Feliciano-Monroig et al v. AT&T Mobility Puerto Rico, Inc. et al
Filing
136
ORDER granting 85 Motion for Summary Judgment. Plaintiffs' case is hereby dismissed with prejudice. Judgment shall be entered accordingly. Signed by Judge Jay A. Garcia-Gregory on 3/31/2019. (Attachments: # 1 Exhibit Findings of Fact) (MQ)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JORGE FELICIANO-MONROIG, et al.,
Plaintiffs,
CIVIL NO. 16-2810 (JAG)
v.
AT&T MOBILITY PUERTO RICO, INC., et al.,
Defendants.
OPINION AND ORDER
GARCIA GREGORY, D.J.
Plaintiffs Jorge O. Feliciano-Monroig (“Mr. Feliciano”), Madeline Salva Malaret, and
Minor G.F.S. (collectively, “Plaintiffs”) brought this action against AT&T Mobility Puerto Rico,
Inc. (“AT&T”) and Angel Rijos-Ortiz (“Mr. Rijos”) (collectively, “Defendants”)1 alleging age
discrimination and retaliation in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621 et seq.; Puerto Rico Law No. 100 of June 30, 1959, P.R. Laws Ann. tit.
29, § 146 (“Law No. 100”); and Puerto Rico Law No. 115 of December 20, 1991, P.R. Laws Ann. tit.
29, § 194a (“Law No. 115”). Docket No. 34. Plaintiffs also brought claims under the Second
Amendment to the U.S. Constitution and the right to privacy under the Constitution of Puerto
Rico. Id. Finally, Plaintiffs assert claims for intentional infliction of emotional distress, defamation,
and malicious prosecution under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws
Ann. tit. 31, §§ 5141-42. Id. Pending before the Court is Defendants’ Motion for Summary Judgment
Plaintiffs originally included AT&T of Puerto Rico Inc. as a defendant in this case. Docket Nos. 1; 4.
Pursuant to Plaintiffs’ Motion for Voluntary Dismissal, Docket No. 16, Partial Judgment was entered on
June 27, 2017 dismissing without prejudice Plaintiffs’ claims against AT&T of Puerto Rico Inc., Docket No.
20.
1
Civil No. 16-2810 (JAG)
2
seeking dismissal of all claims. Docket No. 85. For the reasons stated below, Defendants’ Motion
for Summary Judgment is hereby GRANTED, and Plaintiffs’ case is hereby DISMISSED WITH
PREJUDICE.
STANDARD OF REVIEW
A motion for summary judgment will be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits if any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a). A fact is in genuine dispute if it could be resolved in favor of either party,
and it is material if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep’t of Justice,
355 F.3d 6, 19 (1st Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986)).
The party moving for summary judgment bears the burden of showing the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Once the moving
party has properly supported [its] motion for summary judgment, the burden shifts to the
nonmoving party . . . .” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)
(quoting DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)). The non-movant must demonstrate
“through submissions of evidentiary quality [] that a trial worthy issue persists.” Iverson v. City of
Bos., 452 F.3d 94, 98 (1st Cir. 2006) (internal citations omitted).
In evaluating a motion for summary judgment, the Court must view the entire record “in
the light most hospitable to the party opposing summary judgment, indulging in all reasonable
inferences in that party’s favor.” Winslow v. Aroostook Cty., 736 F.3d 23, 29 (1st Cir. 2013) (quoting
Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir. 2000)). The court may safely ignore “conclusory
allegations, improbable inferences, and unsupported speculation.” Medina-Rivera v. MVM, Inc., 713
Civil No. 16-2810 (JAG)
3
F.3d 132, 134 (1st Cir. 2013) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990)). Throughout this process, courts cannot make credibility determinations or weigh the
evidence, as these are jury functions and not those of a judge. See Anderson, 477 U.S. at 255; GarciaGonzalez v. Puig-Morales, 761 F.3d 81, 99 (1st Cir. 2014) (internal citations omitted).
ANALYSIS2
I.
Individual Liability Claims
Defendants argue, and the Court agrees, that Plaintiffs lack actionable claims against Mr.
Rijos under the ADEA and Law 115 because there is no individual employee liability under these
statutes. Docket No. 85 at 6-7; see Otero-Merced v. Preferred Health Inc., 680 F. Supp. 2d 388, 390-91
(D.P.R. 2010). Plaintiffs concede this argument. Docket No. 95-2 at 13. Accordingly, the Court
DISMISSES WITH PREJUDICE Plaintiffs’ ADEA and Law 115 claims against Mr. Rijos.
II.
Time-Barred Claims
Defendants contend that any discrete employment action taken against Mr. Feliciano
before February 13, 2015 is not actionable pursuant to 29 U.S.C. § 626(d)(1)(B). Docket No. 85 at
7-10. Plaintiffs seem to concede this point. Docket No. 95-2 at 13 (“Plaintiff Feliciano-Monroig
filed a discrimination charge with EEOC December 9, 2015, [sic] all disciplinary actions taken
against Feliciano after February 13, 2015, took place within 300 days of the Charge filing date.”);
2
The Court includes its Findings of Fact as an attachment to this Opinion and Order. See Attachment # 1.
Civil No. 16-2810 (JAG)
4
id. at 14 (“Plaintiffs allegations regarding any events before February 13, 2015, are not time-barred
under Art. 1802/1803.”).3 The Court agrees.
