-CVR Palacios v. FirstBank Puerto Rico, No. 3:2011cv01420 - Document 62 (D.P.R. 2012)

Court Description: OPINION AND ORDER: Granting in part and Denying in part 26 motion for summary judgment. Signed by Judge Gustavo A. Gelpi on 8/29/2012. (TC)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF PUERTO RICO 3 4 JUANITA PALACIOS, 5 Plaintiff, 6 7 v. Civil No. 11-1420 (GAG) FIRSTBANK PUERTO RICO, 8 Defendants. 9 10 OPINION AND ORDER 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Juanita Palacios ( Plaintiff ) brings this action alleging age discrimination under the Age Discrimination in Employment Act ( ADEA ), 42 U.S.C. §§ 621 et seq. Plaintiff also brings state law claims alleging violations of Puerto Rico Law 80 of May 30, 1976 ( Law 80 ), P.R. LAWS ANN. tit. 29, §§ 185a et seq.; Puerto Rico Law 100 of June 30, 1959 ( Law 100 ), P.R. LAWS ANN. tit. 29, §§ 146 et seq.; Puerto Rico Law No. 115 of December 20, 1991 ( Law 115 ), P.R. LAWS ANN. tit. 29, § 194a; and Articles 1802 and 1803 of the Civil Code of Puerto Rico ( Articles 1802 and 1803 ), P.R. LAWS ANN. tit. 31, §§ 5141 and 5142. Plaintiff filed this action against her former employer First Bank Puerto Rico ( Defendant or First Bank ). Presently before the court is Defendant s motion for summary judgment (Docket No. 26). Plaintiff opposed the motion (Docket No. 38). After reviewing these submissions and the pertinent law, the court GRANTS in part and DENIES in part First Bank s motion at Docket No. 26. I. Standard of Review Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see FED.R.CIV.P. 56(a). An issue is genuine if it may reasonably be resolved in favor of either party at trial, and material if it 1 Civil No. 11-1420 (GAG) 2 possess[es] the capacity to sway the outcome of the litigation under the applicable law. Iverson 3 v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (citations omitted). The 4 moving party bears the initial burden of demonstrating the lack of evidence to support the non- 5 moving party s case. Celotex, 477 U.S. at 325. The movant must aver an absence of evidence to 6 support the nonmoving party s case. The burden then shifts to the nonmovant to establish the 7 existence of at least one fact issue which is both genuine and material. Maldonado-Denis v. 8 Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The nonmovant may establish a fact is 9 genuinely in dispute by citing particular evidence in the record or showing that either the materials 10 cited by the movant do not establish the absence or presence of a genuine dispute, or that an adverse 11 party cannot produce admissible evidence to support the fact. FED.R.CIV.P. 56(c)(1)(B). If the 12 court finds that some genuine factual issue remains, the resolution of which could affect the outcome 13 of the case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 14 U.S. 242, 248 (1986). 2 15 When considering a motion for summary judgment, the court must view the evidence in the 16 light most favorable to the non-moving party and give that party the benefit of any and all reasonable 17 inferences. Id. at 255. Moreover, at the summary judgment stage, the court does not make 18 credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, 19 however, if the non-moving party s case rests merely upon conclusory allegations, improbable 20 inferences, and unsupported speculation. Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 21 17, 21 (1st Cir. 2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003)). 22 II. Relevant Factual Background 23 Plaintiff began working for Defendant on April 20, 1987, as a Project Leader in the 24 Programming Department. (See Docket Nos. 26-1 at ¶ 1; 39 at ¶ 1.) She was appointed 25 Programming Supervisor in the Programming Department on June 3, 1992. (See Docket Nos. 26-1 26 at ¶ 2; 39 at ¶ 2.) Plaintiff received Defendant s employee manual on several occasions during her 27 employment, which included Defendant s open policy for employees to express their complaints as 28 well as the equal employment opportunity policy that provides procedural steps to voice any such 1 Civil No. 11-1420 (GAG) 2 complaints. (See Docket Nos. 26-1 at ¶ 3; 39 at ¶ 3.) The employee manual includes job 3 descriptions for each position, but these duties are subject to change depending on Defendant s 4 needs. (See Docket No. 26-1 at ¶ 4; 39 at ¶ 4.) A Programming Supervisor has the following duties: 5 (1) meet with different business areas to analyze and attend their requirements; (2) evaluate the 6 viability of each requirement; (3) select and assign a programmer to work with each requirement; 7 (4) coach the programmers and assist them by offering technical assistance in the development of 8 their programs; (5) supervise the tasks assigned to the programmers and safeguard timely completion 9 of each project; (6) evaluate the programmers; (7) design, develop and implement new programs; 10 (8) prepare progress reports of the applications under her responsibility, participate in the evaluation 11 of the effectiveness of new programs and of their changes; (9) plan meetings with the users to make 12 viable the development of new projects related with existing applications; and (10) ensure 13 programmer attendance at trainings and seminars within the institution and monitor their working 14 conditions. (See Docket Nos. 26-1 at ¶ 5; 39 at ¶ 5.) 