Maria De Los A. Pages-cahue, Maria Pilar Lopez, and Gilbertoizquierdo-santiago, Plaintiffs-appellants, v. Iberia Lineas Aereas De Espana, Defendant-appellee, 82 F.3d 533 (1st Cir. 1996)

Plaintiffs-Appellants Maria de los A. Pages-Cahue ("Pages"), Maria Pilar Lopez ("Lopez"), and Gilberto Izquierdo-Santiago ("Izquierdo") (collectively, "Appellants") appeal the district court's grant of summary judgment to Appellee Iberia Lineas Aereas de Espana ("Iberia") on claims of age discrimination under the Age Discrimination in Employment Act of 1967, as amended ("the ADEA"), 29 U.S.C. 621 et seq. Pages also seeks appeal of the district court's grant of summary judgment to Iberia on her claim under Puerto Rico Law No. 80, 29 L.P.R.A. § 185a et seq.¹  Lopez appeals the district court's grant of summary judgment to Iberia on her claim for an unpaid balance of sick leave and overtime compensation due under Puerto Rico Law No. 379 of May 15, 1948, as amended, 29 L.P.R.A. 271 et seq., ("Law 379" or "Puerto Rico Overtime Compensation Act"), and Puerto Rico Law No. 96 of June 26, 1959, as amended, 29 Laws of P.R.Anno. 246 et seq. ("Law 96"). We affirm.

The following facts are not in dispute. In 1992, Iberia's net loss for its San Juan operations was $14,305,504. For the seven prior years, plus the year 1992, Iberia's net loss in San Juan was $136,795,292. Beginning in the year 1991, Iberia implemented a worldwide reorganization of its operations, including substantial cutbacks in Puerto Rico. During the time period from May 1991 to November 1992, 14 of Iberia's 32 employees in Puerto Rico were laid off or otherwise ceased to work for Iberia. On September 30, 1992, the three appellants in this case were discharged.

This appeal also contains several disputed facts. Because we must determine whether the disputes of fact are both genuine and material, we discuss these disputed facts in the course of our discussion of the law.

We examine a grant of summary judgment de novo, viewing the evidence, and all reasonable inferences therefrom, in the light most favorable to the party resisting summary judgment. Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir. 1995); see LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, --- U.S. ----, 114 S. Ct. 1398, 128 L. Ed. 2d 72 (1994). Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see LeBlanc, 6 F.3d at 841; Goldman v. First National Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993).

In ADEA discrimination lawsuits, plaintiffs bear the ultimate burden of proving that their ages were the determinative factor in their discharge, "that is, that [they] would not have been fired but for [their] age." LeBlanc, 6 F.3d at 841; see Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991), cert. denied, 504 U.S. 985, 112 S. Ct. 2965, 119 L. Ed. 2d 586 (1992). "At least where there is little overt evidence of age discrimination, the case usually follows the ritualized burden-shifting paradigm" presented in McDonnell Douglas v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26, 36 L. Ed. 2d 668 (1973). LeBlanc, 6 F.3d at 841. See, e.g., Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1117 (1st Cir. 1993); Lawrence v. Northrop Corp., 980 F.2d 66, 68 (1st Cir. 1992); Mesnick, 950 F.2d at 823-24.

Under the McDonnell Douglas test, plaintiffs must open with a prima facie showing of certain standardized elements suggestive of possible discrimination. LeBlanc, 6 F.3d at 842. It is undisputed that the employment actions that gave rise to the instant case took place as part of a reduction in Iberia's work force. As a result, each of the Appellants was required to make a prima facie showing (1) that he or she fell within the ADEA's protected age group--that is, more than forty years of age; (2) that he or she met Iberia's legitimate performance expectations; (3) that he or she experienced adverse employment action; and (4) that Iberia did not treat age neutrally or retained younger persons in the same position. See Woodman, 51 F.3d at 1091; Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir. 1993).

Establishment of the prescribed prima facie case creates a presumption that the employer engaged in impermissible age discrimination. LeBlanc, 6 F.3d at 842; Goldman, 985 F.2d at 1117. However, to rebut this presumption, the employer need only "articulate a legitimate nondiscriminatory reason for the employee's termination." LeBlanc, 6 F.3d at 842; Goldman, 985 F.2d at 1117. Once the employer meets this burden in an age discrimination case, however, "the McDonnell Douglas presumption 'drops out of the picture.' " LeBlanc, 6 F.3d at 843 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993)). The trier of fact then must simply determine, based on the evidence, whether the employer's decision to terminate the plaintiff was motivated by intentional age discrimination. LeBlanc, 6 F.3d at 843.