The ADEA provides, in relevant part, that claimants seeking relief under the statute must
file an EEOC charge alleging age discrimination “within 300 days after the alleged unlawful
practice occurred.” 29 U.S.C. § 626(d)(1)(B). Discrete acts of discriminatory conduct occurring
more than 300 days before the filling of an EEOC charge are time-barred. Fontanez-Nunez v. Janssen
Ortho LLC, 447 F.3d 50, 55 (1st Cir. 2006); see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002) (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock
for filing charges alleging that act.”). In this Circuit, the following constitute discrete acts:
termination, failure to promote, failure to assign work, negative performance evaluations, and
letters of warning, among others. Ayala v. Shinseki, 780 F.3d 52, 57 (1st Cir. 2015).
Here, Mr. Feliciano first filed an EEOC charge on December 9, 2015. Any discrete act
occurring 300 days before that filing, i.e. before February 13, 2015, must be dismissed as timebarred. This means that all counseling notices, written warnings, final written warnings, negative
performance evaluations, and failure to assign work that occurred before that date are time-barred
and, thus, not actionable.4 As such, Plaintiffs’ only actionable disciplinary action is the February
2, 2016 Final Written Warning issued by Store Manager Miranda.5
Instead, Plaintiffs contend that events that occurred outside the 300-day window may be actionable as a
hostile work environment claim pursuant to the continuing violation doctrine. Id. at 17. The Court shall
address Plaintiffs’ hostile work environment claim below.
3
4
See Findings of Fact ¶¶ 31-45, 77, 107-08.
Moreover, to the extent that the events surrounding Mr. Feliciano’s November 3, 2014 call to AT&T’s
Ethics Hotline constitute a discrete discriminatory act, this claim also appears to be time-barred. Mr.
Feliciano filed a complaint against Defendants in state court on November 2015, Civil No. D DP2015-0821,
5
Civil No. 16-2810 (JAG)
5
Plaintiffs also allege the following discrete discriminatory acts: (i) that younger employees
were promoted to management, while Mr. Feliciano was denied such promotions due to the
disciplinary memoranda in his personnel file (failure to promote); and (ii) that, on at least one
instance, the Store Manager gave corporate accounts to other Retail Sales Consultants, but not to
Mr. Feliciano (failure to assign work). See Findings of Fact ¶ 118. Plaintiffs fail to provide any
indication as to when these claims occurred, thereby preventing the Court from assessing whether
these claims are also time-barred. Because the Court must view the record in the light most
favorable to Plaintiffs, the Court shall assume without deciding that these claims occurred after
February 13, 2015.
III.
ADEA Claims
The Court now turns to the crux of Plaintiffs’ Second Amended Complaint: unlawful age
discrimination and retaliation.
Pursuant to the ADEA, it is “unlawful for an employer to fail or refuse to hire . . . or
otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).
Under this statute, an employer may take an adverse action against an employee for any reason,
fair or unfair, so long as the action is not motivated by an age-based discriminatory animus. Hidalgo
v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 337 (1st Cir. 1997). Therefore, an employee has the
burden of showing, by a preponderance of the evidence, “that age was the ‘but-for’ cause of the
seeking damages for Mr. Rijos’s report to the Puerto Rico Police Department and the investigation that
ensued. By November 2015, Mr. Feliciano was thus aware of Mr. Rijos’s involvement in that police
investigation, yet the first EEOC charge mentioning this event was filed on June 20, 2016. Plaintiffs do not
provide an adequate excuse for this delay.
Civil No. 16-2810 (JAG)
6
employer’s adverse action.” Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 138 (1st Cir. 2012)
(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)).6
The framework for proving intentional age discrimination varies depending on the
availability of direct evidence. See id. “Direct evidence normally contemplates only those
statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the
contested employment decision.” Vesprini v. Shaw Contract Flooring Servs., Inc., 315 F.3d 37, 41 (1st Cir. 2002)
(quotation marks and citations omitted). It “does not include stray remarks in the workplace,
particularly those made by nondecision-makers or statements made by decisionmakers unrelated
to the decisional process itself.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 96 (1st Cir. 1996)
(citations omitted).
Here, the record contains no evidence of discriminatory statements made by a
decisionmaker directly related to the adverse actions alleged by Plaintiffs.7 Therefore, absent
direct evidence of intentional discrimination, Plaintiffs must meet the burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which requires that
Because the ADEA only protects “individuals who are at least 40 years of age,” 29 U.S.C. § 631(a), any
action that took place prior to Mr. Feliciano’s 40th birthday on November 3, 2009 is not actionable under
the statute. See Findings of Fact ¶¶ 31-32, 106-07.
6
The only instance that could potentially be construed as a discriminatory statement by a decisionmaker
occurred in 2014, when the Area Sales Manager stated in a staff meeting that Mr. Feliciano was a “necessary
affliction” allegedly after Mr. Feliciano had stated his age and years of service at AT&T. See Findings of
Fact ¶ 109. However, that statement does not reference Mr. Feliciano’s age, and Plaintiffs have failed to tie
it to a specific adverse employment action. See McMillan v. Mass. Soc. for Prevention of Cruelty to Animals, 140 F.3d
288, 301 (1st Cir. 1998) (noting that the “probativeness [of stray remarks] is circumscribed if they were
made in a situation temporally remote from the date of the employment decision, or if they were not related
to the employment decision in question.”) (citations omitted); see also Straughn v. Delta Air Lines, Inc., 250 F.3d
23, 36 (1st Cir. 2001) (“[M]ere generalized ‘stray remarks,’ arguably probative of bias against a protected
class, normally are not probative of pretext absent some discernible evidentiary basis for assessing their
temporal and contextual relevance.”) (citations omitted).
