Cruz-Claudio et al v. Garcia Trucking Service Inc et al, No. 3:2006cv01863 - Document 38 (D.P.R. 2009)

Court Description: OPINION AND ORDER granting re 24 MOTION for Summary Judgment filed by Garcia Trucking Service Inc Signed by Chief Mag. Judge Justo Arenas on 7/28/2009.(nydi)

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 5 EDDIE CRUZ-CLAUDIO, et al., 6 Plaintiffs 7 v. 8 9 10 CIVIL 06-1863 (ADC) (JA) GARCÃ A TRUCKING SERVICE, INC., et al., Defendants 11 12 13 14 OPINION AND ORDER This matter comes before the court on motion for summary judgment filed by defendant GarcÃa Trucking Services, Inc. (hereinafter, G.T.S. ) on January 29, 15 16 17 18 2009. (Docket No. 24.) Plaintiffs timely filed an opposition to the defendant s motion on February 17, 2009. (Docket 29.) Plaintiffs complaint alleges illegal age-based employment discrimination in 19 20 the form of constructive discharge and harassment, as well as retaliation, invoking 21 the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, 623, 626(b), and 22 the Equal Employment Opportunity Act, 42 U.S.C. §§ 2000e-3(a) and 5(k), 23 erroneously referring to these acts collectively as Title VII (which can only be 24 25 a reference to Title VII of the Civil Rights Act of 1964). (Docket No. 5, at 2.) 26 This court s supplemental jurisdiction is based on claims under Puerto Rico 27 law, namely Law No. 100 of June 30, 1959, P.R. Laws Ann. tit. 29, § 1323-1333, 28 29 Law No. 115 of December 20, 1991, P.R. Laws Ann. tit. 20, § 194(a), and Articles 1 CIVIL 06-1863 (ADC) (JA) 2 2 3 4 1802, 1803 of the Civil Code of the Commonwealth of Puerto Rico, P.R. Laws Ann. 5 6 tit. 31, §§ 5141, 5142, and Law No. 80 of May 30, 1976, as amended, P.R. Laws 7 Ann. tit. 29, § 185 et. seq. 8 (Docket No. 16.) 9 Plaintiffs Law No. 115 claims were dismissed. Having considered the arguments of the parties, the evidence presented, 10 11 and for the reasons set forth below, defendant s motion for summary judgment 12 is GRANTED in relation to plaintiff Cruz-Claudio s Age Discrimination in 13 Employment Act ( ADEA ) claims of discrimination and retaliation, and the 14 15 supplementary claims accordingly are DISMISSED without prejudice. 16 In a few places in the record, (first amended complaint, Docket No. 5; Order 17 on Motion to Dismiss, Docket No. 16), plaintiff s discrimination claims are 18 incorrectly referred to as Title VII claims and should be called ADEA claims. 19 20 They will be referred to as ADEA claims here. A brief review of the legislative 21 history and framework may be helpful, and will cover two areas: 22 (1) age discrimination and (2) retaliation. 23 24 1. Age Discrimination: Title VII of the Civil Rights Act of 1964, codified 25 at 42 U.S.C. § 2000e, prohibits discrimination based on race, color, religion, sex, 26 or national origin. . . . 42 U.S.C. § 2000e-2(a)(1). Age is not one of the 27 protected classes of this statute. The Equal Employment Opportunity Act of 1972, 28 29 which is codified concurrently with the Title VII provisions was enacted to amend 1 CIVIL 06-1863 (ADC) (JA) 3 2 3 4 the Civil Rights Act to include additional definitions as well as enforcement and 5 6 other provisions. It does not, however, amend Title VII to prohibit age 7 discrimination. Prohibitions against age discrimination are found in a separate 8 act, the Age Discrimination in Employment Act of 1964 (amended in 1978, 1986, 9 and 1996) and codified separately as well, (under Labor rather than General 10 11 Welfare) at 29 U.S.C. § 623(a)(1) ( Prohibition of age discrimination ): It shall be unlawful for an employer 12 13 (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age[.] 14 15 16 17 18 29 U.S.C. § 623(a)(1). A later portion of the statute, 29 U.S.C. § 626(a) empowers the Equal 19 20 Employment Opportunity Commission ( EEOC ), originally formed to administer 21 Title VII and the Equal Employment Opportunity Act ( EEOA ), to investigate age 22 discrimination claims as well. 23 24 2. Retaliation: Title 42 U.S.C. § 2000e-3(a) (cited by plaintiffs in their 25 amended complaint, Docket No. 5, at 2) prohibits retaliation against those who 26 have opposed or participated in prosecution of violations of Title VII provisions. 27 Title VII does not prohibit age-based discrimination, and thus this particular anti- 28 29 retaliation provision is not relevant here. Prohibition of retaliation against those 1 CIVIL 06-1863 (ADC) (JA) 4 2 3 4 who have taken action against discriminatory practices with regard to age is 5 6 7 8 9 10 11 12 13 provided in 29 U.S.C. § 623(d): It shall be unlawful for an employer to discriminate against any . . . employees . . . because such individual . . . has opposed any practice made unlawful by this section, or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. 29 U.S.C. § 623(d). Plaintiffs eventually clarified these issues by making reference to the correct 14 15 discrimination and retaliation statutes and abandoning reference to the irrelevant 16 ones in their objection to defendants motion to dismiss. (Docket No. 7; Docket 17 No. 6.) However, the court s order on these motions (Docket No. 16), referred 18 to the discrimination claims as Title VII claims (without dismissing those claims). 19 20 This is mentioned here in order that it be clear that claims referred to in that 21 order and all other motions or pleadings as Title VII claims are discussed here 22 as ADEA claims. 23 24 The complaint named Eddie Cruz-Claudio (hereinafter Cruz ), Gloria 25 Mercado-Maldonado (Cruz wife), and their conjugal partnership as plaintiffs as to 26 all claims, while both JosÃ© GarcÃa-Ortega (hereinafter GarcÃa ) and Garcia 27 Trucking Services, Inc. (hereinafter G.T.S ), were defendants to all claims. 28 29 Pursuant to defendants motion, plaintiffs Gloria Mercado-Maldonado and the 1 CIVIL 06-1863 (ADC) (JA) 5 2 3 4 conjugal partnership were dismissed as to the ADEA claims for lack of standing, 5 6 while GarcÃa in his personal capacity was dismissed as a defendant as to the ADEA 7 and Law No. 80 claims because those statutes impose liability only on employers 8 and not on individual supervisors. (Docket No. 16.) 