In the context of a summary judgment proceeding, once the employer articulates a legitimate, nondiscriminatory basis for its adverse employment decision, the plaintiff, "before becoming entitled to bring the case before the trier of fact, must show evidence sufficient for the factfinder reasonably to conclude that the employer's decision to discharge him or her was wrongfully based on age." LeBlanc, 6 F.3d at 843; see Goldman, 985 F.2d at 1117; Lawrence, 980 F.2d at 69-70. Direct or indirect evidence of discriminatory intent may suffice, but "the evidence as a whole ... must be sufficient for a reasonable factfinder to infer that the employer's decision was motivated by age animus." Connell v. Bank of Boston, 924 F.2d 1169, 1172 n. 3 (1st Cir. 1991); see LeBlanc, 6 F.3d at 836; Goldman, 985 F.2d at 1117. Thus, a district court's grant of summary judgment to an employer will be upheld if the record is devoid of adequate direct or circumstantial evidence of the employer's discriminatory intent.

We treat Lopez' and Izquierdo's respective appeals together because the same case law governs both.

The district court found that Lopez failed to present a prima facie case. It found that while she satisfied the first three required elements of the prima facie case--she belongs to the protected class, her job performance was adequate, and she was discharged--she failed to satisfy the fourth element. That is, she failed to show either that Iberia did not treat age neutrally or that younger persons were retained in the same position. Here we assume, without concluding, that Lopez has demonstrated a prima facie case, since doing so does not alter the outcome of our analysis. In contrast, the district court concluded that Izquierdo demonstrated a prima facie case, but that he failed to present sufficient evidence for a reasonable trier of fact to infer that Iberia's decision to terminate him was motivated by age animus.

On appeal, Lopez argues that the district court erred because, in fact, she did produce evidence both that Iberia did not treat age neutrally and that younger persons were retained to do her functions. With respect to age neutrality, Lopez asserts that Iberia never considered her seniority in its decision to terminate her, as she argues is required by Puerto Rico Law No. 80.²  However, she cites no authority for the proposition, which we reject, that Puerto Rico Law modifies the ADEA to take into account discrimination against more senior employees, not just older employees. She also points to the fact that, during the reduction in force, she was not offered employment alternatives made available to Galo Beltran ("Beltran") (age 35) and Ernesto Rodriguez ("Rodriguez") (age 48). Furthermore, Lopez also maintains that her functions were taken over by a younger employee, Alga Rivera ("Rivera") (age 33), hired soon after Lopez' termination.

Similarly, Izquierdo (age 45) contends on appeal that the fact that he was not considered for retention or immediate re-hiring as a Sales Agent, as Beltran and Rodriguez³  were, shows that Iberia did not treat age neutrally in the course of its reduction in force. Izquierdo also alludes to a younger individual in a different department than Sales, who was allegedly offered the opportunity to continue work at a lower salary. However, since Izquierdo failed to proffer any evidence that this other department experienced a reduction in force at a similar time period, or that Izquierdo was qualified for this position, it would plainly be unreasonable to infer a lack of age neutrality from this evidence. As a result, we consider only Izquierdo's arguments regarding Beltran and Rodriguez. We note that Izquierdo does not point to evidence contravening Iberia's position that Beltran and Rodriguez were simply re-hired at lower pay to do the same job they had done previously. Neither Lopez or Izquierdo has argued or adduced evidence that Sales Agents Beltran and Rodriguez were not, as the district court concluded, occupying positions below that of Coordinators Lopez⁴  and Izquierdo.

In Holt v. Gamewell Corp., 797 F.2d 36, 38 (1st Cir. 1986), we confronted arguments similar to those of Lopez and Izquierdo. In that case, the appellant manager argued that, in lieu of dismissing him, his employer should have discharged one of the employees he supervised and given that job to appellant. Thus, we rejected that argument as unsupported by legal authority, as in the instant case, and as requiring that the court encroach too far into areas which should be left to "the company's legitimate management." Id. at 38.

The Second Circuit's opinion in Parcinski v. Outlet Co., 673 F.2d 34, 37 (2d Cir. 1982), provides a strong statement of the concerns to which Holt alludes. Considering an argument resembling that of the instant case and of the appellant in Holt, the court stated that:

Assuming there were lower echelon, poorer paying jobs in the restructured enterprise which [appellants] were qualified to fill, [the employer] would be met with serious morale problems arising out of the substantial reductions in responsibilities and salaries that would accompany such moves.