7
Civil No. 16-2810 (JAG)
7
the plaintiff must first make out a prima facie case for age
discrimination by showing that (i) [he] was at least 40; (ii) [his]
work was sufficient to meet the employer’s legitimate expectations;
(iii) [his] employer took adverse action against [him]; and (iv)
either younger persons were retained in the same position upon
[his] termination or the employer did not treat age neutrally in
taking the adverse action.
Del Valle-Santana v. Servicios Legales de P.R., Inc., 804 F.3d 127, 129-30 (1st Cir. 2015) (citation omitted).
Establishing a prima facie case creates a rebuttable presumption of discrimination and shifts the
burden to the employer to articulate a legitimate and nondiscriminatory reason for the adverse
employment action. Id. If the employer meets this burden of production, the presumption vanishes
and the plaintiff “must elucidate specific facts which would enable a jury to find that the reason
given is not only a sham, but a sham intended to cover up the employer’s real motive: age
discrimination.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991) (citations omitted); see St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (finding that claimant must prove “both that the
reason was false, and that discrimination was the real reason.”).
A claimant can establish pretext in a number of ways, such as by showing (1) that he was
treated differently than other similarly situated employees, see Kosereis v. Rhode Island, 331 F.3d 207,
213 (1st Cir. 2003); “that discriminatory comments were made by the key decisionmaker or those
in a position to influence the decision maker,” Santiago-Ramos, 217 F.3d at 55 (citation omitted); or
that there are “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons,” id. at 56 (citation omitted). However, “[i]n assessing
pretext, a court’s focus must be on the perception of the decisionmaker, that is, whether the
employer believed its stated reason to be credible.” Azimi v. Jordan’s Meats, Inc., 456 F.3d 228, 246
(1st Cir. 2006) (quotation marks and citations omitted).
Civil No. 16-2810 (JAG)
8
The burden of persuasion to show intentional age discrimination remains with the
plaintiff at all times. Gross, 557 U.S. at 177. In evaluating a motion for summary judgment, “the
critical question is whether or not the plaintiff has adduced minimally sufficient evidence to
permit a reasonable factfinder to conclude that he [experienced an adverse employment action]
because of his age.” Soto-Feliciano v. Villa Cofresi Hotels, Inc., 779 F.3d 19, 25 (1st Cir. 2015) (quotation
marks and citation omitted).
Plaintiffs allege both disparate treatment and hostile work environment. The Court will
address each in turn before turning to Plaintiffs’ retaliation claims.
A. Disparate Treatment8
Defendants argue that Plaintiffs’ disparate treatment claims should be dismissed because
Plaintiffs have failed to show that his age was the but-for cause of the employer’s adverse actions.
Docket No. 85 at 11-21. The Court agrees. Considering the record in the light most favorable to
Plaintiffs, the Court finds that they have failed to provide sufficient evidence to allow a reasonable
inference that age was the motivating factor for the contested employment actions.
The only discrete adverse employment actions that the Court can surmise from Plaintiffs’
allegations are (i) Mr. Rijos’s decision to contact the Puerto Rico Police Department in response
to Mr. Feliciano’s November 3, 2014 call to AT&T’s Ethics Hotline; (ii) the February 2, 2016 Final
The Court notes that Plaintiffs have listed a plethora of allegations as supporting both their disparate
treatment claims and their hostile work environment claim. However, disparate treatment claims should
be premised on discrete adverse actions, while a hostile work environment claim “must be based on one
unlawful employment practice of pervasive, insulting, discriminatory conduct that makes the plaintiff’s
day-to-day work environment severely abusive.” Moore v. Castro, 192 F. Supp. 3d 18, 46 (D.D.C. 2016); see
Nat’l R.R. Passenger Corp., 536 U.S. at 116, 118. The Court has parsed Plaintiffs’ arguments to determine which
actions should be analyzed under the disparate treatment claim and which should be analyzed as
supporting the hostile work environment claim.
8
Civil No. 16-2810 (JAG)
9
Written Warning; (iii) the failure to promote Mr. Feliciano; and (iv) that, on at least one instance,
the Store Manager assigned corporate accounts to other Retail Sales Consultants, but not to Mr.
Feliciano. Plaintiffs have failed to put forth any evidence that could show that any of these actions
were motivated by Mr. Feliciano’s age or that Defendants’ proffered reason is pretextual.
First, as to the events surrounding the November 3, 2014 call, assuming arguendo that this
constitutes an adverse employment action,9 the record shows that Mr. Rijos contacted the police
because he was concerned that Mr. Feliciano posed a threat to himself or others. This is
corroborated by the fact that a Retail Sales Consultant informed management that he was worried
about Mr. Feliciano’s emotional stability and the safety of the store’s employees in light of a
conversation he had with Mr. Feliciano and the fact that he had seen Mr. Feliciano bring a firearm
to the store in the past. See Findings of Fact ¶ 63. Mr. Rijos’s concerns are further corroborated by
an AT&T’s Ethics Hotline report and Richard Fernández’s statement, both of which state that,
during the call, Mr. Feliciano mentioned a female coworker committing suicide, that he was being
treated for depression, and that he was contemplating suicide. See Findings of Fact ¶¶ 48-62.