9 What remains in this action are plaintiffs Puerto Rico Law No. 80 claims 10 11 against corporate defendant G.T.S., plaintiffs Law No. 100 and Article 1802 12 claims against all the defendants and plaintiff Cruz ADEA claims (for employment 13 discrimination and for retaliation) against G.T.S. Since jurisdiction over the Law 14 15 No. 80, Law No. 100, and Article 1802 claims is supplemental and dependent on 16 jurisdiction over the ADEA claims, it is only the ADEA claims which will be 17 discussed in detail here. Summary judgment as to defendant G.T.S. and plaintiff 18 Cruz on these claims precludes hearing the other claims as to the other parties, 19 20 21 22 and such claims will be effectively dismissed without prejudice. I. BACKGROUND Plaintiff Eddie Cruz became general manager at GarcÃa Trucking Services 23 24 ( G.T.S ) on May 17, 2004 after being recruited by defendants. Cruz has testified 25 that he has more than 24 years of experience in the trucking business. When 26 he first became employed with G.T.S., Cruz was approximately 47 years old. Cruz 27 duties consisted of interviewing employees, preparing appraisals, corresponding 28 29 with stateside companies to obtain business, making sales and collection efforts, 1 CIVIL 06-1863 (ADC) (JA) 6 2 3 4 and establishing tariffs. (Docket-25-2, at 2, ¶ 7; Docket No. 29-2, at 2, ¶ 7.) 5 6 Cruz was supervised by JosÃ© GarcÃa Ortega ( Garcia ), the president of the 7 company, and worked with and/or was supervised by (this fact is in hot dispute) 8 GarcÃa s son JosÃ© A. GarcÃa MuÃ±iz ( Tito ). GarcÃa s other son, JosÃ© A. GarcÃa 9 MuÃ±iz ( Joey ), also worked at G.T.S. 10 11 Throughout his time at G.T.S., Cruz was subjected to foul language and 12 generally rough treatment by GarcÃa. Defendants contend, and Cruz admitted in 13 his deposition, that GarcÃa used the same foul language and bad temper towards 14 15 everyone who worked at the company, including his sons. Cruz contends however 16 that in his case the bad treatment escalated over time with a marked increase in 17 July 2005, and that the maltreatment became physical on at least one occasion. 18 He also asserts that at times he was unjustly not permitted to work when he 19 20 arrived late at the office. Additionally, Cruz alleges that during the course of his 21 employment, his title was reduced from general manager to assistant or sales 22 manager, though his hours and pay did not change until February 2006. 23 24 On February 20, 2006, Cruz received a letter, signed by GarcÃa, reducing his 25 hours and pay by 50% and citing the country s current condition and the need 26 to maintain an economically viable operation as the reasons for this decision. 27 In his motion in opposition to defendants motion for summary judgment, Cruz 28 29 puts forth a specific allegation that on May 19, 2006, GarcÃa forcibly escorted him 1 CIVIL 06-1863 (ADC) (JA) 7 2 3 4 from company premises and demanded that he return the company car within a 5 6 week. (Docket No. 29-2, at 8, ¶ 8.) 7 Ultimately, Cruz submitted a resignation letter on June 16, 2006, naming 8 among his reasons the fact that GarcÃa was attempting to replace him with a 9 younger person, and a pattern of economic, verbal, and physical harassment. 10 11 (Docket No. 25-5, Ex. VIII, at 18, ¶ 1.) On June 23, 2006, Cruz filed a 12 discrimination charge with the EEOC. (Docket No. 25-5, Ex. IX, at 20.) Cruz 13 admitted at deposition that GarcÃa did not accept his resignation and asked him 14 15 to return to work via a letter dated June 26, 2006. (Docket No. 29-2, at 6, ¶ 21.) 16 Cruz declined this invitation and later filed the present action on September 1, 17 2006. (Docket No. 1) alleging constructive discharge based on age discrimination. 18 He claims that G.T.S. s proffered reasons for certain employment actions, 19 20 specifically the reduction of his hours and pay, are pretext for discrimination. As 21 to the maltreatment alleged in Cruz complaint, defendant contends, and Cruz 22 admits in deposition, that all employees were treated equally in this regard. 23 24 II. STANDARD SUMMARY JUDGMENT STANDARD 25 Summary judgment is appropriate when the pleadings, the discovery and 26 disclosure materials on file, and any affidavits show that there is no genuine issue 27 as to any material fact and that the movant is entitled to judgment as a matter 28 29 of law. Fed. R. Civ. P. 56(c). To succeed on a motion for summary judgment, 1 CIVIL 06-1863 (ADC) (JA) 8 2 3 4 the moving party must show that there is an absence of evidence to support the 5 6 nonmoving party s position. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 7 Once the moving party has properly supported [its] motion for summary 8 judgment, the burden shifts to the nonmoving party, with respect to each issue 9 on which [it] has the burden of proof, to demonstrate that a trier of fact 10 11 reasonably could find in [its] favor. Santiago-Ramos v. Centennial P.R. Wireless 12 Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting DeNovellis v. Shalala, 124 F.3d 13 298, 306 (1st Cir. 1997)). The party opposing summary judgment must produce 14 15 specific facts, in suitable evidentiary form, to counter the evidence presented 16 by the movant. LÃ³pez-Carrasquillo v. Rubianes, 230 F.3d 409, 413 (1st Cir. 17 2000) (quoting Morris v. Gov t Dev. Bank of P.R., 27 F.3d 746, 748 (1st Cir. 18 1994)). A party cannot discharge said burden by relying upon conclusory 19 20 allegations, improbable inferences, and unsupportable speculation. Id.; see also 21 Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir. 2002) (quoting J. Geils 22 Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 23 24 25 26 27 (1st Cir. 1993)) ( [N]either conclusory allegations [nor] improbable inferences are sufficient to defeat summary judgment. ). The court must view the facts in a light most hospitable to the nonmoving party, drawing all reasonable inferences in that party s favor. Patterson v. 28 29 Patterson, 306 F.3d 1156, 1157 (1st Cir. 2002) (quoting Griggs-Ryan v. Smith, 1 CIVIL 06-1863 (ADC) (JA) 9 2 3 4 904 F.2d 112, 115 (1st Cir. 1990)). A fact is considered material if it has the 5 6 7 8 9 potential to affect the outcome of the case under applicable law. Nereida- GonzÃ¡lez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). LOCAL RULE 56 In the District Court of Puerto Rico, Local Rule 56(b), previously Local Rule 10 11 311(12), requires a motion for summary judgment to be accompanied by a 12 separate, short and concise statement of material facts that supports the moving 13 party s claim that there are no genuine issues of material fact in dispute. These 14 15 facts are then deemed admitted until the nonmoving party provides a similarly 16 separate, short and concise statement of material fact establishing that there is 17 a genuine issue in dispute. Local Rules of the United States District Court for the 18 District of Puerto Rico, Local Rule 56(e) (2004); Morales v. A.C. Orssleff s EFTF, 19 20 246 F.3d 32, 33 (1st Cir. 2001); Ruiz Rivera v. Riley, 209 F.3d 24, 27-28 (1st Cir. 21 2000); DomÃnguez v. Eli Lilly & Co., 958 F. Supp. 721, 727 (D.P.R. 1997); see 22 also Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 43 (1st Cir. 2001). 