Id.; see Ridenour v. Lawson Co., 791 F.2d 52, 57 (6th Cir. 1986) (stating that "[w]here an employer reduces his workforce for economic reasons, it incurs no duty to transfer an employee to another position within the company"); Sahadi v. Reynolds Chem., 636 F.2d 1116, 1117 (6th Cir. 1980).

In accord with the reasoning behind these cases, we conclude that we must reject Lopez' and Izquierdo's arguments comparing their dismissals to Iberia's treatment of Beltran and Rodriguez, and Lopez' argument with respect to Rivera. Even assuming, without holding, that Lopez and Izquierdo stated prima facie cases, we reject their arguments that anti-age animus can be reasonably inferred from the fact that they were not offered alternative employment opportunities, as Beltran and Rodriguez were. Accordingly, we also reject Lopez' argument that discriminatory animus can be reasonably inferred from the hiring of Rivera for a position inferior to Lopez' previous job as "Coordinator B." Because we conclude that the evidence adduced by Lopez and Izquierdo, taken as true, cannot suffice to support a reasonable inference of anti-age animus, we uphold the district court's grant of summary judgment on their ADEA claims.

The district court found that Pages demonstrated a prima facie case, but failed to present sufficient evidence from which a reasonable factfinder could infer anti-age animus. Because it does not change our analysis, we assume without concluding that the district court properly found that Pages (age 51) carried her burden of presenting a prima facie case. As a result, we review her case to determine whether the evidence as a whole was sufficient to support a reasonable inference of age animus in the decision to dismiss her. LeBlanc, 6 F.3d at 836.

Pages argued that Iberia's anti-age animus could be inferred by comparing her dismissal with the retention of: (1) Maria Garcia ("Garcia") (age 61), an Executive Secretary; (2) Sandra Medina ("Medina") (48), an Executive Secretary; (3) Rivera (33), a Sales Assistant; and (4) Nitza Alos ("Alos") (30), an employee of an independent contractor who performed functions similar to Pages'. Even assuming that three comparisons with non-discharged employees could permit an inference of anti-age animus in a reduction in force case as a matter of law, these three particular comparisons cannot. First, Garcia is in fact older than Pages, a fact that Pages does not dispute. Second, a reasonable inference of anti-age animus cannot be drawn from the comparison of the retention of Medina, an executive secretary at Iberia's administrative offices in Miramar, Puerto Rico, and the discharge of Pages, "Secretary to the Airport Manager," at the airport in Isla Verde, Puerto Rico. Pages does not dispute that the position of Airport Manager had been eliminated. Thus, to retain her rather than Medina, Iberia would have had to transfer Pages to another position or location. And, as noted in the discussion of Lopez and Izquierdo, Appellants cite no authority for the proposition that an employer conducting a reduction in force must offer such transfers or relocations--in fact, authority exists for the proposition that employers face no such obligation. See Holt, 797 F.2d at 38; Ridenour, 791 F.2d at 57; Parcinski, 673 F.2d at 37. We must reject any inference of age animus drawn from a comparison of Pages with Rivera for the same reason we rejected comparisons between Lopez and Rivera: employers conducting a reduction in force face no obligation to offer "lower echelon, poorer paying jobs in the restructured enterprise" to all older employees. Parcinski, 673 F.2d at 37; see Holt, 797 F.2d at 38.

Finally, the comparison with Alos cannot justify a reasonable inference of anti-age animus because Alos was not employed by Iberia, but by another company, G.M.D., with a contract to perform services for Iberia. This circuit has previously stated that

[a] discharged employee 'is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work.' Rather, 'a person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties.'

LeBlanc, 6 F.3d at 846 (citations omitted) (quoting Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878, 111 S. Ct. 211, 112 L. Ed. 2d 171 (1990)). Thus, to reasonably infer that Pages was replaced by a younger employee, we would have to conclude that Pages' duties, and no others, were allocated to Alos, and that Alos should be considered an Iberia employee. However, in Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 566 (11th Cir. 1992), the court rejected as insufficient to establish a prima facie case, without more, an employee's claim that his employer assigned his work to an independent contractor corporation that decided to employ younger employees to do the work. What is more, the instant case has a grave flaw that was not present in Mitchell: Iberia's contract with G.M.D. predates the reduction in force that gave rise to Pages' claim. Since Pages has failed to present evidence suggesting that Iberia could, at its discretion, retain her and have G.M.D. eliminate Alos, any inference of age animus drawn from Iberia's "retention" of Alos would be simply unreasonable.

As a result, we conclude that the comparisons Pages points to cannot support a reasonable inference of age animus on the part of Iberia.