Considering that AT&T’s Ethics Hotline is operated by an independent third party, and that both
the hotline operator and Mr. Fernández are located outside Puerto Rico, the record contains no
evidence from which a reasonable jury could find that these individuals fabricated these
statements, much less that they lied to harass Mr. Feliciano. Indeed, there is no evidence that
either the hotline operator or Mr. Fernández ever met Mr. Feliciano. Thus, Defendants have
9
Plaintiffs have pointed to no evidence showing that this action affected Mr. Feliciano’s employment.
Civil No. 16-2810 (JAG)
10
established a nondiscriminatory reason for Mr. Rijos’s action and Plaintiffs have not shown this
reason was a pretext for discrimination.10
Second, on February 2, 2016, the Store Manager issued a Final Written Warning to Mr.
Feliciano because he violated AT&T’s Code of Business Conduct (the “COBC”). Plaintiffs have
failed to provide any evidence, other than conclusory statements, linking this employment action
to Mr. Feliciano’s age. Defendants, on the other hand, have shown that this disciplinary action
was issued after an AT&T investigation revealed that Mr. Feliciano misused customer
information; and worked on a customer’s account without the account holder present, in violation
of AT&T’s COBC. Plaintiffs have not put forth any evidence that would cast doubt on Defendants’
basis for issuing the warning.11 Therefore, Plaintiffs have failed to show causation or pretext.
Third, Plaintiffs also claim that younger employees were promoted to management, while
Mr. Feliciano was denied such promotions due to the disciplinary memoranda in his personnel
file. This argument is flawed in several respects. First, the only evidence supporting this argument
is Mr. Feliciano’s deposition testimony. Second, Plaintiffs have failed to put forth evidence
challenging the basis for these memoranda, except for their own conclusory allegations that they
were unfounded. Third, this failure to promote claim fails as a matter of law because Plaintiffs
In an attempt to show pretext, Plaintiffs rely on deposition testimony from 2 Retail Sales Consultants
who stated that they never felt threatened by Mr. Feliciano and that the police were never called to their
workplace because of Mr. Feliciano. See Findings of Fact ¶¶ 70-71. Plaintiffs also argue that Mr. Feliciano
had not committed a crime and that there was no restraining order issued against him. Id. at ¶ 67. However,
this does not, without more, negate that Mr. Feliciano could have been emotionally unstable or expressed
suicidal ideations during the November 3, 2014 call.
10
11 It is worth noting that Mr. Feliciano filed a grievance with the CWA to challenge this disciplinary action,
but the CWA closed the grievance because Mr. Feliciano did not cooperate with the grievance process and
because the union found that, based on the available information, it would not prevail in challenging the
warning. See Findings of Fact ¶ 47.
Civil No. 16-2810 (JAG)
11
have not even alleged that Mr. Feliciano applied for an open management position. See Velez v.
Janssen Ortho, LLC, 467 F.3d 802, 807 (1st Cir. 2006) (noting that failure to promote claims require
evidence that the plaintiff applied for an open position). Finally, merely hiring a younger employee
does not equate to age discrimination. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 512 (4th Cir.
1994) (noting that replacing older employees with younger employees is not dispositive of age
discrimination); Turner v. N. Am. Rubber, Inc., 979 F.2d 55, 59 (5th Cir. 1992) (same); Chappell v. GTE
Prods. Corp., 803 F.2d 261, 267 (6th Cir. 1986) (same).
Finally, Plaintiffs claim that, on at least one instance, the Store Manager gave corporate
accounts to other Retail Sales Consultants, but not to Mr. Feliciano. See Findings of Fact ¶ 118.
Once again, the only evidence supporting this claim is Mr. Feliciano’s deposition testimony. More
importantly, Plaintiffs have failed to articulate why they believe Mr. Feliciano’s age was the
motivating factor for this conduct.
Plaintiffs have simply failed to show that any of these actions were motivated by age-based
discriminatory animus. Not only is the record devoid of any age-related comment by a
decisionmaker, but Plaintiffs have failed to provide sufficient evidence to create a genuine issue of
fact as to whether Mr. Feliciano was treated differently than similarly situated employees. The
only evidence supporting such a claim is (i) that 3 Assistant Store Managers are less than 40 years
old; (ii) that 4 Assistant Store Managers have less seniority than Retail Sales Consultant Ramos,
who is over 40 years old; (iii) that Ms. Ramos believes that her supervisors targeted her more often
than other employees; and (iv) that between 2012 and 2015, the positions of 2 employees, who
were older than 40 years old, were eliminated. See Findings of Fact ¶¶ 95, 101-102. This is
insufficient to show disparate treatment, especially considering the evidence presented by
Defendants. The record shows that, between April 2013 and December 2015, only 5 Retail Sales
Civil No. 16-2810 (JAG)
12
Consultants from the Plaza Las Américas I store were terminated, and they were all under 40
years of age. Id. at 96. AT&T has not terminated any employee from that store since May 1, 2015.
