit (“AU”) on April 10, 2014. (Docket No. 29-3
at p. 29.)
In her complaint to the AU, Gonzalez stated that:
Mr. Barreto told me that he could not employ me, because
they were not on cleaning duty, and the project was
beginning. I told him that I was not a cleaning lady,
that [sic], but that in fact if I had to clean, I would
do so. But that I was a working woman, a construction
working woman. And he told me that he was very sorry,
but that he was not going to skip me ahead of anybody,
because he had people that would stand every morning at
the gate, and that he also had more than 100 applications
and resumes on his desk.
(Docket No. 29-3 at pp. 30-31.)
Similarly, Baez stated in her AU complaint that when she
sought employment at the Rivera Project, Barreto “told [her] that
women aren’t necessary, since he had other employees, men, from
another project that worked first.”
46.)

(Docket No. 29-4 at pp. 45-

The AU complaint also states that she raised the issue of

lack of female employees on the project to Baretto and he replied
that he “didn’t like that attitude because he knew what was going
on . . . .”

Id. at p. 46.

III. Discussion
Title VII prohibits covered employers from “refus[ing] to hire
. . . any individual . . . because of such individual’s race,
color, religion, sex, or national origin . . . .”

42 U.S.C.

Civil No. 15-1239 (FAB)
§ 2000e-2(a)(1).
treatment2

13

“The core inquiry in a gender-based disparate

case

is

whether

the

defendant

intentionally

discriminated against the plaintiff because of her gender.”

Ahern

v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010) (citing Rathbun v.
Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004)).
“A plaintiff may demonstrate a sex discrimination claim with
circumstantial evidence through the burden-shifting scheme set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . .
. .”

Burns, 829 F.3d at 8.

First, the applicant must establish a

prima facie case of discrimination.
at

802.

“Satisfaction

of

the

McDonnell Douglas, 411 U.S.

prima

facie

burden

creates

a

rebuttable presumption that discrimination prompted the challenged
adverse employment action.”

Martinez-Burgos, 656 F.3d at 12

(citing Cumpiano v. Banco Santander P.R., 902 F.2d 148, 153 (1st
Cir. 1990)).
burden

If the plaintiff establishes a prima facie case, the

shifts

nondiscriminatory

2

to

the
reason

employer

to

[“LNDR”]

produce
for

its

a

legitimate
employment

Plaintiffs allege individual disparate treatment, discriminatory
failure to hire plaintiffs, and systemic disparate treatment, that
Karimar has intentionally engaged in discriminatory “policies and
practices.” (Docket No. 1 at p. 6.) Both parties, however, frame
their arguments using the McDonnell Douglas framework that applies
solely to individual disparate treatment claims.
See Diaz v.
Ashcroft, 301 F. Supp. 2d 112, 115 (D.P.R. 2004) (Gelpi, J.). The
Court still considers evidence of Karimar’s practices because
“courts have held that evidence of general patterns of
discrimination treatment by an employer may be relevant even in an
individual disparate treatment . . . case because such evidence may
help prove discriminatory animus.” Sanchez-Medina v. UNICCO Serv.
Co., 265 F.R.D. 29, 40 (D.P.R. 2010) (Arena, C. Mag.).

Civil No. 15-1239 (FAB)
decision.

14

Id.; see also Jones v. Walgreen Co., 679 F.3d 9, 20 (1st

Cir. 2012).

Finally, the applicant may rebut the employer’s LNDR

as pretext or establish that the employer’s true motive for the
adverse employment action was discriminatory.
411 U.S. at 803.
burden

of

McDonnell Douglas,

“At all times, the plaintiff bears the ultimate

persuading

the

trier

of

fact

that

the

intentionally discriminated against the plaintiff.”

defendant

Gu v. Boston

Police Dep’t, 312 F.3d 6, 11 (1st Cir. 2002) (internal citations
and quotations removed); see also Dichner v. Liberty Travel, 141
F.3d 24, 30 (1st Cir. 1998).
A.

