Toledo v. JC Penney

Filing 54

MEMORANDUM OPINION: Granting 28 motion for summary judgment. Signed by Judge Gustavo A. Gelpi on 9/16/2016. (MET)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF PUERTO RICO

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GILBERTO TOLEDO
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Plaintiff,
CIVIL NO. 15-1408 (GAG)

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v.
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JC PENNEY,
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Defendant.
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MEMORANDUM OPINION

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On September 12, 2016, the Court held oral argument on the Motion for Summary

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Judgement pending in the above-captioned action at Docket No. 28 filed by JC Penney (“JCP” or

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“Defendant”).

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discrimination in violation of the Age Discrimination in the Employment Act (“ADEA”), 28

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U.S.C. §§ 623 et sec., Puerto Rico Law 100 of June 30, 1959 (“Law 100”), P.R. LAWS ANN. tit.

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29, §§ 146 et sec., and the Constitution of the United States and the Commonwealth of Puerto

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Rico.

Gilberto Toledo (“Plaintiff”) filed suit against Defendant alleging age

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I.

Relevant factual background

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Plaintiff is a 59-year old salesperson at JCP’s department retail store in Plaza Las
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Americas in San Juan, Puerto Rico. Plaintiff has been working as a Service Specialist in the
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footwear department since 2005, initially part-time and later on full-time, and he currently earns
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$15.72 per hour. It is an uncontested fact that Plaintiff’s hourly pay rate has never been reduced,
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although he asserts that his salary has been adversely affected due to work-hour reduction.
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Civil No. 15-1408 (GAG)
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In January 2013, Plaintiff reported a fall in the store’s escalator and as a result received

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medical treatment for around a year, pursuant to Workers Compensation Leave. In late March

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2014, Plaintiff filed an internal complaint with JCP’s Ethic and Compliance Reporting system. In

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essence, the complaint alleged that: (1) upon return to work from the accident, Plaintiff suffered a

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reduction in work hours; (2) when informed to his former store manager, Manuel Gonzalez, he

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told Plaintiff that JCP could hire “three part-time employees with his salary;” (3) when Plaintiff

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met with Susset Reyes, another store manager, and Monica Diaz, a Human Resource leader, they

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informed him that hour reduction was due to the fact that he averaged less than 35 work-hours in

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2013;1 (4) Mrs. Diaz continued to assign Plaintiff less than 25-30 hours per week, even though

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Mrs. Reyes petitioned for an experienced associate on the sales floor, and (5) finally, an incident

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had occurred when a store manager questioned Plaintiff as to his whereabouts in a hostile,

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threatening and aggressive manner in front of his co-workers.

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JCP conducted an investigation led by Rosa M. Benitez, another Human Resources leader. The

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investigation concluded that: (1) Plaintiff was the employee under limited availability

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classification with the highest amount of work-hours; (2) most employees younger than Plaintiff

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and with limited availability worked less hours than him; (3) the 2014-2015 store budgets

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suffered significant reductions; (4) Plaintiff’s work schedule was assigned in the same manner as

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all other employees, and (5) there was no age or disability based discrimination or persecution

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from any employee at JCP, among several other findings.

As a result of these allegations,

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Additionally, and according to the investigation report, Plaintiff had been instructed by his

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supervisors that in order to increase working hours he had to increase work availability. Hence,

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Mrs. Diaz, as Human Resource leader, helped Plaintiff in accessing JCP’s internal time and

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A total of 35 hours per-week constitutes the minimum hours required by JCP to be classified as a fulltime employee.
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Civil No. 15-1408 (GAG)
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attendance system, in order to change availability. Plaintiff only contests from the investigation’s

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findings the manager and co-workers’ version of the alleged hostile incident. Nevertheless,

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Defendant points out that the incident as reported by Plaintiff was completely unrelated to

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Plaintiff’s age. Furthermore, Defendant posits that Plaintiff’s reduction in hours was due to his

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voluntary limited work availability, because he was attending religious studies courses at a local

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college and had other personal activities. Plaintiff denies that his studies or other personal

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activities restricted his available work hours.

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Defendant posits several facts as to how JCP’s department stores operate in Puerto Rico.