Id. at 97. Additionally, during the relevant time period, the Store Managers that worked at the
Plaza Las Américas I store were older than 40 years of age. Id. at 98. In addition, 2 Assistant Store
Managers, 6 Retail Sales Consultants, and 3 Sales Support Representatives were older than 40
years of age. Id. All these employees continue working at AT&T, except for two who resigned. Id.
at 99. Finally, Mr. Feliciano remains an active employee at AT&T whose job duties, compensation,
commission structure, and benefits have remained unchanged. Id. at 6.
Accordingly, making all reasonable inference in favor of Plaintiffs, the Court finds that
no reasonable jury could find, by a preponderance of the evidence, the Mr. Feliciano experienced
disparate treatment on the basis of age.12
The Court also notes that Plaintiffs have actually put forth other motivations for the alleged harassment
experienced by Mr. Feliciano, including Mr. Feliciano’s medical conditions, seniority at AT&T, and his
reporting of an extramarital affair between 2 assistant managers. None of these reasons are related to Mr.
Feliciano’s age and, thus, further weaken Plaintiffs’ ADEA claims. See Hazen Paper Co. v. Biggins, 507 U.S. 604,
608-09 (1993) (“The Courts of Appeals repeatedly have faced the question whether an employer violates
the ADEA by acting on the basis of a factor, such as an employee’s pension status or seniority, that is
empirically correlated with age. We now clarify that there is no disparate treatment under the ADEA when
the factor motivating the employer is some feature other than the employee’s age.”) (citations omitted);
Williams v. Gen. Motors Corp., 656 F.2d 120, 131 (5th Cir. 1981) (“[S]eniority and age discrimination are
unrelated. The ADEA targets discrimination against employees who fall within a protected age category,
not employees who have attained a given seniority status. This is borne out, to be sure, by the simple
observation that a 35-year old employee might have more seniority than a 55-year old employee.”).
12
Civil No. 16-2810 (JAG)
13
B. Hostile Work Environment
Defendants also argue that Plaintiffs’ hostile work environment claim fails because they
lack sufficient evidence to establish the required degree of severity or pervasiveness. Docket No.
85 at 21-29. The Court agrees.
To succeed on a hostile work environment claim, Plaintiffs must
must provide sufficient evidence from which a reasonable factfinder
could determine that the workplace was permeated with
discriminatory intimidation, ridicule, and insult that was
sufficiently severe or pervasive to alter the conditions of . . . [his]
employment and create an abusive working environment. The
offensive conduct, in other words, must be [(1)] severe [or]
pervasive enough to create an objectively hostile or abusive work
environment and [(2)] subjectively perceived by the victim as
abusive.
Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 91 (1st Cir. 2018) (quotation marks and citation
omitted). A court assessing whether a plaintiff has made such a showing “look[s] to all the
circumstances, including the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Nat’l R.R. Passenger Corp., 536 U.S. at 116
(quotation marks and citation omitted).
Plaintiffs put forth a multitude of incidents to support their hostile work environment
claim. First, they allege that fellow Retail Sales Consultants would call Mr. Feliciano old, that his
birth certificate was “written in stone,” and that he should retire.13 Plaintiffs then fault
Mr. Feliciano also claims that, on an unspecified date, his new truck was scratched “side-to-side” at the
Plaza Las Américas parking garage, but admits not knowing who was responsible for this, simply stating
that he assumes it was done by another AT&T employee because he or she wanted his work schedule. Not
only is this an entirely speculative claim, but a dispute over work schedules is not age-related.
13
Civil No. 16-2810 (JAG)
14
management for failing to take corrective action, without even alleging that Mr. Feliciano
reported these issues to his supervisors. Plaintiffs also claim that management repeatedly issued
disciplinary observations and memoranda that were either frivolous—relying entirely on Mr.
Feliciano’s conclusory statements to support this point—or not intended for him. They further
argue that Mr. Feliciano’s supervisors refused to change damaged company equipment on at least
3 instances, changed his work schedule without notice, would not help him when he requested
assistance, met with Mr. Feliciano twice to discuss disciplinary actions without the presence of a
union representative, once summoned him to a meeting on his day off, would not fix his
attendance record but would do so for other employees, and once referred to him as a “necessary
affliction”14 after Mr. Feliciano stated his age and years of service at AT&T.
These incidents are insufficient to establish a hostile work environment. First, none of
these events are threatening or objectively humiliating. Second, Plaintiffs have not put forth
sufficient factual allegations to show that this actions unreasonably interfered with Mr.
Feliciano’s work performance. Third, these allegations are not sufficiently severe, and the record
provides no insight as to the frequency of this conduct. See Rivera-Rivera, 898 F.3d at 93 (noting
that “being called ‘vieja’ or ‘worthless’ on discrete, isolated occasions might not rise to the level of
severity necessary to demonstrate an objectively hostile work environment” unless they are
sufficiently frequent and finding sufficient frequency where the plaintiff “produce[d] evidence
that she was taunted about her age nearly every single day for over two years.”). Fourth, Plaintiffs
have not explained why they believe management’s conduct was motivated by age-based
14
Plaintiffs, however, admit that this supervisor was admonished for this comment at a later meeting.
