Rivera-Cruz v. Hewitt Associates Caribe, Inc. et al

Filing 141

OPINION AND ORDER: Adopting in part and Rejecting in Part 137 "Report and Recommendation." See attached. The request for summary judgment on plaintiff's hostile work environment claim based on national origin is DENIED under Title VII and Law 100; The request for summary judgment with respect to plaintiff's discrimination claim under ADEA and Law 100 is GRANTED; The request for summary judgment on plaintiff's hostile work environment claim based on age is GRANTED; Th e request for summary judgment as to plaintiff's retaliation claim is GRANTED; The request for summary judgment regarding plaintiff's claims under Law 379, the Civil Code and the Puerto Rico Constitution is GRANTED; and The request for summary judgment on plaintiff's Law 80 claim is DENIED. Signed by Judge Pedro A. Delgado-Hernandez on 03/30/2018.(LMR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NILDA RIVERA-CRUZ,
Plaintiff,
CIVIL NO. 15-1454 (PAD)

v.
HEWITT ASSOCIATES CARIBE, INC.,
et al.,
Defendant.

OPINION AND ORDER
Delgado-Hernández, District Judge.
Plaintiff worked as a Customer Service Representative for Hewitt for some eight months
through successive temporary service contracts between July 2013 and April 2014, in a Call Center
in Puerto Rico, answering calls from mostly stateside English-speaking Home Depot employees,
some of whom, according to plaintiff, made openly derogatory comments about her accent while
she tried to assist them with benefits-related concerns. 1 The last of the contracts expired, the
employment relationship terminated, and plaintiff initiated the present action complaining of
hostile work environment, discrimination, retaliation, unjust discharge, and of other allegedly
injurious behavior under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621
et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; Puerto Rico Law 100,

1

These comments included: “You have a really heavy accent that I can’t stand;” “I cannot stand your accent;” “I really hate your
accent, fuck yourself and transfer this call;” “You will have to excuse me but, with your accent all I think is booze;” “Your stupid
accent makes me sick;” and, “Do you really speak and understand English? I don’t think so, you sound stupid and unaware of my
situation.” Others, when told that Rivera was in Puerto Rico said, “You aliens are everywhere;” “Would your tiny Latin brain
understand my problem?;” “You people are used to the food stamps and do not understand how working people pay their bills.
You will never understand us. I want you to transfer this fucking phone call immediately to a USA based CSR, so I can explain
and they will understand my situation;” “Your stupid laws and procedures in Puerto Rico do not apply to us in the USA; transfer
this call immediately to a supervisor so I can tell them to try, within your limited capacity, to train you people from Puerto Rico
better for this kind of situation;” and, “No wonder you cannot help me, you people don’t have enough brain space to learn new
tricks.” Rivera was also allegedly asked by Home Depot employees if she was “on drugs or drunk like all of you.”

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P.R. Laws Ann. tit. 29 § 146; Puerto Rico Law 80, P.R. Laws Ann. tit. 29 § 185; Puerto Rico Law
379, P.R. Laws Ann. tit. 29 § 271; the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 5141; and
the Puerto Rico’s Constitution, Art. II, §§ 1, 3, 8, 16.
Hewitt moved for summary judgment (Docket No. 107), which motion plaintiff opposed
(Docket No. 117). Hewitt replied (Docket No. 132) and plaintiff surreplied (Docket No. 132).
The court referred the motions to U.S. Magistrate Judge Bruce J. McGiverin (Docket No. 134),
who issued a Report and Recommendation (“R&R”), recommending that Hewitt’s motion be
granted in part and denied in part (Docket No. 137). Plaintiff did not file any objections to the
R&R, but Hewitt did so. For the reasons explained below, the R & R is adopted in part.
I.

REFERRAL

A district court may refer a pending motion to a magistrate judge for a report and
recommendation. See, 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. Civ. Rule 72. Any
party adversely affected by the report and recommendation may file written objections within
fourteen days of being served with the magistrate judge’s report. Loc. Civ. Rule 72(d). See 28
U.S.C. § 636(b)(1). A party that files a timely objection is entitled to a de novo determination of
“those portions of the report or specified proposed findings or recommendations to which specific
objection is made.” Ramos-Echevarria v. Pichis, Inc., 698 F.Supp.2d 262, 264 (D.P.R. 2010);
Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R. 2005)(citing U.S. v. Raddatz,
447 U.S. 667, 673 (1980)).

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II.

REPORT AND RECOMMENDATION

The Magistrate Judge evaluated the voluminous material the parties submitted, making the
following recommendations.
1.

Hostile Work Environment (National Origin).

The Magistrate Judge

recommended that summary judgment be denied, finding there is a jury issue as to the comments
concerning plaintiff’s accent, and sufficient facts at this stage to support the conclusion that Hewitt
knew or should have known about the comments and failed to take immediate and corrective action
to deal with them (Docket No. 137 at pp. 7-19).
2.

Discrimination (Age).