3 15 Beginning in 2006 and extending through 2010, First Bank realized it was in financial 16 trouble and forecasted its financial condition would continue to worsen in the near future. (See 17 Docket Nos. 26-1 at ¶ 7; 39 at ¶ 7.) In response to this forecast, Defendant launched a Business 18 Rationalization ( BR ) initiative aimed at reducing costs and increasing profits. (See Docket Nos. 19 26-1 at ¶ 9; 39 at ¶ 9.) The parties dispute whether this initiative originally included the termination 20 of employees and elimination of positions. (See id.) Defendant implemented the BR over time and 21 in phases. During the third phase of the BR, First Bank began eliminating positions and reducing 22 performance bonuses. (See Docket Nos. 26-1 at ¶ 14; 39 at ¶ 14.) During this time, the System 23 Support Department conducted a risk analysis, concluding that certain positions were not critical to 24 operation; however the parties dispute whether this report suggested Plaintiff s position should be 25 eliminated. (See Docket Nos. 26-32 at 5-6; 60-1 at 22.) 26 On October 30, 2007, Erie Perez ( Perez ) began working at First Bank as the Corporate 27 Technology Officer. (See Docket Nos. 26-1 at 16; 39 at ¶ 16.) In October, 2009, Juan Soto Arvelaiz 28 1 Civil No. 11-1420 (GAG) 2 was appointed System Development Director and reported directly to Perez. (See Docket Nos. 26-1 3 at 17; 39 at 17.) 4 4 The Design and Analysis Department handles the design analysis related to Requirements, 5 while the System Support Department creates plans and best practices for validations and remedies 6 for system failures. (See Docket No. 26-1 at ¶ 19; 39 at ¶ 19.) Formalizing Requirements for the 7 Corporate Technology Group involves the making, assessment and analysis of the petitions made 8 by the sponsors, verifying licenses, databases and servers in order to show the clients the functional 9 and non-functional aspects. (See Docket Nos. 26-1 at ¶ 20; 39 at ¶ 20.) The Mainframe Department 10 performs software construction through the bank s core system while the Open Systems Department 11 deals with software construction. (See Docket Nos. 26-1 at ¶ 21; 39 at ¶ 21.) Guillermo Mascarell 12 ( Mascarell ) was hired as the Manager of the Analysis and Design Department on October 22, 13 2009. (See Docket Nos. 26-1 at ¶ 25; 39 at ¶ 25.) He is thirty-seven years old. (See Docket Nos. 14 40 at ¶ A; 53 at ¶ A.) In that position, Mascarell handles all the requirements petitions made by First 15 Bank. (See Docket No. 26-1 at ¶ 26; 39 at ¶ 26.) His essential duties include: (1) coaching and 16 mentoring the team under his supervision; (2) establishing goals and objective for staff; (3) 17 conducting performance review of the staff and professional development plans; (4) teaching the 18 gathering of requirements and design methodologies; (5) planning and directing business analysis 19 and design aspects of technologies system delivery; (6) guiding evaluation and consultation of 20 solution tradeoffs and application design to ensure the decisions taken align with business goals and 21 corporate standards. (See Docket Nos. 26-1 at ¶ 26; 39 at ¶ 26.) 22 Defendant s View on Plaintiff s Responsibilities 23 Defendant maintains Plaintiff worked as a Programming Supervisor in the Programming 24 Department. (See Docket No. 26-12.) Defendant admits it discussed with Plaintiff regarding a 25 possible promotion to a managerial position, but maintains it never offered the position to Plaintiff. 26 (See Docket Nos. 26-114; 26-116.) After the reorganization, and pursuant to the BR, Plaintiff 27 continued performing the duties of a Program Supervisor, as she received Requirements from the 28 1 Civil No. 11-1420 (GAG) 2 system as an input to the testing process to determine the criteria for acceptance and how the solution 3 would be validated. (See Docket Nos. 26-1 at ¶ 36; 39 at ¶ 36.) The only duty she did not perform 4 after the reorganization for which she previously was responsible, was supervising other employees. 5 (See Docket No. 26-116.) After her termination, no one was hired to replace her as a Programming 6 Supervisor. 