Civil No. 16-2810 (JAG)
15
discriminatory animus.15 See Rivera-Rivera, 898 F.3d at 92 (noting that the plaintiff must “tie her
mistreatment to her membership in a protected class.”).16 “[S]imple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment to establish an objectively hostile or abusive work
environment.” Rivera-Rivera, 898 F.3d at 93 (quotation marks and citation omitted). Plaintiffs have
failed to put forth sufficient evidence to show anything more than teasing and isolated incidents.
For these reasons, Plaintiffs’ hostile work environment claim is hereby DISMISSED WITH
PREJUDICE.
C. Retaliation
Plaintiffs’ similarly fail to adduce sufficient evidence for their retaliation claims to survive
summary judgment. The ADEA’s anti-retaliation provision provides that
It shall be unlawful for an employer to discriminate against any of
his employees or applicants for employment . . . because such
individual . . . has opposed any practice made unlawful by this
section, or . . . has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or litigation under
this chapter.
15 In fact, some of Plaintiffs’ allegations include incidents that occurred before Mr. Feliciano turned 40 years
old. See Findings of Fact ¶¶ 106-108. The fact that Plaintiffs themselves argue that Mr. Feliciano began to
experience mistreatment or harassment before his 40th birthday suggests that age was not the but-for
cause of the conduct at issue in this case.
It is also noteworthy that Plaintiffs have seemingly been unable to find a single witness to corroborate
that this conduct indeed occurred and Mr. Feliciano’s deposition testimony as to these events is
insufficiently supported with particularized factual information. See Perez v. Volvo Car Corp., 247 F.3d 303,
316 (1st Cir. 2001) (“Affidavits purporting to describe meetings or conversations need not spell out every
detail, but to receive weight at the summary judgment stage they must meet certain rudiments. Statements
predicated upon undefined discussions with unnamed persons at unspecified times are simply too
amorphous to satisfy the requirements of Rule 56(e), even when proffered in affidavit form by one who
claims to have been a participant.” (citations omitted).
16
Civil No. 16-2810 (JAG)
16
29 U.S.C. § 623(d). The McDonnell Douglas burden-shifting framework also applies to ADEA
retaliation claims. Soto-Feliciano, 779 F.3d at 30. To establish a prima facie case of retaliation, Mr.
Feliciano must show that “(i) he engaged in ADEA-protected conduct, (ii) he was thereafter
subjected to an adverse employment action, and (iii) a causal connection existed between the
protected conduct and the adverse action.” Id. If Plaintiffs make this showing, “the burden of
production shifts to the defendant . . . [who] must offer a legitimate, non-retaliatory reason for the
adverse employment action.” Id. (citation omitted). However, “the ultimate burden falls on the
plaintiff to show that the employer’s proffered reason is a pretext masking retaliation.” Ramirez
Rodriguez v. Boehringer Ingelheim Pharms., Inc., 425 F.3d 67, 84 (1st Cir. 2005) (quotation marks and
citation omitted). To survive summary judgment, though, Plaintiffs “bear[] only the lighter
burden of showing that a genuine issue of material fact exists about whether retaliation was the
true motive for the adverse employment action in question.” Soto-Feliciano, 779 F.3d at 31.
Turning to the facts of this case, Plaintiffs argue the following in support of their
retaliation claims
Feliciano was given a disciplinary memo on his birthday and at
various times was subjected to unwarranted/unintended
disciplinary actions, while under protected age group employees
were chosen for management opportunities, and over protected age
group employees were targeted for unjustified disciplinary actions
by Assistant Store Manager . . . Adverse employment action was
taken, shortly after Feliciano complained of a hostile work
environment, when under protected age group ASM falsely
prosecuted him with threats of disciplinary actions.
Docket No. 95-2 at 40-41. Plaintiffs also contend that (i) Mr. Rijos’s decision to contact the police
after Mr. Feliciano’s November 3, 2014 call to AT&T’s Ethics Hotline and (ii) the February 2, 2016
Final Written Warning were retaliatory acts.
Civil No. 16-2810 (JAG)
17
As an initial matter, it appears that the first time Mr. Feliciano complained about agebased discrimination and harassment was on December 9, 2015 when he filed his first EEOC
charge.17 The ADEA’s anti-retaliation provision “protects individuals who invoke the statute’s
protections.” Ramirez Rodriguez, 425 F.3d at 84. Therefore, the Court questions whether any of Mr.
Feliciano’s complaints prior to December 9, 2015 qualify as ADEA-protected conduct considering
that they do not mention discrimination based on age. In any case, Plaintiffs have failed to show a
causal nexus between his protected conduct and the adverse employment actions.
As to the incidents surrounding Mr. Feliciano’s November 3, 2014 Ethics Hotline call and
the February 2016 Final Written Warning, as discussed above, supra at III.A, Defendants have
provided legitimate, non-discriminatory reasons for these actions and Plaintiffs have failed to
show these are pretextual. What is more, Plaintiffs admitted that Mr. Rijos did not have personal
knowledge of the contents of Mr. Feliciano’s conversations with AT&T’s Ethics Hotline, other
than the information that was relayed to him, meaning that Mr. Rijos did not know that Mr.
Feliciano had complained about management on a prior call. That alone is sufficient to defeat
Plaintiffs’ claim that Mr. Rijos’s call to the police was retaliatory.