Prima Facie Case of Discrimination
A

prima

facie

case

of

discrimination

Title VII requires a plaintiff to show that:

pursuant

to

“(1) she is a member

of a protected class, (2) she applied and was qualified for [a
vacant] position, and (3) the [potential employer] rejected her and
(4)

hired

someone

with

similar

or

lesser

qualifications.”

Moron-Barradas v. Dep’t of Educ. of Com. of P.R., 488 F.3d 472, 478
(1st Cir. 2007) (citing McDonnell Douglas, 411 U.S. at 802); see
also Clifford v. Barnhart, 449 F.3d 276, 281 (1st Cir. 2006).
“Meeting the initial prima facie requirement is ‘not especially
burdensome.’”

Martinez-Burgos, 656 F.3d at 12 (quoting Greenberg

v. Union Camp Corp., 48 F.3d 22, 26 (1st Cir. 1995)).

Civil No. 15-1239 (FAB)

15

The parties agree that both Gonzales and Baez were
members of a protected class3 who applied for and were rejected
from

employment

that

was

(Docket No. 28 at p. 6.)

later

awarded

to

other

applicants.

Plaintiffs have posited, and defendant

has not challenged, that Gonzalez and Baez were qualified to work
as

laborers

on

a

school

renovation

project

because

they had

performed similar work in the past. See Docket No. 29-3 at pp. 1011; see also Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15,
23–24 (1st Cir. 2014) (considering experience in the designated
field in determining whether employee was qualified for the vacant
position).

Nor does defendant challenge that the workers hired on

the Rivera Project had similar or lesser qualifications than
Gonzalez, an experienced laborer, or Baez, a twenty-year veteran
laborer, (Docket No. 29-3 at p. 10; 29-4 at p. 46).

The parties,

however, disagree regarding the existence of vacant positions.
In considering whether a vacant position exists, the
First Circuit Court of Appeals has stated that “[a]n employer is
not required . . .

to create a new job for an employee, nor to

re-establish a position that no longer exists.”4

Phelps v. Optima

Health, Inc., 251 F.3d 21, 27 (1st Cir. 2001); see also Beams v.

3

Women are members of a Title VII protected class.
Dragon v.
Dep’t. of Mental Health, Retardation & Hosp., 936 F.2d 32, 35 (1st
Cir. 1991).

4

Congress intended that Title VII and the Americans with
Disabilities Act Title I be treated uniformly. Roman-Oliveras v.
P.R. Elec. Power Auth., 655 F.3d 43, 52 (1st Cir. 2011).

Civil No. 15-1239 (FAB)

16

Norton, 256 F. Supp. 2d 1203, 1214 (D. Kan. 2003), aff’d, 93 F.
App’x 211 (10th Cir. 2004) (quoting Baltazor v. Holmes, 162 F.3d
368, 374 (5th Cir. 1998) (“No employer can discriminate for failing
to fill a position which no longer exists unless the employer
eliminated the position as a means of discrimination.”)).

Rather,

the applicant “bears the burden of proof in showing that such a
vacant position exists.”

Lang v. Wal-Mart Stores E., L.P., 813

F.3d 447, 456 (1st Cir. 2016).

In determining the existence of a

vacant position, courts may consider whether the employer continued
to seek applicants after they rejected the plaintiff-applicant.
Smith v. Janey, 664 F. Supp. 2d 1, 12 (D.D.C. 2009), aff’d sub nom.
Smith v. Rhee, No. 09-7100, 2010 WL 1633177 (D.C. Cir. Apr. 6,
2010); see also United States v. City of N.Y., 631 F. Supp. 2d 419,
429 (S.D.N.Y. 2009) (“When a position is not filled and a defendant
continues to seek similarly-qualified applicants, a reasonable
inference of discrimination may be drawn.”).
Defendant contends that on the days that plaintiffs
sought employment, March 13 and April 10, 2014, defendant did not
have any open or vacant position.

(Docket No. 28 at p. 6.)