5 7 Plaintiff s View on Plaintiff s Responsibilities 8 After meeting with Perez, Plaintiff understood Defendant was creating a new position for her 9 titled Requirements Manager. (See Docket No. 60-1 at 3.) After being offered the position, her job 10 duties began to change. (See Docket No. 60-1 at 4.) She began to educate herself by reading 11 materials that would allow her to perform her new duties and met with Rafael Serrano ( Serrano ) 12 to discuss her new responsibilities. (See Docket No. 60-3.) Plaintiff began working with Serrano 13 on a project and believed her position had officially changed. (See Docket No. 60-4.) Plaintiff 14 received a new parking assignment with the title Audit and Compliance Manager. (See Docket 15 No. 40-11.) In an e-mail, Senior Vice-President Miguel Mejias described her duties as including 16 those of a Programming Supervisor in addition to the definition of the standard of the documents 17 of Software Requirements specifications . [sic] Functional Specification Documents and Test 18 Plan Document with the consensus of the areas of development. (Docket No. 60-12.) 19 Plaintiff s Termination 20 The parties do agree that Marscarell was appointed in October 2009 and that Plaintiff was 21 laid off on July 2, 2010. (See Docket Nos. 26-1 at ¶ 50; 39 at ¶ 50.) Plaintiff was fifty-nine years 22 old at the time of her termination. (See Docket 26-88.) The parties also agree that no new 23 employees have been hired after Plaintiff s termination. (See Docket Nos. 26-1 at ¶ 52; 39 at ¶ 52.) 24 The position of Programming Supervisor once held by Plaintiff no longer exists. (See Docket Nos. 25 26-1 at ¶ 54; 39 at ¶ 54.) 26 Alleged Discriminatory Remarks 27 During a meeting in which Plaintiff and Perez were present, Perez used the term viejitos 28 to refer to another worker. (See Docket Nos. 40 at ¶ I; 53 at ¶ I.) The parties disagree as to the exact 1 Civil No. 11-1420 (GAG) 2 context in which the term was used, as well as whom Perez was referencing. (See id.) Plaintiff 3 understood Perez was saying that the past reorganization was unsuccessful because old people were 4 unable to adapt to or carry out the necessary structural changes. (See Docket No. 60-1 at 14.) 5 Defendant argues Perez only referred to Joaquin Negron, an employee of First Bank who was hired 6 after Plaintiff, and that this was an isolated incident. (See id.) 6 7 Confidential Separation Agreement and General Release 8 Plaintiff signed a Separation Agreement and General Release ( Separation Agreement ) upon 9 her termination by Defendant. (See Docket No. 26-148.) The Separation Agreement details the total 10 sum First Bank was responsible for paying Plaintiff, primarily in return for Plaintiff s waiver of all 11 potential future claims against First Bank. The Separation Agreement specifically states Plaintiff 12 agrees to waive any age discrimination, Law 80 and Law 100 claims against Defendant. (See id. at 13 ¶ 5.) Paragraph 1 states Defendant shall pay Plaintiff $78,414.82, payment for regular vacation days 14 Plaintiff accrued, and a $600 end of year bonus. (See Docket No. 26-148 at ¶ 1.) The Separation 15 Agreement includes a severability clause stating that if any clause is found to be null and void by 16 a court, the rest of the Separation Agreement remains in full force and effect. (See id. at ¶ 13.) 17 III. Legal Analysis 18 In its motion for summary judgment, Defendant contends that Plaintiff cannot establish a 19 case of age discrimination. (See Docket No. 26-159 at 19.) Defendant argues Plaintiff cannot show 20 that the decision to terminate her position pursuant to the BR was made due to discrimination based 21 on age. (See id.) Further, Defendant argues that if Plaintiff does provide sufficient evidence to meet 22 her prima facie case, Plaintiff fails to demonstrate the BR was a pretext to firing Plaintiff due for her 23 age. (See id. at 20.) 24 A. ADEA 25 The ADEA makes it unlawful for an employer to fail or refuse to hire or discharge any 26 individual or otherwise discriminate against any individual . . . because of such individual s age. 27 29 U.S.C. § 623(a)(1). In assessing an ADEA claim where there is no direct evidence of 28 discrimination, the court applies the burden shifting framework established in McDonnell Douglas 1 Civil No. 11-1420 (GAG) 2 Corp. v. Green, 411 U.S. 792 (1973). See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 3 133, 142 (2000) (assuming that the McDonnell Douglas framework applies to an ADEA claim, and 4 applying it to such a claim, [b]ecause the parties do not dispute the issue. ); Goldman v. First Nat l 5 Bank of Boston, 985 F.2d 1113, 1117 (1st Cir. 1993) (finding that in absence of direct evidence of 6 age discrimination, an ADEA claim is governed by burden-shifting framework set forth in 7 McDonnell Douglas). 