Regarding the February 2016 Final Written Warning, the investigation supporting this
disciplinary step commenced before Mr. Feliciano filed the December 2015 EEOC charge. The
record shows that the person responsible for this investigation conducted interviews on
November 6 and December 4, 2015. See Findings of Fact ¶ 46. Moreover, Plaintiffs have pointed to
no evidence showing that the Store Manager who issued this Final Written Warning was aware
Plaintiffs have not pointed to any earlier instance when Mr. Feliciano claimed that the harassment he
was complaining about was due to his age, nor has the Court found any such allegation in the reports of
his calls to AT&T’s Ethics Hotline.
17
Civil No. 16-2810 (JAG)
18
that Mr. Feliciano had filed an EEOC charge. Plaintiffs cannot allege that Defendants retaliated
against Mr. Feliciano for engaging in protected conduct without showing that Defendants knew
about the protected conduct. See Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 177 (1st
Cir. 2015) (“[T]here must be proof that the decisionmaker knew of the plaintiff’s protected
conduct when he or she decided to take the adverse employment action.”).
With regard to the remaining allegations, they are conclusory or simply too vague.
Plaintiffs do not specify the protected conduct that allegedly motivated these actions, nor do they
make any effort to show how these actions are causally connected to that protected conduct. See,
e.g., Rivera-Rivera, 898 F.3d at 95 (finding summary judgment unwarranted where the plaintiff
presented evidence that her employer threatened her with termination on a daily basis specifically
because she reported him for alleged discrimination).
Plaintiffs’ evidence of retaliatory motive rests on temporal proximity alone. While in
certain cases that may be enough to raise a genuine issue of fact as to a retaliation claim, it is not
so in this case because Defendants have provided ample evidence of a legitimate,
nondiscriminatory motive for its actions. Ramirez Rodriguez, 425 F.3d at 85 (“[C]hronological
proximity does not by itself establish causality, particularly if [t]he larger picture undercuts any
claim of causation.”) (quotation marks and citation omitted). In sum, Plaintiffs have not presented
evidence from which a reasonable jury could infer that Defendants retaliated against him for
engaging in ADEA-protected activity. Accordingly, Plaintiffs’ retaliation claims are DISMISSED
WITH PREJUDICE.
Civil No. 16-2810 (JAG)
IV.
19
Second Amendment Claim
Plaintiffs also allege that Defendants infringed Mr. Feliciano’s Second Amendment right
to bear arms. Docket No. 34 at 11. However, “the constitutional right to bear arms restricts the
actions of only the federal or state governments or their political subdivisions, not private actors.”
Fla. Retail Fed’n, Inc. v. Attorney Gen. of Fla., 576 F. Supp. 2d 1281, 1295 (N.D. Fla. 2008) (citations
omitted); see United States v. Cruikshank, 92 U.S. 542, 553 (1875) (noting that the Second Amendment
“has no other effect than to restrict the powers of the national government.”); Caetano v.
Massachusetts, 136 S. Ct. 1027, 1028 (2016) (citations omitted) (“It is settled that the Second
Amendment protects an individual right to keep and bear arms that applies against both the
Federal Government and the States.”) (Alito, J. and Thomas, J., concurring) (citations omitted).
Where no state action is involved, a Second Amendment claim cannot survive. See Bruley v. Vill.
Green Mgmt. Co., 592 F. Supp. 2d 1381, 1387 (M.D. Fla. 2008), aff’d sub nom. Bruley v. LBK, LP, 333 F.
App’x 491 (11th Cir. 2009). For this reason, Plaintiffs’ Second Amendment claim is hereby
DISMISSED WITH PREJUDICE.
V.
Supplemental State Law Claims
A. Law 100 and Law 115 Claims
The Parties agree that claims under Law 100 and Law 115 are subject to the same analysis
as their federal counterparts. Docket Nos. 85 at 36-37; 95-2 at 41. Specifically, “[o]n the merits, age
discrimination claims asserted under the ADEA and under Law 100 are coterminous.” Davila v.
Corporacion de P.R. para la Difusion Publica, 498 F.3d 9, 18 (1st Cir. 2007). Similarly, “ADEA and Law
115 retaliation claims are similar and have parallel evidentiary mechanisms.” Baerga-Castro v. Wyeth
Civil No. 16-2810 (JAG)
20
Pharm., 2009 WL 2871148, at *13 (D.P.R. Sept. 3, 2009); Sanchez Borgos v. Venegas Const. Corp., 2009
WL 928717, at *6-7 (D.P.R. Mar. 31, 2009). As such, the Court DISMISSES WITH PREJUDICE
Plaintiffs’ Law 100 and Law 115 claims for the same reasons it dismisses Plaintiffs’ ADEA claims.
See supra III.
B. Right to Privacy
Plaintiffs also allege that Defendant’s encroached on their constitutional right to privacy.
Docket No. 34 at 11. However, Plaintiffs have not even attempted to identify the relevant
constitutional provision, nor have they put forth an adequate argument as to why Defendants
should be found liable under this theory. In fact, the section addressing this claim in Plaintiffs’
Opposition consists of 3 sentences:
Both co-plaintiffs Salva and his daughter, minor G.F.S.[,] have
viable claims for violation of their right to privacy, when Feliciano’s
employer sent the police to their home without justification. Coplaintiff Salva, Feliciano’s companion, was interrogated by police
officers in presence of their daughter. Salva testified on behalf of
Feliciano at the Police Department administrative hearing.