The Magistrate Judge recommended that summary

judgment be denied as to plaintiff’s discriminatory termination claim, concluding there is evidence
of pretext. Id. at pp. 22-30; 31-32.
3.

Unjust Discharge (Law 80). The Magistrate Judge recommended that summary

judgment be denied; pointing out that Hewitt only questioned the size of the amount to be awarded
in the event plaintiff prevailed. Id. at p. 32.
4.

Retaliation. The Magistrate Judge recommended that summary judgment be

granted, for lack of protected activity triggering statutory protection. Id. at pp. 19-22.
5.

Hostile Work Environment (Age).

The Magistrate Judge recommended

dismissal, for plaintiff failed to raise any arguments to defend her claims against summary
judgment. Id. at p. 30.
6.

Law 379/ Civil Code/ Puerto Rico Constitution.

The Magistrate Judge

recommended dismissal. Id. at pp. 33-36. Plaintiff failed to respond to the motion for summary
judgment on these items. With respect to the Constitution, the R& R concluded that plaintiff could
not point to any material facts that support a finding that her zone of individual autonomy included

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a purse without any details as to what, if anything, made it private in the circumstances of this
case. Id. at p. 36.
III.

THE OBJECTIONS

A. Hostile Work Environment
Hewitt contends plaintiff did not show that she was subject to severe and pervasive national
origin harassment, labeling the comments on plaintiff’s accent and national origin as “not
corroborated” by the co-workers that plaintiff identified as witnesses, and claims it cannot be liable
because it provided the employees with effective tools to deal with the harassment when it
happened (i.e. by giving Customer Service Representatives the ability to transfer the call, and
identify/stop any harassers before the call took place)(Docket No. 139 at pp. 5-6, 8-10). The most
serious objection involves the extent to which Hewitt may be liable for the comments made by
non-employees. 2
Under Title VII and Law 100, harassment is actionable if it causes the plaintiff to
subjectively perceive the work environment to be hostile or abusive, that environment is, on an
objective basis, sufficiently severe or pervasive to alter the conditions of plaintiff’s employment,
and is inflicted because of the plaintiff’s status as a member of a protected class. See, Thompson
v. Coca-Cola Co., 522 F.3d 168, 179 (1st Cir. 2008)(describing elements of national origin hostile
work environment claim under Title VII); Godoy v. Maplehurst Bakeries, Inc., 747 F.Supp.2d 298,
317 (D.P.R. 2010)(hostile work environment claims brought under Title VII and Law 100 are
essentially the same). To properly assess the claim, courts look at the totality of circumstances,
including the severity and frequency of the conduct; whether it was physically threatening or

2

The argument that plaintiff’s version has not been corroborated does not lead to summary judgment, but to a jury issue based on
credibility.

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humiliating or a mere offensive utterance; and whether it unreasonably interfered with the
employee’s work performance. See, Thompson, 522 F.3d at 180 (discussing elements of claim).
None of these factors is individually determinative of the inquiry. See, Ayala-Sepúlveda v.
Municipality of San Germán, 671 F.3d 24, 31 (1st Cir. 2012)(so holding).
If the comments were made as plaintiff has proffered, a reasonable juror may find them
insulting, severe enough for a reasonable person in plaintiff’s position to find them abusive, as she
claims she did, to sufficiently alter the conditions of her employment. See, Fragante v. City and
County of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989)(accent and national origin are obviously
inextricably intertwined). Hewitt argues that the comments: no more than reflect a person’s
preference to speak with someone located in the mainland United States; are even related to
plaintiff’s inability to perform her job duties by speaking English fluently to assist Home Depot’s
employees; and as such, do not amount to evidence of national origin discrimination (Docket No.
139 at pp. 5,7). The line between a merely unpleasant working environment and a hostile or
abusive one is sometimes difficult to locate. See, Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d
745, 753 (4th Cir. 1996)(pointing out difficulty); Del Pilar Salgado v. Abbott Laboratories, 520
F.Supp.2d 279, 289 (D.P.R. 2007)(same)(quoting Baskerville v. Culligan Intern. Co., 50 F.3d 428,
430-431 (7th Cir. 1995)). To that end, however, the evidence must be construed in its totality, and
so viewed, may sustain a finding consistent with plaintiff’s version of the events.
Hewitt posits plaintiff had onetime telephone interaction with each customer, a situation
differing from those where actionable harassment has been found in cases where the employee has
had continuous interaction with the same customers regularly (Docket No. 139 at pp. 3-4). Hostile
work environment claims typically involve repeated conduct, deriving from an ongoing series of
harassing incidents.

See, Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005)(so

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recognizing). The real impact of those incidents often depends on a constellation of surrounding
circumstances which are not fully captured by a simple recitation of the words used. See, Freeman
v. Dal-Tile Corp., 750 F.3d 413, 421-424 (4th Cir. 2014)(examining nonemployee harassment).
However, there is not support for the proposition that they require a particular set of regular
offenders.
Hewitt states that plaintiff never complained (Docket No. 139 at pp. 4, 8-9). Nonetheless,
an employer “typically draws upon two sources of information in order to determine the risk of
prohibited harassment to an employee: information received directly from the employee, and the
employer’s knowledge of the specific context of is one working environment.” Erickson v.
Wisconsin Dept. of Corrections, 469 F.3d 600, 606 (7th Cir. 2006), and there is evidence that
Hewitt was or may have been aware of the problem because a supervisor (Livia Ramos) confirmed
to plaintiff that she had experienced “situations like that” when plaintiff disclosed the harassing
comments to her, and another supervisor (Arisabel Castro) sent an email to the Customer Service
Representatives for Home Depot, including plaintiff, that she had “heard a few calls where Home
Depot employees have [gone] into paranoid crazy mode” (Docket No. 137 at pp. 9-11, 16-17).
This evidence, showing that Hewitt believed that Home Depot employees were so acting, increases
the likelihood that plaintiff also experienced such “crazy” behavior.
Hewitt posits that plaintiff and other Customer Service Representatives could have
transferred the call in a situation where they were not comfortable with the caller (Docket No. 139
at p. 10). Plaintiff, however, claims that she was instructed to calm down the caller if the call
started to escalate, albeit in at least one occasion transferred an offending call to a U.S.
Representative (Docket No. 101-2 at pp. 128-129, 140). Still, it is unclear how instructing an

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employee to try to calm down a caller uttering insulting language is an appropriate response to
protect the employee from that language.
All in all, whether the comments were made, their content, character, frequency, Hewitt’s
knowledge of them, and plaintiff’s reaction present triable issues about whether plaintiff was
subjected to a hostile work environment. But trial issues on these aspects of the dispute do not end
the matter, for plaintiff must also provide a basis for holding Hewitt liable for the type of
harassment in question, so-called third-party harassment or harassment from an employer’s client,
customer, vendor or other third party directed at one or more of the employer’s employees. See,
Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395 (1st Cir. 2002)(observing need of basis for employer
liability).
In this Circuit, employers may be liable for third-party harassment under certain
circumstances, one of which being that they knew or should have known about the harassment and
yet failed to take prompt steps to stop it. See, Medina-Rivera v. MVM, Inc., 713 F.3d 132, 137
(1st Cir. 2013)(addressing nonemployee harassing behavior). 3 Those steps must be undertaken at
least to the extent that they are within the employer’s power, Galdamez v. Potter, 415 F.3d 1015,
1025 (9th Cir. 2005)(so observing), taking into account the employer’s “ability to persuade
potential harassers to refrain from unlawful conduct.” Little v. Windermere Relocation, Inc., 301
F.3d 958, 968 (9th Cir. 2018).
The rationale for holding employers liable for nonemployee harassment in those settings
may warrant some elaboration in light of the reality that employers do not have the same agency

3

The same standard applies to co-worker harassment, as nonemployee harassment is considered “more analogous [to that type of]
… harassment than by supervisors. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1074 (10th Cir. 1998).

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relationship with nonemployees as they do with employees. So following the Equal Employment
Opportunity Commission’s Guidelines, 29 C.F.R. § 1604(e), the employer’s ability to address
nonemployee harassment has been measured with a view to how much the employer controls the
conditions of the work environment and could have expected to exert control over the
nonemployee’s conduct. 4 See, Lockard, 162 F.3d at 1073-1074 (an employer who condones or
tolerates the creation of a hostile work environment should be held liable regardless of whether
the environment was created by a co-employee or a nonemployee, since the employer ultimately
controls the conditions of the work environment); Lewis v. University of Connecticut, 2011 WL
5245423, *3,*4 (D.Conn. Nov. 2, 2011)(an employer should only be held liable where the
employer exerts some control over the nonemployee conduct or where the employer may have
some other legal responsibility over the nonemployee conduct). But see, Dunn v. Washington
County Hosp., 429 F.3d 689, 691 (7th Cir. 2005)(noting that ability to control the actor plays no
role, for employers have an arsenal of incentives and sanctions that can be applied to effect
conduct, and it is the use or failure to use these options that makes an employer responsible even
with respect to independent contractors, who in this context are no different than employees). 5
In those circumstances, the employer cannot avoid liability for third-party harassment by
adopting a “see no evil, hear no evil” strategy. Watson v. Blue Circle, Inc., 324 F.3d 325, 334

4

The Guideline states in part that in reviewing non-employee harassment of employees in the workplace, the Commission will
consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the
conduct of such nonemployees. Id. Even though it was issued in connection with sexual harassment, courts have recognized that
the same general standards apply to both sex-based and other types of hostile work environment claims. See, Lugo v. Shinseki,
2010 WL 1993065, * 9, n.10 (S.D. N.Y. May 19, 2010)(citing Torres v. Pisano, 116 F.3d 620, 624 (2d Cir. 1997))(so recognizing).
5

To illustrate the point, the Seventh Circuit presented a hypothetical: a patient in a Hospital kept a macaw in his room, the bird bit
and scratched women but not men, and the Hospital did nothing. The Seventh Circuit observed that the Hospital would be
responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird was not an
employee, and could not be controlled by reasoning or sanctions, for was the Hospital’s responsibility to protect its female
employees by excluding the offending bird from its premises. Id. at 691. Yet in the hypothetical, the Hospital controlled the
location and could presumably take action to exclude the offender from the premises.

