Ortiz-Rivera v. Astra Zeneca LP, et al, No. 09-1453 (1st Cir. 2010)

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Not for Publication in West s Federal Reporter United States Court of Appeals For the First Circuit ___________________ No. 09-1453 DORIS ORTIZ-RIVERA, Plaintiff, Appellant, v. ASTRA ZENECA LP, Defendant, Appellee, INSURANCE COMPANIES A, B, C; JOHN DOES 1 THROUGH 3, Defendants. ___________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge] ___________________ Before Lipez, Baldock, * and Howard, Circuit Judges. ___________________ Jorge Miguel Carazo-Quetglas and Carazo-Quetglas Law Offices for appellant. Lourdes C. Hernandez-Venegas and Schuster AguilÃ³ LLP for appellee. January 25, 2010 * Of the Tenth Circuit, sitting by designation. BALDOCK, Circuit Judge. Plaintiff Doris Ortiz-Rivera appeals from the district court s grant of summary judgment for Defendant Astra Zeneca LP in her suit involving claims under the Age Discrimination in Employment Act (ADEA) and similar claims under Puerto Rico law. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We review the district court s grant of summary judgment de novo, drawing all reasonable inferences in favor of the nonmoving party. Sonoran Scanners, Inc. v. Perkinelmer, Inc., 585 F.3d 535, 539 40 (1st Cir. 2009). Plaintiff argues the district court erred summary judgment on her ADEA claims. in granting She then argues the district court erred in dismissing her claims under Puerto Rico law. The We address each argument in turn. parties are familiar with the therefore repeat them here only briefly. facts, and we Plaintiff was born on January 17, 1966. Defendant hired Plaintiff to be a pharmaceutical specialist sales on August 8, 2005. Supervisor Vanessa Gonzales (born August 15, 1970) and her supervisor, participated involved Elsa in visiting Defendant s Saavedra the hiring and November process. physicians products. inconsistencies (born and After possible - 2 - 3, 1957), Plaintiff s obtaining orders observing both job for several misrepresentations in Plaintiff s work and reports, Gonzales sought counsel from John Kriegsmann (born resources. He performance review several recommended problems honesty. September of that 27, that Plaintiff. caused her 1943) Gonzales in human conduct a Gonzales to discovered question Plaintiff s Saavedra likewise reviewed Plaintiff s performance and had similar concerns. On Kriegsmann s recommendation, Gonzales and Saavedra met with Plaintiff to discuss these problems. After determining that her responses were unsatisfactory, they decided to terminate her on March 17, 2006. On that date, Plaintiff was forty years and two months old; Gonzales was thirty five years, seven months, and two days old; Saavedra was forty eight years, four months, and fourteen days old; and Kriegsmann was sixty two years, five months, and twenty one days old. Plaintiffs making a case under the ADEA with indirect evidence may use the burden shifting analysis outlined in McDonnell (1973). 41, 48 Douglas Corp. v. Green, 411 U.S. 792, 802 05 Torrech-HernÃ¡ndez v. General Electric Co., 519 F.3d (1st Cir. 2008). In analyzing cases under this framework, we may put aside the question whether a plaintiff established a prima facie case of age discrimination under the ADEA and consider first whether there is evidence that, notwithstanding the employer s - 3 - stated reasons for the termination, the real reason, age . . . discrimination. at least in part, was Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003); see also RiveraAponte v. Restaurant Metropol #3, Inc., 338 F.3d 9, 11 (1st Cir. 2003) establish a (assuming prima arguendo facie case that and the plaintiff considering could whether he could prove his employer had a discriminatory motive for discharging him). Defendant presented terminating Plaintiff. degree did but not evidence First, include of several Plaintiff it on her grounds received resume for a law or job application, even though she included a master s degree in English linguistics. Second, she misrepresented information on expense reports and failed to follow protocol when she claimed expenses for ten people at meetings though fewer than ten attended. lunch and learn Third, Plaintiff s six-month performance review revealed multiple occasions on which she had reported several visits to doctors in a five to seven minute period, and her supervisors considered this to be insufficient time to make a proper call. Fourth, the review showed Plaintiff often