Docket No. 95-2 at 42. This is wholly insufficient to survive summary judgment. “[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,
are deemed waived. It is not enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh
on its bones.” Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 24 (1st Cir. 2017) (quoting United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). Accordingly, Plaintiffs’ right to privacy claim is
hereby DISMISSED WITH PREJUDICE.
Civil No. 16-2810 (JAG)
21
C. Malicious Prosecution
Plaintiffs allege malicious prosecution based on Mr. Rijos’s decision to contact the Puerto
Rico Police Department in response to Mr. Feliciano’s November 3, 2014 call to AT&T’s Ethics
Hotline. Docket No. 34 at 11-13. “Malicious prosecution is the unjustified use of legal proceedings.”
Segarra Jimenez v. Banco Popular, Inc., 421 F. Supp. 2d 452, 459 (D.P.R. 2006). Under Puerto Rico law,
such a claim is brought under Article 1802 and requires “(i) the institution and instigation of
criminal proceedings against the claimant; (ii) maliciously and without probable cause; (iii)
which ended favorably for the claimant; and (iv) whereby the claimant suffers damages.” AbreuGuzman v. Ford, 69 F. Supp. 2d 274, 285 (D.P.R. 1999) (citations omitted), aff’d 241 F.3d 69 (1st Cir.
2001).
Plaintiffs have failed to meet the first prong. “Criminal proceedings are not commenced
until process is issued to bring the accused before a judicial officer, the accused is arrested, or an
indictment is returned or an information is filed against him.” Boschette v. Buck, 916 F. Supp. 91, 96
(D.P.R. 1996) (citing Restatement (Second) of Torts § 654 (1977)). Plaintiffs have not shown that
Mr. Feliciano was arrested, brought before a judicial officer, or indicted. Moreover, the mere fact
that Mr. Rijos “furnish[ed] information to a . . . policeman . . . does not constitute by itself the
instigation which is required as element of this action,” Raldiris, Etc., Et Al., Demandantes Y Recurridos
v. Levitt & Sons of P.R., Inc., 3 P.R. Offic. Trans. 1087, 1092 (1975).
Plaintiffs have likewise failed to show malice. “[M]alice is not presumed,” so a plaintiff
“must prove that defendant acted maliciously and without the existence of probable cause.” Id. at
1093. Probable cause in this context has been defined as a “suspicion founded upon circumstances
sufficiently strong to warrant a reasonable man in the belief that the charge is true.” Abreu-Guzman,
Civil No. 16-2810 (JAG)
22
69 F. Supp. 2d at 285 (citation omitted). As discussed above, supra at III.A, the record does not
support the conclusion that Mr. Rijos acted maliciously. Instead, it shows that Mr. Rijos had
ample basis to be concerned about Mr. Feliciano’s emotional state and, thus, was justified in
alerting the police, especially since he knew that Mr. Feliciano owned a firearm. See Findings of
Fact ¶¶ 53-66. For these reasons, Plaintiffs’ malicious prosecution claim is hereby DISMISSED
WITH PREJUDICE.
D. Defamation
Plaintiffs’ defamation claim is also based on Mr. Rijos’s decision to contact the Puerto Rico
Police Department in response to Mr. Feliciano’s November 3, 2014 call. Docket Nos. 34 at 11-13;
95-2 at 43-44. Defendants also seek dismissal of this claim, Docket No. 85 at 40-42, and the Court
agrees. Defamation under Puerto Rico law “requires that the plaintiff prove (1) that the
information is false, (2) that plaintiff suffered real damages, and (3) in the case of a private figure
plaintiff, that the publication was negligent.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 98
(1st Cir. 1996) (citations omitted). Because Plaintiffs have not shown that Mr. Rijos’ statements
to the police were false or negligently made, see supra at III.A, Plaintiffs’ defamation claim fails and
must, thus, be DISMISSED WITH PREJUDICE.
E. Intentional Infliction of Emotional Distress
Finally, Plaintiffs allege that Defendants are liable for intentional infliction of emotional
distress pursuant to Puerto Rico law. Docket No. 34 at 10-11. The Court disagrees.
Liability under this cause of action requires a showing “1) that the defendant engaged in
extreme and outrageous conduct; 2) that such conduct was intended to cause the plaintiff severe
emotional distress, or was done with reckless disregard for the plaintiff’s emotional state; 3) that
Civil No. 16-2810 (JAG)
23
the plaintiff suffered severe emotional distress; and 4) that the severe distress is causally related
to the extreme and outrageous conduct.” Soto-Lebron v. Fed. Express Corp., 538 F.3d 45, 57 (1st Cir.
2008) (citations omitted). Even accepting Plaintiffs’ proffered version of the events as true,
Plaintiffs have simply failed to show that Defendants engaged in conduct “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 58 (citations
omitted). Accordingly, Plaintiffs’ intentional infliction of emotional distress claim is hereby
DISMISSED WITH PREJUDICE.
CONCLUSION
For the aforementioned reasons, Defendants’ Motion for Summary Judgment, Docket No.
85, is hereby GRANTED and Plaintiffs’ case is hereby DISMISSED WITH PREJUDICE.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, March 31, 2019.
s/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?