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(11th Cir. 2003). Therefore, the employer would be liable for the prohibited harassment by
ratifying or acquiescing to it. See, Rodríguez-Hernández v. Miranda-Vélez, 132 F.3d 848, 854
(1st Cir. 1998)(so noting in connection with Title VII, Law 100 and Puerto Rico’s sexual
harassment statute). Thus, compare Little v. Windermere Relocation, Inc., 301 F.3d 958, 968-969
(9th Cir. 2002)(construing facts in the light most favorable to plaintiff, jury could find that
employer acquiesced or ratified nonemployee harassment by failing to take inmmediate corrective
action), and Freeman, 750 F.3d at 424 (imposing liability for nonemployee harassment where
employer failed to take any effective action to halt the harassment), with Folkerson v. Circus Circus
Enterprises, Inc., 107 F.3d 754, 756 (9th Cir. 1997)(employer did not ratify or acquiesced to
nonemployee harassment, taking reasonable steps to ensure employee’s safety) and Whiting v.
Labat-Anderson, Inc., 926 F.Supp.2d 106, 117 (D.D.C. 2013)(no liability for nonemployee
harassment due to prompt corrective action).
These principles are fact-driven. See, Dallan F. Flake, “Employer Liability for NonEmployee Discrimination,” 58 B.C.L.Rev. 1169, 1200 (2017)(noting fact-specific nature of
court’s analysis of nonemployee harassment); Francis J. Mootz III, “Insuring Employer Liability
for Hostile Work Environment Claims: How Changes in Discrimination May Affect The Growing
Market for Employment-Related Practices Liability Insurance,” 21 W.New.Eng.L.Rev. 369, 376
(1999)(observing fact-driven standard developed to evaluate employer liability for hostile work
environment). In drawing the line to assess potential liability, see, Crist v. Focus Homes, Inc., 122
F.3d 1107, 1111-1112 (8th Cir. 1997)(holding that employer, a for-profit residential home for
individuals with developmental disabilities, could be liable for the sexual assault committed by a
resident since the employer “clearly controlled the environment in which [the resident] resided,
and it had the ability to alter those conditions to a substantial degree”) and Kudatzky v. Galbreath

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Co., 1997 WL 598586, *5 (S.D. N.Y. Sept. 23, 1997)(employer could be liable for client’s
harassing conduct since much like a casino owner or the employer of an independent contractor,
employer could have deterred his client) in contrast to Viruet v. Citizen Advice Bureau, 2002 WL
1880731, * 17 (S.D. N.Y. Aug. 15, 2002)(finding that employer could not be liable for conduct of
non-employee client as employer had little or no control over client’s language), and Lewis, 2011
WL 5245423 at *5 (dismissing complaint under Fed. R. Civ. P. 12(b)(6) in part because plaintiff
failed to plead any facts regarding the nature of the relationship between his employer and the
entity to which employer provided services and whose employees harassed him which would
suggest that employer had the authority or ability to take appropriate action with respect to the
harassment).
Viewing the record in light most favorable to plaintiff, Hewitt has not provided sufficient
evidence to evaluate how these variables interacted here to justify the result it has requested, as
the record is silent on the nature of the contractual relationship it had with Home Depot, and the
authority or ability within that relationship to take appropriate action. In consequence, the motion
for summary judgment must be denied as to the hostile work environment claims. See, RiveraRuiz v. González-Rivera, 983 F.2d 332, 334-335 (1st Cir. 1993)(denying motion for summary
judgment in employment discrimination case where record was unclear); Maine v. Kerramerican.
Inc., 480 F.Supp.2d 357, 359 n.3, 364-365 (D. Maine 2007)(same). The denial applies to both
Title VII and Law 100. See, Godoy, 747 F.Supp.2d at 298 (denying dismissal request with respect
to Title VII and Law 100 hostile work environment claims).
B. Age Discrimination
Plaintiff complains of age discrimination under the ADEA and Law 100. He lacks direct
evidence to support the claim. So applying the prima facie burden shifting framework, the