It

supports this claim by reference to the alleged fact that no
employee, male or female, was hired on either of those dates,
(Docket No. 29-1), and the alleged fact that Barreto told both
Gonzalez and Baez that there were no vacant positions at the times
of their inquiries, (Docket No. 29-2 at pp. 99, 162-63).

Civil No. 15-1239 (FAB)

17

Plaintiffs counter that there were positions available,
and while no employees were hired on the particular days of their
inquires, several male employees were hired within days of their
requests for employment.5

(Docket No. 33 at p. 10.)

Gonzalez

requested employment as a laborer on March 13, 2014, (Docket
No. 29-3 at pp. 23, 25), and Karimar hired four male laborers
within two weeks of Gonzalez’s employment inquiry, (Docket No. 29-2
at pp. 136-39 (March 19, 25, and 27).

Similarly, Baez requested

employment on April 10, 2014, (Docket No. 29-4 at p. 39), and
Karimar hired male laborers on April 8, 13, and 18 and a male
cement mason on April 14, (Docket No. 29-2 at pp. 134, 137-39).
This issue of the existence of a vacant position presents
a genuine dispute because a reasonable jury could find in favor of
either party and it is a material fact because the absence or
presence

of

this

element

of

the

prima

facie

case

could

be

determinative. Accordingly, this issue of the existence of open or
vacant employment positions must proceed to trial.
B.

Legitimate Nondiscriminatory Reasons
If plaintiffs are able to establish a prima facie case of

discrimination, defendant claims it is still not in violation of

5

Defendant draws attention to the fact that neither Gonzalez nor
Baez submitted a formal resume or application. (Docket No. 28 at
pp. 8, 10.) The court in Velez v. Janssen Ortho, LLC, however,
found an exception to the general requirement to apply formally to
a position when an employer does not regularly advertise vacant
positions. 467 F.3d 802, 808 n.6 (1st Cir. 2006).

Civil No. 15-1239 (FAB)
Title

VII

because

plaintiffs.

it

18
had

two

LNDRs

for

(Docket No. 28 at pp. 10-11.)

declining

to

hire

First, defendant

realleges that there were no vacant positions at the time that
plaintiffs sought employment.
discussed

that

there

is

a

Id at p. 11.
genuine

The Court has already

dispute

of

material

fact

regarding this issue requiring that it go forward to the jury.
Next, defendant contends that they hired employees for
the Rivera Project based on an established order of preference:
first, employees who were already on Karimar’s payroll due to work
performed on previous projects; and second, employees whose names
appeared

on

one

of

several

lists

or

who

repeatedly

employment by waiting outside of the project site.

sought

(Docket No. 28

at p. 11.)
Just as an employer is not required to violate the rights
of other employees when reassigning workers, see Feliciano v. Rhode
Island, 160 F.3d 780, 787 (1st Cir. 1998), neither is an employer
required to violate the rights of other applicants in making hiring
decisions.

Also, a policy of hiring internal applicants only is a

valid reason to reject an external applicant.

Morgan v. Fed. Home

Loan Mortg. Corp., 328 F.3d 647, 652 (D.C. Cir. 2003).
Although plaintiff Gonzalez asserts that no applicants
were waiting outside the project when she sought employment on
March 13, 2014, (Docket No. 29-3 at p. 32), both plaintiff Baez and
witness Santiago-Irizarry attest that there were applicants waiting

Civil No. 15-1239 (FAB)

19

for employment throughout the duration of the Rivera Project.
(Docket Nos. 29-4 at pp. 35, 41-42; 29-5 at pp. 24-25 (between
eight and ten people daily).)

Plaintiffs admit that Karimar gives

priority in hiring to “in house” employees.
pp. 67-68; 29 at p. 4; 32 at p. 3.)6

(Docket Nos. 29-2 at

Additionally, plaintiffs

admit that Barretto hired six or seven people from applicants
seeking employment at the Rivera Project whose names appeared on
one of several applicant lists.7

(Docket Nos. 29-2 at p. 158; 29

at p. 7; 32 at p. 9.)
Because the burden to assert a LNDR is one of production,
Martinez-Burgos, 656 F.3d at 12, the Court accepts defendant’s
asserted LNDR that it hired based on an established order of
preference.
C.