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The following are relevant to this cause of action, and uncontested by Plaintiff: (1) JCP’s

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associates can access and obtain copies of all company policies through computers (”associate

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kiosks”) and other methods, and JCP has established procedures for channeling employee

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discrimination complaints; (2) the Human Resources Manager or Director for the Plaza Las

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America store, where Plaintiff works, schedules employees’ hours to ensure the store is well

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staffed during all operating times, and (3) JCP may change work schedules according to store’s

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needs, peak hours, among other factors. Although vaguely contested by Plaintiff, the record

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shows that JCP’s employees do not have guaranteed specific amount work hours. In this respect,

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Plaintiff admitted during his deposition that he is aware that JCP takes into account the following

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specific factors to determine work-hour distribution among employees: (1) employee availability,

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which is controlled by the employee; (2) estimated sales volume on particular dates and times of

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the day, and (3) depending on the expected amount of customers, the system determines amount

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of work hours needed. Finally, Defendant highlights that since employees’ availability for work -

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whether limited, unlimited or flexible- is an important factor in determining work schedule, it has

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at all times assigned Plaintiff work-hours pursuant to his availability and following the above-

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mentioned factors.
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Civil No. 15-1408 (GAG)
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II.

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As a threshold matter, the Court noted at oral argument that Plaintiff’s sworn statement

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(Docket No. 40-1) provided in support of his opposition should be stricken from the record

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because it constitutes a “sham affidavit.” This sworn statement is contradictory and the testimony

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it contains was offered post-summary judgment stage to create issues of fact that would preclude

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summary judgment. (Docket No. 40) The First Circuit has held that “[w]here a party has given

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clear answers to unambiguous questions in discovery, that party cannot create a conflict and resist

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summary judgment with an affidavit that is clearly contradictory, unless there is a satisfactory

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explanation of why the testimony [has] changed.” Escribano-Reyes v. Prof’l Hepa Certificate

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Corp., 817 F.3d 380, 386 (1st Cir. 2016) (citing Hernandez–Loring v. Universidad Metropolitana,

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233 F.3d 49, 54 (1st Cir. 2000) (internal quotation marks omitted) (emphasis added). At no

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moment has Plaintiff given an explanation for the contradictions or the late filing of Plaintiff’s

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sworn testimony nor does the document itself contain any information as to why it was submitted

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post-discovery. Defendant posits that Plaintiff’s sworn statement contradicts statements that

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Plaintiff admits in his response to Defendant’s motion. (Docket No. 43-1 at 2.) Moreover, the

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statement contains self-serving allegations not properly supported by the record or the pleadings.

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The Court will strike down this document because “[p]laintiff cannot attempt to create an issue of

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fact by filing a “sham affidavit”, that is, one that contradicts prior deposition testimony.” Rivera-

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Rocca v. RG Mortgage Corp., 535 F. Supp. 2d 276, 286, n. 5 (D.P.R. 2008) (citing Colburn v.

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Parker, 429 F.3d 325, 332 (1st Cir. 2005).

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Discussion

A. ADEA Claims

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Defendant argues that Plaintiff must establish the third and fourth steps of their prima

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facie case of age based discrimination under ADEA and Law 100. (Docket No. 28.) The

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McDonnell-Douglas standard requires and initial showing that: (1) he was at least 40 years old at
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Civil No. 15-1408 (GAG)
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the time of the adverse action; (2) he was qualified for the position; (3) suffered an adverse

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employment action, and (4) the employer did not treat neutrally or demonstrate a continuing need

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for his services. See Ramirez-Munoz v. Wyndham Grand Rio Mar Beach Resort & Spa, No. 13-

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1955 (PG), 2016 WL 1698291, at *7 (D.P.R. Apr. 26, 2016). Defendant holds that Plaintiff meets

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the first two prongs, but fails to show the remaining two. According to Defendant, Plaintiff did

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not suffer an adverse employment action. (Docket No. 28 at 13-16.) In support of its contention,

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Defendant argues the following: (1) JCP assigned Plaintiff’s work hours pursuant to his

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availability as well as the above-mentioned age neutral factors; (2) since 2012 Plaintiff voluntarily

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reduced his availability on several occasions for solely personal reasons; (3) consequently, there

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was a reduction in his work-hours and, as admitted by Plaintiff, his hourly pay rate has never been

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reduced; (4) he has never been demoted, (5) and the terms and conditions of his employment have

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never been affected. (Docket No. 43 at 4.) Moreover, Defendant contends Plaintiff provides no

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evidence that age was a motivating factor in the reduction of his hours. The incident involving

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the store manager’s comments about hiring “three younger part-time employees with his salary”

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were first mentioned in the current suit and were not part of the internal complaint to JCP’s Ethics

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and Compliance Reporting system. (Docket No. 28-1 ¶ 110.)