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Magistrate Judge found that plaintiff made out a prima facie case and that Hewitt rebutted it with
evidence of performance problems (Docket No. 137 at p. 28). Yet he concluded that plaintiff had
put forward sufficient evidence for a jury to find that those problems were relied on as a pretext to
discriminate against her because of her age (id. at pp. 28-30), a conclusion with which Hewitt
disagrees (Docket No. 139).
1. ADEA
Under the ADEA, an employer may “not discharge ... or otherwise discriminate against
any individual with respect to [her] compensation, terms, conditions, or privileges of employment,
because of [her] age.” 29 U.S.C. § 623(a)(1). A plaintiff asserting a claim under the ADEA has the
burden of establishing “that age was the ‘but-for’ cause of the employer's adverse action.” See,
Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 138 (1st Cir. 2012)(quoting Gross v.
FBL Financial Services, Inc., 557 U.S. 167, 177 (2009)). Differently stated, the plaintiff’s age
must have been the determinative factor as opposed to merely a motivating factor in the employer’s
decision. Gross, 557 U.S. at 168.
Where, as here, plaintiff does not have direct evidence of discrimination, courts evaluate
this claim under the burden-shifting framework drawn from McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Consistent with this framework, plaintiff must establish that she (1) was at
least 40 years old at the time of the adverse action; (2) met the employer’s legitimate expectations;
(3) suffered an adverse employment action; and (4) the employer filed the position, thereby
showing a continuing need for the services that she had been rendering. Adamson v. Walgreens
Co., 750 F.3d 73, 78 (1st Cir. 2014).
If the plaintiff succeeds in establishing a prima facie case, the presumption arises that the
employer unlawfully discriminated against plaintiff, shifting to the employer the burden of

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articulating a legitimate, nondiscriminatory reason for the adverse employment action. Benoit v.
Technical Mfg. Corp., 331 F.3d 166, 174 (1st Cir. 2003); Champagne v. Servistar Corp., 138 F.3d
7, 12 (1st Cir. 1998). If the defendant is successful in satisfying its burden, plaintiff no longer can
rest on the initial inference of discrimination. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st
Cir. 2007). The inference raised by the prima facie case dissolves, and the last transfer of burdens
occurs. Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991), cert. denied 504 U.S.
985 (1992). In that case, the burden shifts back to the plaintiff to show that the reason proffered
was a pretext concealing unlawful discrimination of the type alleged. Rodríguez-Cuervos v. WalMart Stores, Inc., 181 F.3d 15, 19 (1st Cir. 1999). At this stage, the plaintiff’s burden of producing
evidence to rebut the employer’s stated reason for its employment action merges with the ultimate
burden of persuading the court that she has been the victim of intentional discrimination. Feliciano
de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 6 (1st Cir. 2000); Vélez v.
Thermo King de Puerto Rico, Inc., 585 F.3d 441, 447 (1st Cir. 2009).
The court assumes that plaintiff established a prima facie case of discrimination, which
Hewitt rebutted, articulating and producing a lawful reason for its decision: plaintiff’s performance
problems, a sub-par performance that never improved despite continuing evaluations and coaching
packages. See, García v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 (1st Cir. 2008)(employer met
its burden of providing a legitimate non-discriminatory reason by stating that employee was
discharged due to her deficient performance). As a result, to defeat summary judgment plaintiff
must show that the employer’s given reason was pretextual and that the record would permit a
reasonable jury to infer that the real reason was discriminatory animus based on plaintiff’s age.
See, Meléndez v. Autogermana, Inc., 622 F.3d 46, 50 (1st Cir. 2010)(articulating and applying

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test). On this aspect, the court reaches a different conclusion than the one subscribed to in the
R&R.
Pretext “means something worse than a business error.” Ronda-Pérez v. Banco Bilbao
Vizcaya Argentaria-Puerto Rico, 404 F.3d 42, 45 (1st Cir.2005). It means deceit – a lie – a madeup story to cover one’s tracks. See, Collazo-Rosado v. University of Puerto Rico, 765 F.3d 86, 92
(1st Cir.2014)(so observing). To that end, pretext analysis is more demanding than the assessment
of whether a prima facie case has been established, Mariani-Colón v. Department of Homeland
Sec. ex. rel. Chertoff, 511 F.3d 216, 222 (1st Cir. 2007) (so noting), moving the inquiry to a new
level of specificity. Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003)(applying
formulation). It directs the court’s focus to the perception of the employer, to determine whether
the decisionmaker believed the stated reason is real. See, Ronda-Pérez, 404 F.3d at 45 (discussing
topic). This can be demonstrated in a variety of ways, such as showing that the employer proffered
different and arguably inconsistent explanations for its decision, unless the record reveals that the
real motive was an unstated nondiscriminatory reason, Collazo-Rosado, 765 F.3d at 93;
comparative evidence that plaintiff was treated less favorably than similarly situated employees;
Kosereis, 331 F.3d at 213; and sufficiently probative discriminatory comments, González, 304
F.3d at 69-72.
From the documents filed, plaintiff did not seem to be meeting Hewitt’s 85% quality score,
scoring 81%, 75%, 76.5%, 82.5%, and 75%, with one 85.2% (Docket No. 105, Exh. 18 - bates
stamped 131). She was counseled that she did not probe to identify the purpose of a call; enrolled
a customer without clarifying deductions were per pay period rather than per month; and spoke
about credits but seemed she said $45 instead of $35, (Exh. 19A - bates stamped 134). She
mentioned the timing to receive ID cards, but not the timing for carriers to update nor COE