failed to work the required seven and a half hours each day. company pasting policy one by using report mass into Fifth, Plaintiff violated assignments others - 4 - instead (cutting of and writing individualized reports for each call). Defendant argues any one of these instances is grounds for termination, and all of them raised Defendant serious thus doubts satisfied about its Plaintiff s burden of honesty. production by articulating a legitimate, nondiscriminatory basis for its adverse employment action. Torrech-HernÃ¡ndez, 519 F.3d at 48 (quoting Hoffman v. Applicators Sales & Serv., Inc., 439 F.3d 9, 17 (1st Cir. 2006)). To demonstrate allegedly ageist pretext, remarks. Plaintiff First, when relies she on four traveled to supervisor Vanessa Gonzales s house to pick up materials for work, she informed Gonzales that she was suffering from a medical condition. Gonzales told her to visit a doctor and said those things come with age. Second, during a break at a work meeting, a coworker was selling bikinis. When Plaintiff asked whether there was one for her, Gonzales said she was too old for one. Third, when Gonzales met with Plaintiff to discuss the improper expense reports, she told Plaintiff you are too old, Doris. this. You are too old for You are too old to be making these mistakes. is unacceptable. This Fourth, when Gonzales and her supervisor, Elsa Saavedra, met with Plaintiff to discuss concerns about her performance and dishonesty, they told her she was old - 5 - enough to know what it means to lie and to omit information. As the district court noted in its thorough and wellreasoned order, stray workplace remarks . . . normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus. Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir. 2002). The first two remarks, concerning a medical problem and bikinis, were rude but not related to Plaintiff s employment. the decision to terminate In Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36 (1st Cir. 2001), we said: [T]hough such stray remarks may be material to the pretext inquiry, their probativeness is circumscribed if they were not related to the employment decision in question . . . . (quoting McMillan v. Massachussetts Soc y for Prev. of Cruelty to Animals, 140 F.3d 288, 301 (1st Cir. 1998)). On the facts of this case, Gonzales s stray remarks concerning a medical problem and probative of pretext. bikinis Id. are not significantly Although statements directly related to the challenged employment action may be highly probative in the pretext inquiry, mere 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 - 6 - and contextual relevance. Id. Taken in the light most favorable to Plaintiff, the second two statements are, at best, ambiguous. time of Though made by supervisors close to the Plaintiff s termination, they arguably reflect a belief that positive attributes such as honesty and accuracy come with age. Both could be expressions of confusion about Plaintiff s actions, admonishments to act responsibly, or remarks indicating ambiguous, they animus. are Because insufficient discriminatory intent. these to statements prove are Defendant s See Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323, 329 (1st Cir. 1996) ( Isolated, ambiguous remarks are insufficient, discriminatory intent. ). by themselves, Additionally, to the prove context provides no additional evidence of discriminatory intent: Two of the same supervisors participated in hiring and firing Plaintiff; those supervisors provided several valid concerns about Plaintiff s honesty; and two of the three people who participated in the decision to fire Plaintiff are more than five years her senior. Therefore, we agree with the district court that Plaintiff failed to provide sufficient evidence that Defendant s stated reasons for terminating her were pretextual. Plaintiff also argues the district court should not have dismissed her claims under Puerto - 7 - Rico law. While a district court may exercise supplemental jurisdiction over nonfederal law claims, the court may also decline to exercise supplemental jurisdiction over a claim . . . if the district court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367. See Marrero- Gutierrez v. Molina, 491 F.3d 1, 7 (1st Cir. 2007). the district under federal court law, properly it did dismissed not err in Plaintiff s claims dismissing without prejudice her claims under Puerto Rico law as well. AFFIRMED. - 8 - Because

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