Pretext or Discriminatory Motive
Because defendant has met its burden of producing a LNDR,

the burden shifts back to plaintiffs to establish that defendant’s
LNDR is pretext or that discrimination was the true motivator of
Karimar’s decision not to hire them.
U.S. at 803.

See McDonnell Douglas, 411

“[B]ecause courts do not serve as super-personnel

6

The Court finds that defendant’s statement is supported by the
cited deposition testimony and therefore plaintiffs’ denial is
unsupported and the fact is admitted. See Local Rule 56 (c),(e).

7

It is contested whether the applicants waiting outside of the
Rivera Project made their own applicant list. (Docket Nos. 29-2 at
p. 160; 32 at p. 10.)

Civil No. 15-1239 (FAB)
departments

that

20

reexamine

an

entity’s

business

decisions,

a

plaintiff asserting that an employers explanation is pretextual
. . . faces a formidable task.”

Janey, 664 F. Supp. 2d at 12

(citing Pearsall v. Holder, 610 F. Supp. 2d 87, 100 (D.D.C.2009)).
A

plaintiff

may

establish

pretext

by

highlighting

“weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons such
that a factfinder could infer that the employer did not act for the
asserted non-discriminatory reasons.”

Pina v. Children’s Place,

740 F.3d 785, 797 (1st Cir. 2014) (quoting Straughn v. Delta Air
Lines, Inc., 250 F.3d 23, 42 (1st Cir. 2001)).

This evidence may

be used to establish discriminatory motive or that the LNDR is
pretext “provided
rational

that

factfinder

the

evidence

reasonably

to

is

adequate to
infer

that

enable a
unlawful

discrimination was a determinative factor in the adverse employment
action.”

Id. (quoting Santiago–Ramos, 217 F.3d at 54).
Here, plaintiffs claim that Barreto’s statements – that

“women weren’t necessary in a construction project,” that women are
only used for cleaning on construction projects, and that he would
not bypass “all the men” in order to hire Gonzalez – indicate that
his motive for not hiring them was discriminatory based on their
gender.

(Docket Nos. 1 at p. 6; 29-3 at pp. 22-23, 39; 29-4 at

pp. 39-40; 33 at pp. 2, 10.)
made these statements.

Defendant denies that Barreto ever

(Docket No. 29-2 at pp. 98-99, 170.)

Civil No. 15-1239 (FAB)

21

Plaintiffs also highlight the fact that no female workers were
hired for the Rivera Project.

(Docket No. 29-4 at p. 46.)

These issues - whether defendant made statements and
whether the statements establish that sex discrimination is the
real reason that plaintiffs were not hired – present genuine
disputes because a reasonable jury could find in favor of either
party.

They are material facts because the absence or presence of

this discriminatory motive could be determinative.

Accordingly,

these issues must proceed to trial.
VI.

Conclusion
Because genuine disputes of material fact exist regarding

plaintiffs’ Title VII discrimination claim, defendant’s motion for
summary judgment, (Docket Nos. 27, 28), is DENIED.
At trial, the jury will be faced with deciding first, whether
plaintiffs have established a prima facie case by proving that a
vacant position existed.

If the jury decides that a vacant

position did exist, satisfying the first step of the McDonnell
Douglas framework, the defendant’s LNDR - that it hired according
to an established order of preference – will satisfy the second
prong.

Thus, the jury will then decide whether Barreto made the

alleged statements and whether those statements show that he had a
discriminatory motive, sex, for not hiring Gonzalez and Baez.
Plaintiffs’ Puerto Rico law 100 and 69 claims will also
proceed to trial.

Civil No. 15-1239 (FAB)

22

IT IS SO ORDERED.
San Juan, Puerto Rico, November 29, 2016.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
United States District Judge