23 24 These facts must be supported by specific reference to the record, thereby 25 pointing the court to any genuine issues of material fact and eliminating the 26 problem of the court having to ferret through the Record. DomÃnguez v. Eli Lilly 27 & Co., 958 F. Supp. at 727; see Stepanischen v. Merchs. Despatch Transp. Corp., 28 29 722 F.2d 922, 931 (1st Cir. 1983); Carmona RÃos v. Aramark Corp., 139 F. Supp. 1 CIVIL 06-1863 (ADC) (JA) 10 2 3 4 2d 210, 214-15 (D.P.R. 2001); VelÃ¡zquez Casillas v. Forest Lab., Inc., 90 F. Supp. 5 6 2d 161, 163 (D.P.R. 2000). Failure to comply with this rule may result, where 7 appropriate, in judgment in favor of the opposing party. Morales v. A.C. Orssleff s 8 EFTF, 246 F.3d at 33; Stepanischen v. Merchs. Despatch Transp. Corp., 722 F.2d 9 at 932. 10 III. DISCUSSION 11 12 13 A. Plaintiff s ADEA Discrimination Claim 1. Discrimination: McDonnell-Douglas Framework 14 15 The McDonnell Douglas framework was established by the Supreme Court 16 to evaluate a suit claiming violation of Title VII based on racial discrimination, but 17 has been expanded to evaluate age discrimination claims as well. See McDonnell 18 Douglas Corp. v. Green, 411 U.S. 792 (1973); see, e.g, SÃ¡nchez v. P.R. Oil Co., 19 20 37 F.3d 712, 718-20 (1st Cir. 1994). McDonnell-Douglas in its essence 21 established an allocation of the burden of production and an order for the 22 presentation of proof in . . . discriminatory-treatment cases. St. Mary s Honor 23 24 Ctr. v. Hicks, 509 U.S. 502, 506 (1993). 25 The McDonnell Douglas framework begins with placing on the plaintiff the 26 burden of proving a prima facie case of age discrimination. At that point, 27 28 29 [e]stablishment of the prima facie case in effect creates a presumption that the 1 CIVIL 06-1863 (ADC) (JA) 11 2 3 4 employer unlawfully discriminated against the employee. 1 Tex. Dep t of Cmty. 5 6 7 Affairs v. Burdine, 450 U.S. 248, 254 (1981). To establish the prima facie case, the plaintiff must show: 8 (i) that he was at least forty years old when shown the door; (ii) that his job performance met or exceeded the employer s legitimate expectations; (iii) that his employer actually or constructively discharged him (iv) that his employer had a continuing need for the services he formerly furnished. 9 10 11 12 13 DÃ¡vila v. CorporaciÃ³n de P.R. para la DifusiÃ³n PÃºblica, 498 F.3d 9, 15 (1st Cir. 14 2007) (citing VelÃ¡zquez-FernÃ¡ndez v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 15 2007); SuÃ¡rez v. Pueblo Int l, Inc., 229 F.3d 49, 53 (1st Cir. 2000)). 16 The required prima facie showing is not especially burdensome. . . . 17 18 Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir. 1995) (citing 19 Greenberg v. Union Camp Corp., 48 F.3d 22, 27 (1st Cir. 1995); Smith v. Stratus 20 Computer, Inc., 40 F.3d 11, 15 n.4 (1st Cir. 1994)). Establishing the prima facie 21 22 case is not a heavy burden . . . . Sabinson v. Tr. of Dartmouth Coll., 542 F.3d 23 1, 4 (1st Cir. 2008) (citing Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 24 2003)). Nevertheless, the Supreme Court has characterized the burden by stating 25 26 27 28 29 1 To establish a presumption is to say that a finding of the predicate fact (here, the prima facie case) produces a required conclusion in the absence of explanation (here, the finding of unlawful discrimination). St. Mary s Honor Ctr. v. Hicks, 509 U.S. at 506 (quoting 1 D. Louisell & C. Mueller, Federal Evidence § 67, at 536 (1977)). 1 CIVIL 06-1863 (ADC) (JA) 12 2 3 4 that plaintiff must establish the prima facie case by a preponderance of the 5 6 evidence. St. Mary s Honor Ctr. v. Hicks, 509 U.S. at 502 (citing Tex. Dep t of 7 Cmty. Affairs v. Burdine, 450 U.S. at 252-53); Mariani-ColÃ³n v. Dep t of Homeland 8 Sec., 511 F.3d 216, 221 (1st Cir. 2007) (Title VII claim); GonzÃ¡lez v. El DÃa, 9 Inc., 304 F.3d 63, 75 (1st Cir. 2002) (ADEA claim); Ã lvarez-Fonseca v. PepsiCola 10 11 of P.R. Bottling Co., 152 F.3d 17, 24 (1st Cir. 1998) (ADEA claim). 12 In the instant case, the first two elements of the prima facie case have been 13 met. It is undisputed that plaintiff Cruz is over 40 years of age and that his job 14 15 16 17 18 performance was at least satisfactory, but the third and fourth elements remain in dispute. As to the third element, defendant maintains that plaintiff was not constructively discharged, and offers as support for this contention the fact that 19 20 Cruz was invited to return to work even after submitting his resignation. Cruz 21 admits that he was so invited. (Docket No. 29-2, at 6, ¶ 21.) Meanwhile, plaintiff 22 has produced what may be generously considered a preponderance of evidence 23 24 to support this element of his prima facie case; even a cursory review finds 25 minimally sufficient factual support for this element. Specifically, based on Cruz 26 testimony (admitted by the defendant) as to GarcÃa s bad temper and foul 27 language, the working conditions at G.T.S. could be found by a reasonable fact- 28 29 finder to constitute working conditions so intolerable that a reasonable person in 1 CIVIL 06-1863 (ADC) (JA) 13 2 3 4 the employee s position would have felt compelled to resign, which is the standard 5 6 for constructive discharge. See Pa. State Police v. Suders, 542 U.S. 129, 141 7 (2004). Constructive discharge by itself may well rise to the level of a genuine 8 issue. It ultimately does not preclude summary judgment because its resolution 9 alone would not allow a reasonable fact-finder to find for the plaintiff on the 10 11 discrimination claim. A person may be constructively discharged without being 12 discriminated against. Discrimination is a form of unfairness; but not all 13 unfairness is discrimination. Sabinson v. Tr. of Dartmouth Coll., 542 F.3d at 4. 