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(although the meaning of COE is unclear). Id. Similarly, she did not confirm contact information,
(id.); failed to validate the customer’s concern (Exh. 19B - bates stamped 137); and did not use
verbal cues directly (id.).
Additionally, plaintiff did not conduct proper research nor exhausted her sources before
transferring the customer over to the plan carrier (id. - bates stamped 38); did not offer insurance
at the beginning of the call; and failed to address the customer’s issues properly, instead of making
sure to convey an understanding of the customer’s request, assuming ownership of the matter by
setting the proper expectations, and taking a brief pause to ask the customer if he had any question
so far (Exh. 19C - bates stamped 145). Further, she provided incorrect information, telling a
customer that once payment for April was posted no deductions would be applied to his paycheck
after the return to work date (id.); did not validate the customer’s concern (Exh. 19F - bates
stamped 157); provided information that was neither tailored nor delivered in a manner that was
easy for the customer to understand, and did not convey a proper understanding of the customer’s
matter (Exh. 19F - bates stamped 158). She did not structure information logically (id. bates
stamped 159); did not verify contact information (Exh. 19G - bates stamped 72); and failed to
advise the customer of carrier updates. Id. In other occasions, she did not personalize closing
(Exh. 19J - bates stamped 79); and transferred to YSA (although its meaning is unclear), even
though the Call Center only transferred calls to YSA if the customer was requesting TR status (id.
bates stamped 80). Moreover, she did not advise customer that if she cancelled benefit, she would
not be able to make changes within a 12-month rolling period (Exh. 19K - bates stamped 87); and
did not complete the walk-through process correctly (Exh. 19M - bates stamped 94).
Plaintiff argues that performance issues were a pretext to terminate her because the first
of her employment contracts ran from July 2014 through January 29, 2014; she was given a second

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contract with an increase in compensation from $8.00 per hour to $10.50 per hour, from January
29, 2014 to March 31, 2014; and a third contract, from April 1, 2014 until April 30, 2014 (though
with no increase in compensation rate), which was not renewed (Docket No. 117 at p. 21). She
states that until March 25, 2014 she never received a “coaching package,” “evaluation,” or
“personalized care guide,” a proposition with which Hewitt takes issue, further pointing out that
on April 1, 2014, Team Leader Livia Ramos informed plaintiff that she would be placed on a
personal improvement plan (Docket No. 99 at ¶ Y), albeit plaintiff alleges the plan was never put
in place (Docket No. 116-1 while denying ¶ Y); see also Docket No. 137 at p. 6. Hewitt, however,
asserts that Trainer Angel Rivera conducted three coaching sessions with plaintiff in April 2014,
and that plaintiff’s performance did not improve (Docket No. 99 at ¶ CC and Docket No. 137 at
p. 6). Two days prior to the termination, however, one supervisor told a large group of employees
in a meeting that he wanted “young, new blood,” “young dynamic individuals” (Docket No. 137
at p. 30)(citing PSUF ¶ 25). Viewing the record in plaintiff’s favor, she cannot show that the
reasons advanced by Hewitt for her termination were a pretext to conceal age animus, or even
more, that age was the “but for” reason behind plaintiff’s termination.
First, evidence of overall positive employment reviews may be used to establish pretext
when an employee is later terminated for poor performance. See, García-García v. Costco
Wholesale Corporation, 878 F.3d 411, 421 (1st Cir. 2017)(so acknowledging)(citing AcevedoParrilla, 696 F.3d at 140-143, where plaintiff terminated for failing to comply with the duties and
objectives of the position even though evidence showed that he had successfully complied with
performance improvement plan, was rated as “fully met expectations,” and received a bonus of
$13,166.00 for his performance, all seemingly incongruous facts that might lead a reasonable juror
to disbelieve that decision to terminate plaintiff was based purely on poor performance record).

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However, that was not the situation here. 6 If contract renewals on January 29, 2014 and March
31, 2014 means that plaintiff’s performance was satisfactory then, in the present context the past
performance do not call into question subsequent criticism. See, Leffel v. Valley Financial
Services, 113 F.3d 787, 795 (7th Cir. 1997)(so recognizing). Thus, the prior assessments do not
render the most recent negative appraisal of the employee’s performance inherently untrustworthy.
See, Kerns v. Capita Graphics, Inc., 178 F.3d 1011, 1018 (8th Cir. 1999)(articulating and applying
principle).
Second, plaintiff has not disputed the performance problems, of which she was aware. See,
La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1414-1415 (7th Cir.
1984)(dismissing age discrimination claim in part because plaintiff failed to show that defendant’s
reasons for termination lacked a basis in fact); Kerns, 178 F.3d at 1018 (plaintiff did not dispute
that she made errors at various points or that her actions produced undesirable consequences for
the company). And there is no evidence that other, similarly situated employees were treated more
favorably than plaintiff was. See, García-García, 878 F.3d at 424-425 (dismissing discrimination
claim in part because plaintiff failed to show that other similarly situated employees were treated
differently). Compare with Acevedo-Parrilla, 696 F.3d at 144-145 (pretextual nature of proffered
explanation found where similarly situated younger employee was not reprimanded or disciplined
for incidents similar to the problems that led to plaintiff’s termination). 7