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The Court finds that there is no issue of fact considering that Plaintiff has utterly failed to

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prove his prima facie case under the ADEA. Namely, the record is devoid of evidence of the

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following requirements: (1) an adverse employment action; (2) an age-based “but for” casual

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nexus or motivating factor for discrimination, and (3) evidence that Defendant’s proffered reasons

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for Plaintiff’s work-hour reduction establishes a pretext concealing a discriminatory animus.

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A Plaintiff has to prove an adverse employment action to fulfill an essential step in the

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burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

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for ADEA discrimination cases. The inquiry of whether an employment action is “adverse,” and
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Civil No. 15-1408 (GAG)
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therefore actionable, is gauged by an objective standard. See Blackie v. Maine, 75 F.3d 716, 725-

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726 (1st Cir. 1996) (emphasis added). Similarly, “[t]o be adverse, an action must materially

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change the conditions of plaintiff’s employ.” Gu v. Boston Police Department, 312 F.3d 6, 14 (1st

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Cir. 2002) (citation omitted) (emphasis added). Additionally, in an ADEA or Law 100

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discrimination case, Plaintiff has to prove that age was the “but for” cause or motivating factor of

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the employer’s adverse decision, respectively. See Palacios v. First Bank Puerto Rico, No. 11-

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1420 (GAG), 2012 WL 3837443 at *9 (D.P.R 2012) (“The analysis under ADEA and Law 100 is

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practically the same.”). Finally, Plaintiff has to show, by a preponderance of the evidence, the

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existence of impermissible discriminatory animus on the part of the employer. See Feliciano de

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la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 6 (1st Cir. 2000).

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As supported by the record and discussed at oral argument, there is no doubt that

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Plaintiff’s hours were indeed reduced. Plaintiff’s total work-hours were reduced from 1,618.80

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total worked hours in 2013 to 1,303.60 in 2014. (Docket No. 28-1 ¶ 82.) However, this fact

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alone does not indicate a discriminatory action taken by Defendant. The record shows that hours

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were also reduced for employees younger than Plaintiff during the time-period in question. For

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example, the following younger employees that worked alongside Plaintiff in the men’s shoe

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department between mid-2013 and mid-2014 suffered significant hour reduction: (1) Javi Agosto

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went from 418.10 to 107.50 total work hours; (2) Giovanni Rivera went from, 702.5 to 142.7 total

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worked hours, and (3) Charinel Canales went from 1,439 to 556.10 total work hours.

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No. 28-1 ¶ 90.)

(Docket

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Defendant reduced employee’s work-hour while considering other factors, such as

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employee availability (whether limited, unlimited or flexible), estimated sales volume, the

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expected amount of customers store’s needs, and peak hours. (Docket No. 28-1 ¶¶ 9-12.) In this

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respect, Plaintiff’s limited work-hour availability certainly impacted his hour reduction. (Docket
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No. 43 at 10.) On top of all these factors, Defendant’s Plaza Las America store annual budget has

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decreased by 13.71% in 2013, 5% in 2014, and 4% in 2015, and these budgetary constraints have

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inevitably impacted the scheduling of all employees. (Docket No. 28-1 ¶ 14.) “The ADEA does

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not stop a company from discharging an employee for any reason (fair or unfair) or for no reason,

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so long as the decision to fire does not stem from the person’s age.” Mesnick v. Gen. Elec. Co.,

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950 F.2d 816, 825 (1st Cir. 1991) (citations omitted) “Courts may not sit as super personnel

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departments, assessing the merits—or even the rationality—of employers' nondiscriminatory

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business decisions.” Id. Defendant’s action ultimately exhibits an across the board work-hour

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reduction for all employees based on a private company’s reasonable business decision. In fact,

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Plaintiff is still employed by Defendant, (Docket. No. 28-1 ¶ 31), and as presented at oral

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argument, he could at any time change his work-hour availability and request another work

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schedule. Thus, this Court will not “second-guess the business decisions of an employer.” Pena

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v. Crowley Am. Transp., Inc., 172 F. Supp. 2d 321, 329 (D.P.R. 2001).

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Consequently, Plaintiff failed to provide sufficient evidence to support its prima facie case

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of age-discrimination. The court GRANTS Defendant’s motion for summary judgment at Docket

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No. 28 and DISMISSES Plaintiff’s claims.

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SO ORDERED.
In San Juan, Puerto Rico this 16th day of September, 2016.

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s/ Gustavo A. Gelpí
GUSTAVO A. GELPI
United States District Judge

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