14 15 The court noted the problem is that Sabinson s evidence did not tend to establish 16 a discriminatory purpose, but rather tended to establish that a preexisting animus 17 against her . . . was the reason for the adverse action. Id. 18 As to the fourth element of plaintiff s prima facie case, it is not clear 19 20 whether the redistribution of Cruz responsibilities to existing employees (said 21 redistribution is generally undisputed but the parties do not concur as to who is 22 now performing Cruz duties) establishes that there was a continuing need for the 23 24 25 26 27 28 29 services plaintiff was providing under the meaning of the standard. Courts have held, if the job loss was part of a reduction in force, the plaintiff need not show replacement by someone with equivalent job qualifications. Instead, to satisfy element (4), the plaintiff may demonstrate either that the 1 CIVIL 06-1863 (ADC) (JA) 14 2 3 4 5 employer did not treat age neutrally or that younger persons were retained in the same position. 6 LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993) (quoting Hebert 7 v. Mohawk Rubber Co., 872 F.2d 1104, 1111 (1st Cir. 1989), quoted in Goldman 8 9 v. First Nat'l Bank of Boston, 985 F.2d 1113, 1117 (1st Cir. 1993); Lawrence v. 10 Northrop Corp., 980 F.2d 66, 69 (1st Cir. 1992); Connell v. Bank of Boston, 924 11 F.2d 1169, 1173 n.5 (1st Cir. 1991)). 12 13 Taking as true Cruz pleaded assertion that his responsibilities were 14 distributed to GarcÃa s son, who could be described as a younger person[s] 15 retained in the same position and since defendants have admitted at least that 16 the tasks have been redistributed (though contending that the tasks are being 17 18 performed by several others, some of whom are older than Cruz (see Docket No. 19 25-2, at 4, ¶ 24), I will consider that there is sufficient evidence to find this 20 element of Cruz prima facie case established. In other words, the fact that the 21 22 tasks continue to be performed, whether by replacement employees or through 23 reassignment to existing employees, could reasonably be considered as 24 demonstrative of a continuing need for the services plaintiff had been performing, 25 and thus establishes the fourth element of his prima facie case. 26 27 For the foregoing reasons, and because the summary judgment standard 28 asks us to consider the facts in the light most favorable to the non-moving party, 29 1 CIVIL 06-1863 (ADC) (JA) 15 2 3 4 I grant that plaintiff has met this initial prima facie burden and move to the next 5 6 step of the McDonnell Douglas framework, which places a burden of production 7 on the defendant to proffer a non-discriminatory reason for its actions. DÃ¡vila v. 8 CorporaciÃ³n de P.R. para la DifusiÃ³n PÃºblica, 498 F.3d at 16. 9 2. Discrimination: Pretext 10 11 Confronted with a motion for summary judgment in an ADEA case, a 12 plaintiff must be able to show that he could meet this burden of demonstrating 13 pretext (in other words, that there are genuine issues of material fact which could, 14 15 when inferred in his favor, demonstrate age-based discrimination was the real 16 reason for employer s action) at trial. Torrech-HernÃ¡ndez v. Gen. Elec. Co., 519 17 F.3d 41, 48 (1st Cir. 2008). Simply providing some evidence of pretext, or as 18 plaintiff does here, contradicting defendant s reasoning with unsubstantiated and 19 20 vague allegations, will not suffice: [t]he plaintiff must do more than cast doubt 21 on the wisdom of the employer's justification; to defeat summary judgment, the 22 plaintiff must introduce evidence that the real reason for the employer's action 23 24 was discrimination. Villanueva v. Wellesley Coll., 930 F.2d 124, 127-28 (1st Cir. 25 1991) (citing Medina-MuÃ±oz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 26 1990); Menard v. First Sec. Serv. Corp., 848 F.2d 281, 287 (1st Cir. 1988)). 27 Defendant has asserted its reason for reducing plaintiff s hours as due to 28 29 the country s condition and with the objective of trying to maintain an 1 CIVIL 06-1863 (ADC) (JA) 16 2 3 4 economically viable operation. (Docket No. 25-2, at 3; see also Docket No. 25- 5 6 5, Ex. VII, at 14.) Plaintiff in turn asserts that this proffer is pretextual and bases 7 this claim on an assertion that no other employees hours or wages were reduced. 8 Since plaintiff has made a prima facie case, I temporarily put aside 9 defendant s contention that the reduction of Cruz hours does not constitute a 10 11 discharge, as well as the question of whether redistribution of plaintiff s duties 12 demonstrates a continuing need for his services. I now evaluate the proffered 13 reason for the discharge . 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 First, defendant s burden here is one of production, not persuasion,2 see DÃ¡vila v. CorporaciÃ³n de P.R. para la DifusiÃ³n PÃºblica, 498 2 The standard of proof under Puerto Rico Law No. 100 imposes an elevated burden of proof on defendant in an employment discrimination case, requiring, the employer [to] prove, by a preponderance of the evidence, that the challenged action was not motivated by discriminatory age animus. Ã lvarezFonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d at 27-28. [W]hen a plaintiff has proved by direct evidence, not inference, that unlawful discrimination was a motivating factor in an employment decision, there is a greater burden on the employer. The latter must then prove by a preponderance of the evidence that the same decision would have been made absent the discrimination. Otherwise, the employer must merely articulate a plausible, nondiscriminatory reason for rejecting the plaintiff. Ramos v. RochÃ© Prod., Inc., 936 F.2d 43, 47 (1st Cir. 1991) (quoting Fields v. Clark Univ., 817 F.2d 931, 937 (1st Cir. 1987)). Since the instant plaintiff does not offer any direct evidence of discrimination, I do not elevate defendants burden in this case beyond the minimum articulation requirement of McDonnell-Douglas and its progeny. 1 CIVIL 06-1863 (ADC) (JA) 17 2 3 4 F.3d at 16; see also St. Mary s Honor Ctr. v. Hicks, 509 U.S. at 502; and it need 5 6 only articulate a legitimate nondiscriminatory reason for the employee's 7 termination. LeBlanc v. Great Am. Ins. Co., 6 F.3d at 842 (quoting Lawrence v. 8 Northrop Corp., 980 F.2d at 68). 