6

Compare with García-García, 878 Fed. 3d at 421 (referring to plaintiff’s history of frequent promotions, high ratings on quality
inspections and high monthly average sales, albeit in circumstances of the case, that history was insufficient to show pretext).
7

See also, Benoit, 331 F.3d at 174 (rejecting discrimination claims of plaintiff unable to show that other similarly situated
employees outside of the protected group were treated differently); Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d at 40, 47-48
(summary judgment dismissing discrimination claim of plaintiff whose employment terminated but could not show that employer
treated him differently than it treated other employees).

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Third, the “young blood, new blood” comment is not probative of age animus. While
evidence of age related comments may be sufficient to support an inference of pretext, the lack of
a direct connection between the words and the employment action significantly weakens their
probative value. See, Meléndez, 622 F.3d at 54 (so observing). The record reflects no such
connection. See, Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 314 (6th Cir. 1989)
(plaintiff’s immediate supervisor’s comment that he “needed younger blood” held insufficient to
show pretext supporting a finding of age discrimination, as it was isolated, was made at a meeting
attended by a number of employees, was not directed at plaintiff, and did not negate plaintiff’s
substandard performance); Suárez v. Pueblo Intern., Inc., 229 F.3d 49, 56 (1st Cir. 2000)(comment
that company needed “new blood,” that plaintiff’s proposals were “tired,” and that another
employee “looked old” found too innocuous to transform managerial decisions into something
more invidious): Meléndez, 622 F.3d at 55 (even if ageist, remarks were insufficient to overcome
the evidence that employer proffered to show plaintiff was dismissed due to poor work
performance and thus failed to raise the inference that the real reason for the termination was
plaintiff’s age). At the end of the day, the record does not add up to the slightest suggestion of an
effort to deceive or cover up a hidden motive, and fails to indicate that there is a viable issue of
age-related discrimination to justify a trial under the ADEA. See, Ronda-Pérez, 404 F.3d at 48
(dismissing age discrimination claim under similar circumstances).
2. Law 100
Like the ADEA, Law 100 provides a cause of action in favor of persons who suffer
discrimination in their employment because of their age. See, P.R. Laws Ann. tit. 29 § 146
(prohibiting discrimination in protected categories including age, and laying out remedies for
violation).

In the absence of direct evidence of discrimination, a plaintiff may rely on

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circumstantial evidence through the “just cause” framework set in Article 3 of the statute. 8 At its
core, the framework consists of three stages: (1) a prima facie case; (2) burden shifting; and (3)
ultimate demonstration of discrimination. See, Caraballo-Cecilio v. Marina PDR Tallyman LLC,
2016 WL 6068117, *2 (D.P.R. Oct. 13, 2016)(describing framework).
A plaintiff establishes a prima facie case by demonstrating that: (1) she suffered an adverse
employment action; (2) the adverse action lacked just cause; and (3) there exists some basic fact
substantiating the type of discrimination alleged. See, Rodríguez v. Executive Airlines, Inc., 180
F.Supp.3d 129, 132-133 (D.P.R. 2016)(setting forth elements of prima facie case under Law 100);
Varela Teron v. Banco Santander de Puerto Rico, 257 F.Supp.2d 454, 466 (D.P.R.2003)(same). 9
A prima facie showing activates that the plaintiff has been the victim of discrimination. See,
Ramos v. Davis & Geck, Inc., 167 F.3d 727 (1st Cir. 1999)(pointing out effect of presumption);
García-García, 878 F.3d at 423 (same).
The employer may rebut the presumption proving legitimate, non-discriminatory grounds
for the challenged action. See, De Arteaga v. Pall Ultrafine Filtration Corp., 862 F.2d 940, 941
(1st Cir. 1988)(once activated, the presumption requires employer to prove that the action in
question was not discriminatory); Ramos-Santiago v. WHM Carib, LLC, 2017 WL 1025784, *6
(D.P.R. March 14, 2017)(citing López Fantauzzi v. 100% Natural, 181 D.P.R. 92, 123
(2011)(explaining, among other things, how employer may rebut the presumption). The burden is

8

Article 3 provides that the acts mentioned in Articles 1 and 2 (i.e. discharge, layoff, and failure to hire), shall be presumed to have
been committed in violation of Law No. 100 “whenever the same shall have been performed without just cause.” P.R. Laws Ann.
tit. 29 §§ 146, 148. The presumption is of a “controvertible character.” Id. at Section 148.