Pages also argues that the District Court erred in granting summary judgment for Iberia on her claim under Puerto Rico Law No. 80. Law No. 80 provides, in relevant part, that

[e]very employee in commerce, industry or any other business ... who is discharged from his [or her] employment without good cause, shall be entitled to receive from his employer, in addition to the salary he may have earned:

(a) The salary corresponding to one month, as indemnity;

(b) An additional progressive indemnity equivalent to one week for each year of service.

29 L.P.R.A. § 185a (emphasis added). In response, Iberia argues that it had "good cause" to discharge Pages, pointing to § 185b, which provides that "[j]ust cause ... shall be understood to be ... reorganization changes ... [or] [r]eductions in employment made necessary by a reduction in the anticipated or prevailing volume of production, sales or profits at the time of the discharge." 29 L.P.R.A. § 185b(e)-(f). Pages has not presented evidence to rebut Iberia's evidence that it eliminated its Sales Department after it had incurred substantial operating losses in San Juan.

However, Pages points to § 185c, which provides that, where employees are discharged due to reorganization or a reduction in production, sales or profits, "it shall be the duty of the employer to retain those employees of greater seniority on the job with preference, provided there are positions vacant or filled by employees of less seniority in the job within their occupational classification which may be held by them...." 29 L.P.R.A. § 185c. In the context of her Law No. 80 argument, Pages suggests that a comparison of her discharge with the retention of Executive Secretaries Garcia and Medina raises a genuine issue of material fact as to whether Iberia complied with Law No. 80. According to Pages, she was more senior than Garcia or Medina.

In fact, Pages has provided no evidence to rebut Garcia's testimony, in her sworn affidavit, that Garcia has in fact been with Iberia as long or longer than Pages. We thus turn to the comparison with Medina, since the record evidence does suggest that Medina was less senior than Pages. Pages argues that even though Medina's position was in Miramar, Puerto Rico, and Pages' was at the airport in Isla Verde, Iberia should have given Pages the option to transfer to Miramar to replace Medina. This argument neglects two different provisions in Law No. 80. First, Law No. 80 states that seniority need not be followed where "there is a clear and conclusive difference in favor of the efficiency or capacity of the workers compared...." 29 L.P.R.A. § 185c. The relevant evidence shows that Medina's position at the Miramar office and Pages' position at the airport in Isla Verde were not fungible. Medina had worked in Miramar since 1972, while Pages had worked in Isla Verde since 1970. Without more evidence, the district court could have found that no genuine issue of material fact was raised as to the relative efficiency of keeping Medina in her own position, rather than transferring Pages, as it was Pages' airport position that was being eliminated.

Furthermore, Pages ignores § 185c(a), which states in relevant part that

[i]n the case of discharges or layoffs ... in companies that have several offices ... and whose usual and regular practice is not to transfer employees from one office ... to another, and that said units operate in a relatively independent manner with regard to personnel aspects, the seniority of the employees within the occupational classification subject to the layoff shall be computed by taking into consideration only those employees in the office ... in which said layoff shall occur.

29 L.P.R.A. § 185c(a). Iberia has argued throughout that all but one position at the Airport has been eliminated since 1991, in accord with its reorganization plan, and that transfers were not possible due to the different nature of the tasks which the airport employees performed as compared to the Miramar office employees. The only evidence to which Pages points fails to generate an issue of fact, since neither she, nor Medina, nor Garcia, has apparently been transferred since 1970, when Pages began work at Iberia.

As a result, we affirm the district court's grant of summary judgment to Iberia on Pages' Law No. 80 claim.

Lopez also challenges the district court's grant of summary judgment on her claim under Puerto Rico Law No. 379 for overtime pay she contends Iberia owed her. Puerto Rico Law No. 379 states, in pertinent part, that "forty hours of work constitute a workweek," 29 L.P.R.A. § 271, "extra working hours are ... hours that an employee works for his employer in excess of forty during any week," § 273(b), and "[e]very employer who employs or permits an employee to work during extra hours, shall be bound to pay him for each extra hour a wage rate equal to double the rate agreed upon for regular hours," § 274.

The district court, however, concluded that the overtime provisions did not apply to Lopez, since § 288 states that Law No. 379 does not apply to exempt "employees" working as "executives, administrators, or professionals, as these terms may be defined by the Puerto Rico Minimum Wage Board." 29 L.P.R.A. § 288; see, e.g., Lehman v. Ehret Inc., 103 D.P.R. 264, 267 (P.R.1975) (discussing the definition of "administrator"). Lopez challenges the district court's application of the Minimum Wage Board's Regulations.