9 Once a non-discriminatory reason is produced, the presumption of 10 11 discrimination established with the prima facie case is rebutted. It is thus that 12 [t]he McDonnell Douglas division of intermediate evidentiary burdens serves to 13 bring the litigants and the court expeditiously and fairly to this ultimate 14 15 question[ ] [of intentional discrimination, vel non]. Tex. Dep t of Cmty. Affairs 16 v. Burdine, 450 U.S. at 253. Furthermore, a reason cannot be proved to be a 17 pretext for discrimination unless it is shown both that the reason was false, and 18 that discrimination was the real reason. St. Mary s Honor Ctr. v. Hicks, 509 U.S. 19 20 at 515-16 (citing Tex. Dep t of Cmty. Affairs v. Burdine, 450 U.S. at 258). 21 Finally, I look to plaintiff to provide evidence that the proffered reason is 22 a pretext for discrimination. In finding pretext there is no mechanical formula 23 24 plaintiffs must follow. Billings v.Town of Grafton, 515 F.3d 39, 55 (1st Cir. 2008) 25 (quoting Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003) (quoting 26 Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 6 (1st 27 Cir. 2000)). At the same time, it is essential that [plaintiff] proffer sufficient 28 29 competent evidence[.] Woodman v. Haemonetics Corp., 51 F.3d at 1092. 1 CIVIL 06-1863 (ADC) (JA) 18 2 3 4 Furthermore, [t]o raise an inference of intentional discrimination based on a 5 6 defendant's proffered reason for a challenged action, a plaintiff must provide a 7 substantial showing that respondent's explanation was false. MorÃ³n-Barradas 8 v. Dep t of Educ. of Commonwealth of P.R., 488 F.3d 472, 481 n.10 (1st Cir. 9 2000) (quoting Williams v. Raytheon Co., 220 F.3d 16, 19 (1st Cir. 2000) (quoting 10 11 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 144 (2000)). 12 In trying to establish that defendants proffered explanations for the hour 13 and wage reductions are pretext for discrimination, plaintiff Cruz has asserted that 14 15 in fact the company was doing well financially and there was no need to cut costs. 16 (Docket No. 29-2, at 3, ¶ 12.) Cruz also asserts that no other employee s hours 17 or wages were reduced. (Docket No. 29-2, at 3, ¶ 11.) But as defendant has 18 pointed out, Cruz also admits that he did not participate in the economic 19 20 21 22 management of the company. (Docket 25-4, Ex. I, at 8:12-24). Q: Okay. But I should understand, then, that since 2004 you were not a part of the analysis of the company s financial situation, that s your representation. 23 24 25 26 27 28 29 A: They, Mr. GarcÃa, senior, only used me to collect and to intervene with the big companies in the United States to look for business and collect, but he didn t, he didn t tell me: We re doing good, but it s not that we re doing bad and he didn t show me the numbers. Q: I see. You didn t participate in the decisions of the company taking into consideration the company s 1 CIVIL 06-1863 (ADC) (JA) 19 2 3 4 5 numbers, that is, the asset and liability terms of the company. . . 6 A: No. 7 (Docket No. 25-4, Ex. 1, at 8:12-24.) 8 9 Even if I take Cruz assertions to be more than speculative, conclusory 10 allegations, Cruz is required to provide the basis of his knowledge and or 11 supporting evidence of those assertions. 12 13 14 15 16 A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. Fed. R. Evid. 602. Federal Rule of Civil Procedure 56(e) regarding affidavits in the 17 18 context of summary judgment similarly states, [a] supporting or opposing 19 affidavit must be made on personal knowledge, set out facts that would be 20 admissible in evidence, and show that the affiant is competent to testify on the 21 22 matters stated. Fed. R. Civ. P. 56(e)(1). This circuit has held that an affiant s 23 competence must be demonstrated affirmatively ( Rule 56(e) requires that the 24 affidavit . . . set forth facts that would be admissible in evidence, and show 25 affirmatively that the affiant is competent to testify to the matters stated therein. 26 27 Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000); Hoffman v. Applicators 28 Sales & Serv., Inc., 439 F.3d 9, 14 (1st Cir. 2006); and furthermore that 29 1 CIVIL 06-1863 (ADC) (JA) 20 2 3 4 statements must be supported with particularized factual information. PÃ©rez v. 5 6 Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001). Indeed, failure to properly 7 support statements in an affidavit has resulted in summary judgment against the 8 party so failing: 9 10 11 12 13 14 15 16 [Plaintiff s] affidavit does not contain adequate specific factual information based on personal knowledge to back his allegation of . . . discrimination and so create a triable issue. In large part, it contains only [plaintiff s] own speculation about the way the [place of employment] was run. Thus [plaintiff] cites no supporting evidence to which he could testify in court tending to prove his conclusory allegation[s] . . . Neither did [Plaintiff] indicate how he had come to have personal knowledge of these alleged facts. QuiÃ±ones v. Buick, 436 F.3d 284, 290-91 (1st Cir. 2006) (citing Cadle Co. v. 17 18 Hayes, 116 F.3d 957, 961 & n.5 (1st Cir. 1997)), where a self-serving affidavit 19 [was in]sufficient to defeat summary judgment [because it] neither contain[ed] 20 enough specifics nor [spoke] meaningfully to matters within [the plaintiff's] 21 22 personal knowledge. QuiÃ±ones v. Buick, 436 F.3d at 291 (quoting Cadle Co. v. 23 Hayes, 116 F.3d at 961 n.5); see also QuiÃ±ones v. Buick, 436 F.3d at 291 24 ( Without first-hand knowledge of facts supporting his allegations, [plaintiff] could 25 not simply testify to a belief that [another employee] was given advantages that 26 27 28 29 [plaintiff] was not. ); VelÃ¡zquez-GarcÃa v. Horizon Lines of P.R., Inc., 473 F.3d 11, 1 CIVIL 06-1863 (ADC) (JA) 21 2 3 4 18 (1st Cir. 2007) (citing Napier v. F/V Deesie, Inc., 454 F.3d 61, 66 (1st Cir. 5 6 2006)). 