9

See also, Rodríguez-Torres v. Caribbean Forms Manufacturer, Inc., 399 F.3d 52, 62 (1st Cir. 2005)(validating jury instruction to
the effect that, for burden of proof in a Law No. 100 claim to shift to employer, plaintiff must prove that: she was in a protected
class, was fired, and the termination was unjustified); Menzel v. Western Auto Supply Co., 848 F.2d 327, 331 (1st Cir.
1988)(pointing out that “[i]f plaintiff fails to show that there was no just cause, the presumption of discrimination is not activated”).

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one of production and persuasion. See, García-García, 878 F.3d at 423 (so noting). Should the
employer carry this burden, the presumption of discrimination disappears, shifting the burden of
persuasion back to the employee to show, without the benefit of the presumption, that the action
was motivated by prohibited discrimination (in other words, that the reasons proffered were
pretextual). Id.
As it did under the ADEA, the court assumes that plaintiff made out a prima facie case of
discrimination under Law 100. Hewitt articulated – and produced – evidence of legitimate
nondiscriminatory reasons for its decision. Since the Law 100 plaintiff is in the same situation as
an ADEA plaintiff after the defendant has articulated a legitimate, nondiscriminatory reason for
its actions,” Álvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 F.3d 17, 28 (1st Cir.
1998), and plaintiff failed to show a genuine issue of material fact exists as to pretext under the
ADEA, she cannot prove it as to Law 100 either. The absence of actionable pretext results in
dismissal as a matter of law of both the ADEA and Law 100 claims. See, Velázquez-Fernández
v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 2007)(summary judgment dismissing ADEA and Law
No. 100 claims for lack of evidence to infer that employer’s justification was a pretext for
impermissible age discrimination); Morales-Guadalupe v. Oriental Bank and Trust, 2018 WL
1116544, *8 (D.P.R. February 26, 2018)(same).
C. Law 80
Law 80 requires the employer to pay a statutory indemnity to employees hired for
undefined term who are dismissed without just cause. See, Article 1 of Law 80, P.R. Laws Ann.
tit. 29 § 185a (stating payment requirement); García-García, 878 F.3d at 419-420 (describing
statute). In its objections to the R& R, Hewitt states that the undisputed evidence demonstrates
that plaintiff’s termination was based on her poor job performance, which constitutes “just cause”

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under Law 80 and for the same reason, that plaintiff’s action under that statute should be dismissed
(Docket No. 139 at p. 13).
Hewitt’s sole argument in the motion for summary judgment regarding the Law 80 claim
was that “assuming arguendo that plaintiff can establish that she was unjustly terminated in
violation of [Law 80}, her recovery would be limited” (Docket No. 137 at p. 32). And the law is
clear that when a dispositive motion is heard before a magistrate judge, the movant must make all
her arguments then and there, and cannot later add new arguments at subsequent stages of the
proceeding as objection to the magistrate judge’s proposed findings and conclusions. See, Cherox
Inc. v. Tip Top Construction Corp., 175 F.Supp.3d 1, 3 (D.P.R. 2016)(refusing to review, as
unpreserved, argument not seasonably presented to the magistrate judge). Given that Hewitt did
raise the just cause issue in its answer (Docket No. 17 at ¶¶ 17, 20), this ruling does not preclude
it from adequately raising the argument at a later stage consistently with the Case Management
Order.
D. Remaining Claims
The remaining claims involve retaliation, Law 379, the Civil Code, the Puerto Rico
Constitution, and Law 80. The court agrees with, and adopts the Magistrate Judge’s analysis,
conclusions and recommendations on these claims. 10

10

Plaintiff failed to respond to the motion for summary judgment on these items. The motion persuasively argues that dismissal is
appropriate as a matter of law as to them. Likewise, the court agrees with Magistrate Judge’s reasoning respecting the constitutional
claim, and why it should be dismissed.

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IV. CONCLUSION
Having made an independent, de novo, examination of the entire record, the Magistrate
Judge’s findings and conclusions are hereby ADOPTED in part and REJECTED in part as follows:
1. The request for summary judgment on plaintiff’s hostile work environment claim based on
national origin is DENIED under Title VII and Law 100;
2. The request for summary judgment with respect to plaintiff’s discrimination claim under
ADEA and Law 100 is GRANTED;
3. The request for summary judgment on plaintiff’s hostile work environment claim based on
age is GRANTED.
4. The request for summary judgment as to plaintiff’s retaliation claim is GRANTED;
5. The request for summary judgment regarding plaintiff’s claims under Law 379, the Civil
Code and the Puerto Rico Constitution is GRANTED; and
6. The request for summary judgment on plaintiff’s Law 80 claim is DENIED.
In view of the foregoing, only the national-origin based hostile work environment and Law
80 claims remain. An Order for the parties to submit a Joint Proposed Pretrial Conference Report
will follow.
SO ORDERED.
In San Juan, Puerto Rico, this 30th day of March, 2018.
s/Pedro A. Delgado-Hernández
PEDRO A. DELGADO-HERNÁNDEZ
United States District Judge