Under the authority granted it by § 288, the Minimum Wage Board promulgated regulations by substantially adopting definitions found in the federal regulation on the same matter. See Santiago v. Corco, 114 D.P.R. 267, 269 (P.R.1983). On appeal, both parties argue for, and we agree with, the application of the short test, since it is undisputed that Pages' weekly salary was "not less than § 295," as the regulation requires for the short test's application. Regulation No. 13, Article III(f), Fourth Revision, Commonwealth of Puerto Rico Minimum Wage Board (1990). As a result, she is excluded from the coverage of Law No. 379's provisions if:

(a) [she] perform[ed] office or nonmanual field work directly related to management policies or to general business operations of the employer or of the customers of the employer; and

(b) [she] customarily and regularly exercise[d] discretion and independent judgment.

Id., Article III.

Lopez argues that a genuine issue of material fact existed as to whether she performed office work directly related to management policies or general business operations, and whether she customarily and regularly exercised discretion and independent judgment. She argues specifically that she did not perform supervisory functions and that she was in fact an "Executive Secretary" despite her title of "Coordinator B." However, Article III(a) and (b) contain no requirement that one perform supervisory functions. To be exempted from Law No. 379, one need only perform "office ... work directly related to management policies or to general business operations of [one's] employer." Article III(a). Thus, Lopez' first assertion, even if believed, cannot create a genuine issue that would preclude a grant of summary judgment for Iberia, since it fails to respond to any relevant requirement in Regulation No. 13.

As a result, we turn to Lopez' contention that she was an Executive Secretary rather than a Coordinator, and that Law No. 379 cannot apply to her as an Executive Secretary. In addressing this assertion in the ADEA context, see supra, we rejected this contention as unsupported by a sworn statement, explicitly and directly contradicted by her sworn deposition, and rebutted by evidence Iberia proffered. However, in the ADEA context the standard of review was whether Lopez showed evidence sufficient for the factfinder reasonably to conclude that she was discharged due to discriminatory intent. We noted in passing that because Iberia's alleged mistitling of her position occurred three years' before her discharge, that fact, together with her lack of evidence, rendered any age inference unreasonable. However, while it would be unreasonable for a finder of fact to think that an employer mistitled an employee's position to cloak its age discrimination years later, it would not be similarly unreasonable to believe that employers seeking to avoid paying overtime would mislabel a position to take advantage of Law No. 379's exemptions for managers, professionals and administrators.

As a result, we evaluate Lopez' argument that she was in fact an "executive secretary," assuming without concluding that she adequately proffered evidence to raise this issue. Neither party has cited Puerto Rico case law interpreting Law No. 379 with respect to supervisory duties or to the title of "Executive Secretary." To determine whether Lopez' assertion could create a triable issue of fact, we may consider the federal regulations which implement the Federal Fair Labor Standards Act. See Lopez Vega v. Vega Otero, Inc., 103 P.R.R. 243, 246-47 (P.R.1974) (deciding that where appellee was an executive under the provisions of the Federal Fair Labor Standards Act and its regulation, he could not maintain a claim against his employer for extra hours); Rodriguez v. Concreto Mixto, Inc., 98 P.R.R. 568, 575-76 (P.R.1970) (determining whether or not an employee or worker is a person employed in a bona fide executive capacity by following the rules set forth in 29 C.F.R. § 541.1 et seq.). These regulations, in describing those exempt as "administrative" employees, note that

[i]n modern industrial parlance there has been a steady and increasing use of persons who assist an executive in the performance of his duties without themselves having executive authority. Typical titles of persons in this group [include] ... executive secretary....

29 C.F.R. § 541.201 (emphasis added). As a result, even assuming that she was an Executive Secretary, that would not disqualify her from being an exempt employee, assuming that she did office work related to management policies and general business operations, and that she customarily and regularly exercised discretion and independent judgment. Iberia's submitted evidence and Lopez' co-appellant Izquierdo's testimony as to Lopez' duties both presented ample evidence that Lopez exercised discretion and independent judgment. In particular, Izquierdo stated that Lopez helped him supervise sales personnel; coordinated the work of the salesmen; attended social and civic activities "to represent the company"; and exercised her own discretion with respect to her work. Because Lopez failed to present evidence to rebut Izquierdo's testimony, and given Iberia's evidence that she exercised discretion and independent judgment, we conclude that no issue of fact existed regarding this point. As a result, we conclude that she falls under Regulation No. 13's exemption from Law No. 379, and thus the district court correctly granted summary judgment on her overtime pay claim to Iberia.

CONCLUSION

As a result of the foregoing, the judgment of the district court is affirmed.