7 In the instant case, plaintiff Cruz does not offer any evidence, nor set forth 8 any specific facts to support a finding that he has personal knowledge of the 9 matters to which he testifies in his sworn statement (matters which purport to 10 11 cast the shadow of pretext on defendant s proffered reasons for its actions). He 12 has not produced any documentary support or named the basis of his knowledge 13 as to either of his assertions that (a) no other employee s hours were cut or (b) 14 15 that defendant G.T.S. was doing well financially and thus there was no need to cut 16 Cruz hours. Notwithstanding the personal knowledge issue, plaintiff has not 17 identified specific facts (e.g, numerical data, reported or recorded information, 18 etc.) supporting those allegations at all. Without support, these assertions do not 19 20 provide any basis on which a reasonable fact-finder could conclude that G.T.S. s 21 proffered reasons for the reduction in Cruz hours (putting aside the question of 22 whether this reduction amounts to constructive discharge) are false, let alone 23 24 wholly pretextual for age discrimination. Thus, these assertions are not sufficient 25 to meet Cruz burden of demonstrating that G.T.S. s proffered reasons for its 26 actions were pretext for discrimination. 27 In sum, I find that plaintiff has failed to present a genuine issue of material 28 29 fact as to whether proffered reasons for its actions are pretextual. Thus there is 1 CIVIL 06-1863 (ADC) (JA) 22 2 3 4 no material issue here of discrimination vel non. St. Mary s Honor Ctr. v. Hicks, 5 6 7 509 U.S. at 518 (quoting United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)). 8 9 Since plaintiff Cruz has failed to demonstrate that there are material facts genuinely in dispute as to his ADEA discrimination claim, summary judgment is 10 11 GRANTED as to that claim. See, e.g, Torrech-HernÃ¡ndez v. Gen. Elec. Co., 519 12 F.3d at 53, where plaintiff s ADEA claim failed in part for absence of pretext ; see 13 also DÃ¡vila v. CorporaciÃ³n de P.R. para la DifusiÃ³n PÃºblica, 498 F.3d at 17 (citing 14 15 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-47 (2000)) ( to 16 withstand summary judgment in an age discrimination case, there must be some 17 significantly probative evidence from which the factfinder can infer that the 18 employer discharged the employee because of his age. ); VelÃ¡zquez-FernÃ¡ndez 19 20 v. NCE Foods, Inc., 476 F.3d at 8 ( it is likely that [plaintiff] has made out a prima 21 facie case under both the ADEA and [Puerto Rico] Law 100. However, we need 22 not definitively decide this question because it is clear he has failed to muster the 23 24 25 26 27 28 29 evidence required to suggest pretext. ). B. Retaliation Under the ADEA Title 29 U.S.C. § 623(d) makes it unlawful for an employer to discriminate against any of his employees or applicants for employment . . . because such individual . . . has opposed any [discriminatory practice of the employer], or 1 CIVIL 06-1863 (ADC) (JA) 23 2 3 4 5 6 7 8 9 because such individual. . .has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. 29 U.S.C. § 623(d). To make out a prima facie case of retaliation, plaintiff must show that (1) he engaged in protected activity [either opposing discrimination or participating 10 11 in anti-discrimination procedures]; (2) he suffered an adverse employment action 12 after or contemporaneous with such activity; and (3) there existed a causal link 13 between the protected activity and the adverse job action. Benoit v. Tech. Mfg. 14 15 Corp., 331 F.3d 166, 174-75 (1st Cir. 2003) (citing Wyatt v. City of Boston, 35 16 F.3d 13, 15 (1st Cir. 1994)); see Fantini v. Salem State Coll., 557 F.3d 22, 32 17 (1st Cir. 2009). 18 Retaliation claims, like ADEA claims, are evaluated under the now-familiar 19 20 McDonnell Douglas burden-shifting framework. See Mesnick v. Gen. Elec. Co., 21 950 F.2d 816, 827 (1st Cir. 1991). Once the prima facie case is established as 22 above, the fact-finder looks to the employer to proffer a non-retaliatory reason for 23 24 the adverse action, and, once that is done, immediately back to plaintiff to 25 demonstrate that the proffered reason is pretext. The instant plaintiff, however, 26 does not survive the first (prima facie) prong as to the retaliation claims. There 27 28 29 will be no discussion of G.T.S. s proffer, nor of its pretextual nature or otherwise. 1 CIVIL 06-1863 (ADC) (JA) 24 2 3 4 It is unclear precisely what Cruz is claiming to be the protected activity in 5 6 which he engaged and was subsequently subject to retaliation. Based on the 7 record, he appears to be claiming that his protected activity took two forms, and 8 they were separate acts of retaliation as to each. 9 (i) Cruz complaints: First, Plaintiff refers generally to undocumented, 10 11 unsubstantiated complaints of maltreatment, during the time of his 12 employment. (First Amended Complaint, Docket No. 5, at 2, ¶ 4; see also 13 Plaintiffs Opposing Statement of Material Facts, Docket No. 29-2, at 5, ¶ 20.) He 14 15 alleges that he was retaliated against for making these complaints and that the 16 retaliation took the form of further mistreatment and ultimately, constructive 17 discharge. He does not assert that these complaints in any way indicated his 18 belief that the maltreatment was based on age. 19 20 While informal complaints of discrimination could conceivably fit into the 21 opposition clause of the prohibition against retaliation, those complaints would 22 have to actually allege discrimination in order for the retaliation claim to be 23 24 plausible. The retaliation statute protects employee s opposition to discriminatory 25 practices by employers. See 29 U.S.C. § 623(d). Its language demands the 26 interpretation that a protected opposition must in some way reference 27 28 29 discrimination. This court has stated: in order to trigger statutory coverage 1 CIVIL 06-1863 (ADC) (JA) 25 2 3 4 plaintiff must specifically base his dissatisfaction or actions on ageist grounds. 5 6 MachÃn v. Leo Burnett, Inc., 376 F. Supp. 2d 188, 204-05 (D.P.R. 2005). 7 (ii) Cruz resignation letter and EEOC filing: In their opposition to summary 8 judgment, plaintiffs raise an allegation not previously included in their pleadings, 9 namely that G.T.S. further retaliated against Cruz after he resigned by not 10 11 12 13 sending the proper COBRA notification regarding his right to continue of health insurance plan. (Docket No. 29, at 9, ¶ 4.) This argument is raised in a vague and minimally supported manner, almost 14 15 16 17 18 19 20 21 22 as an afterthought, in plaintiff s opposition to summary judgment. I review it with this circuit s familiar caveat in mind: issues 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. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citation omitted). 23 24 In his declaration Subject to Perjury, plaintiff Cruz states that in fact he had 25 the right to continued medical coverage as required by COBRA at G.T.S. 26 expense. (Docket No. 29-3, at 4, ¶ 8.) This is a legal conclusion which Cruz is 27 not qualified to make. I assess the COBRA-notice-violation-as-retaliation issue 28 29 based only on the factually supported legal arguments in the pleadings. 1 CIVIL 06-1863 (ADC) (JA) 26 2 3 4 Putting the issue of who was to pay for the continued coverage aside, 5 6 COBRA does require that employees who are terminated be given the opportunity 7 to continue their health-care coverage, 29 U.S.C. § 1161(a), and that employers 8 must notify their health care plan administrators of a termination within 30 days. 9 29 U.S.C. § 1166(a)(2). The health care administrators are then required to 10 11 provide notice to the employee of their right to continued coverage. 29 U.S.C. § 12 1166(c). Whether the termination was by discharge, resignation or constructive 13 discharge is immaterial. Only termination for gross misconduct, not at issue here, 14 15 16 17 18 absolves an employer of their notification responsibilities under COBRA. 29 U.S.C. § 1163(2). I now assess the requirements for plaintiff to make a prima facie case for retaliation with regard to the alleged failure to provide COBRA notice. Taking as 19 20 true plaintiff s assertion that there was a COBRA violation, in order to constitute 21 retaliation, Cruz would have to demonstrate that the failure to send the proper 22 notice was an adverse employment action under the meaning of the statute. 23 24 Furthermore, Cruz would have to establish that G.T.S. s failure to send the notice 25 was causally linked to a protected activity by Cruz. Here, the protected activities 26 on which plaintiff appears to be basing this retaliation claim seem to be his 27 resignation via a letter which made age-based discrimination allegations (arguably 28 29 an opposition activity) and also his EEOC filing on June 23 (unquestionably a 1 CIVIL 06-1863 (ADC) (JA) 27 2 3 4 protected participation ), which was approximately 23 days before the time ran 5 6 out for G.T.S. to send the proper notice. 7 An adverse employment action for the purposes of a retaliation claim is one 8 that, a reasonable employee would have found . . . materially adverse, which 9 . . . it well might have dissuaded a reasonable worker from making or supporting 10 11 a charge of discrimination. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 12 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 13 2006) (quoting Washington v. Illinois Dep t of revenue, 420 F.3d 658, 662 (7th 14 15 Cir. 2005)); see also Carmona-Rivera v. Commonwealth of P.R., 464 F.3d 14, 20 16 (1st Cir. 2006) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68) 17 ( The alleged retaliatory action must be material, producing a significant, not 18 trivial, harm. ), quoted in Canales v. Potter, 614 F. Supp. 2d 213, 218 (1st Cir. 19 20 2009). 21 Furthermore, [d]etermining whether an action is materially adverse 22 necessarily requires a case-by-case inquiry. Moreover, the inquiry must be cast 23 24 in objective terms. . . . Typically, the employer must either (1) take something 25 of consequence from the employee, say, by discharging or demoting her, reducing 26 her salary, or divesting her of significant responsibilities, or (2) withhold from the 27 employee an accouterment of the employment relationship, say, by failing to 28 29 follow a customary practice of considering her for promotion after a particular 1 CIVIL 06-1863 (ADC) (JA) 28 2 3 4 period of service. . . . Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) 5 6 (citations omitted). 7 Plaintiff Cruz has not demonstrated an adverse action that meets the 8 descriptions cited above. First, in order for an employer to be subject to the 9 statutory penalties for failure to provide COBRA notice, generally courts require 10 11 a finding of bad faith or prejudice to the employee. See GonzÃ¡lez Villanueva v. 12 Warner Lambert, 339 F. Supp. 2d 351, 359 (D.P.R. 2004) (citing RodrÃguez-Abreu 13 v. Chase Manhattan Bank, N.A., 986 F.2d 580, 588-89 (1st Cir. 1993) (stating 14 15 that even though the district court need not find bad faith or prejudice to impose 16 penalties, it may give dispositive weight to these factors); Bartling v. Fruehauf 17 Corp., 29 F.3d 1062, 1068-69 (6th Cir. 1994); Godwin v. Sun Life Assurance Co. 18 of Canada, 980 F.2d 323, 328-29 (5th Cir. 1992); Wesley v. Monsanto Co., 554 19 20 F. Supp. 93 (E.D. Mo. 1982); Pollock v. Castrovinci, 476 F. Supp. 606 (S.D.N.Y. 21 1979)); see also RodrÃguez v. Int l Coll. of Bus. & Tech., Inc., 364 F. Supp. 2d 40, 22 49 (D.P.R 2005) (citing Kerkhof v. MCI WorldCom, Inc., 282 F.3d 44, 56 (1st Cir. 23 24 2002)) ( A showing of prejudice or bad faith is not a prerequisite to the imposition 25 of statutory penalties for failing to inform an employee of the right to continued 26 coverage, but in the court's discretion, these factors may be given dispositive 27 28 29 weight. ). 1 CIVIL 06-1863 (ADC) (JA) 29 2 3 4 Since the record bears no evidence of bad faith and plaintiff has not 5 6 identified any specific damages ( prejudice suffered) related to the alleged failure 7 to notify, even were this allegation proven it would not result in penalty to G.T.S., 8 and thus it also fails to rise to the level of an adverse employment action. (See 9 RodrÃguez v. Int l Coll. of Bus. & Tech., Inc., 364 F. Supp. 2d at 49-50, where 10 11 court assessed statutory penalties on the basis of plaintiff s specific damage of 12 having to enroll in two different and more expensive health plans, as a result of 13 defendant employer s failure to provide COBRA notice.) Plaintiff Cruz failure to 14 15 16 17 18 allege specific damages related to this alleged failure to notify does not rise to the level of harm resulting from an adverse employment action. Even if I were to find that failure to send COBRA notice constitutes an adverse action, plaintiff still must demonstrate a causal link between that action 19 20 and his protected activities. Such a causal link is not explicitly described or 21 argued in the pleadings. Plaintiff s only conceivable argument as to causation is 22 a temporal one, as there are no other facts in evidence providing support for 23 24 causation. 25 The record reveals two protected activities: (1) arguably, Cruz resignation 26 letter, which effectuated the termination, and contained specific allegations of 27 28 29 ageism; (2) Cruz June 23 EEOC filing (notice of which was mailed to defendants 1 CIVIL 06-1863 (ADC) (JA) 30 2 3 4 on June 30, Docket No. 7 Ex. I). Both of Cruz actions occurred before July 16, 5 6 which is the approximate date before which G.T.S. was to send the COBRA notice. 7 In other words, to make a causation argument based on temporal proximity, 8 it has to be assumed that the adverse action consisted of permitting the deadline 9 to pass without sending the notice, and therefore protected activities that 10 11 12 13 occurred before that deadline are the cause of G.T.S. s failure to meet the deadline. Though temporal proximity between a protected activity and an adverse 14 15 action is sometimes sufficient, DeCaire v. Mukasey, 530 F.3d 1, 17 (1st Cir. 16 2008); Mariani-ColÃ³n v. Dep t of Homeland Sec., 511 F.3d at 224, here it does not 17 suffice because even in the presence of a compelling temporal sequence, courts 18 should consider the actions taken against the employee within the overall context 19 20 and sequence of events[,] . . . the historical background of the decision, any 21 departures from normal procedure, and contemporary statements by the 22 employer's decision makers. Vargas v. Puerto Rican-Am. Ins. Co., 52 F. Supp. 23 24 2d 305, 313-14 (D.P.R. 1999) (citing Hodgens v. Gen. Dynamics Corp., 144 F.3d 25 151, 168-69 (1st Cir. 1998)) (citation omitted), quoted in Canales v. Potter, 614 26 F. Supp. 2d at 218-19. 27 Here, the overall context is one in which plaintiff s relationship with his employer may have been characterized by animosity, but 28 29 until the termination of that employment, there were no allegations of age-based 1 CIVIL 06-1863 (ADC) (JA) 31 2 3 4 animosity. Furthermore, plaintiff has admitted that all employees experienced 5 6 similarly caustic interactions with G.T.S. president GarcÃa. While failure to send 7 the required COBRA notice may be considered a departure from normal 8 procedure, there is no evidence on record indicating that this alleged failure was 9 intentional. In fact, it can only be taken as a given that plaintiff Cruz did not 10 11 receive the required notice. 12 Finally, plaintiff has not identified even one statement by any G.T.S. 13 decision makers that would lend support to the interpretation that the alleged 14 15 16 17 18 failure to send the required COBRA notice was causally connected to retaliatory purposes. For the foregoing reasons, I cannot find that plaintiff has demonstrated that a reasonable fact-finder could find a causal link between his protected activities 19 20 and G.T.S. s alleged failure to send the COBRA notice. 21 Thus, plaintiff s retaliation claim as to the alleged COBRA violation fails 22 because plaintiff fails to make out a prima facie case as to the fact that the failure 23 24 was indeed an adverse employment action or that the alleged failure to send the 25 notice was causally linked to plaintiff s protected activities. Defendant s motion 26 for summary judgment is GRANTED as to all retaliation claims. 27 28 29 1 CIVIL 06-1863 (ADC) (JA) 32 2 3 4 C. Supplemental Claims 5 6 As to the local law claims plaintiffs are asserting under Puerto Rico Law No. 7 80, Puerto Rico Law No. 100 and Puerto Rico Civil Code, Article1802, because 8 summary judgment is granted as to the federal claim, these local claims will not 9 be considered here. 10 11 It is well-settled law that [u]nder 28 U.S.C. § 1367, [a] district court may 12 decline to exercise supplemental jurisdiction if the district court has dismissed 13 all claims under which it has original jurisdiction. GonzÃ¡lez-de-Blasini v. Family 14 15 Dep t, 377 F.3d 81, 89 (1st Cir. 2004) (quoting 28 U.S.C. § 1367(c); (citing 16 Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 104 (1st Cir. 2004)). 17 Certainly, if the federal claims are dismissed before trial, . . . the state claims 18 should be dismissed as well. United Mine Workers of Am. v. Gibbs, 383 U.S. 19 20 715, 726 (1966). [I]n the usual case in which all federal law claims are 21 eliminated before trial, the balance of factors to be considered under the pendent 22 jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point 23 24 toward declining to exercise jurisdiction over the remaining state-law claims. 25 RodrÃguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995) (quoting 26 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). This is such a 27 case. Indeed, as to the Law No. 100 claim, age discrimination claims asserted 28 29 under the ADEA and under Law 100 are coterminous. DÃ¡vila v. CorporaciÃ³n de 1 CIVIL 06-1863 (ADC) (JA) 33 2 3 4 P.R. para la DifusiÃ³n PÃºblica, 498 F.3d at 18; Torres-Alman v. Verizon Wireless P. 5 6 R., Inc., 522 F. Supp. 2d 367, 402 (D.P.R. 2007). Considerations of judicial 7 economy, as discussed, guide my determination that the Law No. 80 and Article 8 1802 claims should likewise be dismissed. 9 In sum, having dismissed the federal claim before trial, the court will not 10 11 retain jurisdiction over plaintiff s supplemental Law No. 100, Law No. 80, or Article 12 1802 state-law causes of action. MelÃ©ndez v. Autogermana, Inc., 606 F. Supp. 13 2d 189, 198-99 (D.P.R. 2009). 14 IV. CONCLUSION 15 16 Plaintiff has not produced sufficient credible evidence to allow a reasonable 17 fact-finder to conclude that he suffered an adverse employment action due to 18 age-based discrimination or retaliation, and thus defendant s summary judgment 19 20 motion as to ADEA claim is GRANTED. Since the other claims are all brought 21 under local law (specifically, Puerto Rico Law No. 80, Puerto Rico Law No. 100, 22 and Article 1802) under supplementary jurisdiction, they are DISMISSED without 23 24 prejudice. 25 The Clerk is directed to enter judgment dismissing the case in its entirety. 26 At San Juan, Puerto Rico, this 28th day of July, 2009 27 28 29 S/ JUSTO ARENAS Chief United States Magistrate Judge

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