7 8 A prima facie case for age discrimination under the ADEA requires a plaintiff to prove: (1) 9 that he was over 40 years old; (2) that he has met his employer s legitimate job expectations; (3) that 10 the employer took adverse action against him and; (4) that the employer did not treat age neutrally 11 or that younger persons were retained in the same position. See Phair v. New Page Corp., 708 F. 12 Supp. 2d 57, 63-64 (1st Cir. 2010) (citing Goldman, 985 F.2d at 1117; Hidalgo v. Overseas Condado 13 Ins. Agencies, Inc., 120 F.3d 328, 333 (1st Cir. 1997)). According to the First Circuit, a plaintiff s 14 burden to demonstrate a prima facie case is relatively easy to meet. See Rathbun v. Autozone, Inc., 15 361 F.3d 62, 71 (1st Cir. 2004) (referring to a prima facie case as a modest showing ); Zapata- 16 Matos v. Reckitt & Colman, Inc., 227 F.3d 40, 44 (1st Cir. 2002) (describing it as the low standard 17 of showing prima facie discrimination ). 18 Under the McDonnell Douglas burden shifting framework, once this prima facie case is 19 shown, a presumption of discrimination arises and the burden of production then shifts to the 20 defendant employer to show a legitimate, non-discriminatory reason for the termination. See 21 Rathbun, 361 F.3d at 71. If the defendant satisfies its burden of production, the presumptions and 22 burdens of the McDonnell Douglas framework are no longer relevant. Velez v. Thermo King de 23 Puerto Rico, Inc., 585 F.3d 441, 447 (1st Cir. 2009) (citing St. Mary s Honor Ctr. v. Hicks, 509 U.S. 24 502, 510 (1993)). In such a situation, the plaintiff then has the full and fair opportunity to 25 demonstrate, through presentation of his own case and through examination of the defendant s 26 witnesses, that the proffered reason was not the true reason for the employment decision, . . . and that 27 age was. Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 F.3d 17, 25 (1st Cir. 28 1998) (quoting St. Mary s, 509 U.S. at 507-08) (internal quotation marks and citations omitted)). 1 Civil No. 11-1420 (GAG) 2 Plaintiff is required to do more than simply refute or cast doubt on the employers rationale. 3 Carmona Rios v. Aramark Corp., 139 F. Supp. 2d 210, 217 (D.P.R. 2001). The Supreme Court has 4 declared that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by 5 a preponderance of the evidence, that age was the but-for cause of the challenged adverse 6 employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). This but for 7 standard is a much higher standard than that which has been applied to Title VII cases. Id. at 177-78. 8 It means that age was the reason that the employer decided to act. Id. at 168 (citing Hazen Paper 9 Co. v. Biggins, 507 U.S. 604, 610 (1993)). 8 10 Defendant s motion for summary judgment assumes that Plaintiff has established the first 11 three prongs of the prima facie case of age discrimination. (See Docket No. 26-159 at 19.) The 12 court agrees there is sufficient evidence on the record to demonstrate all three prongs, therefore, the 13 court shall proceed to analyze the fourth prong. 14 Plaintiff supports her theory that Defendant did not treat age neutrally during the BR because 15 the duties she performed prior to her termination were given to Mascarell, a significantly younger, 16 relatively new hire. See O Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996) 17 (holding replacement substantially younger than Plaintiff to be an indicator of age discrimination). 18 Plaintiff provides evidence that she performed the duties of the Requirement Manager in addition 19 to her duties as a Programming Supervisor prior Mascarell s hiring. She also contends the evidence 20 demonstrates that she was informally offered the position, began to educate herself regarding the 21 new responsibilities of that position and that First Bank treated her as if she was performing the 22 duties of that position. In sum, Plaintiff contends that summary judgment should be defeated 23 because Plaintiff has demonstrated her duties were not simply absorbed by other employees, but 24 were given to Mascarell to perform. 25 Defining Plaintiff s job duties is crucial to this litigation and is clearly in dispute. Both 26 parties point to evidence that supports their positions; however, those positions cannot be reconciled 27 as a matter of law. If a jury were to credit Plaintiff s testimony, then the jury could find that Plaintiff 28 was performing the managerial functions now performed by Mascarell prior to her termination. The 9 1 Civil No. 11-1420 (GAG) 2 evidence provided by Plaintiff is sufficient to allow a reasonable jury to arrive at this conclusion. 3 Additionally, Plaintiff points to a statement by Perez that unambiguously is negative towards 4 older workers. The statement, while not directed at Plaintiff at the time it was uttered, is relevant 5 to this action. Perez s statement conveys the meaning that a similar reorganization plan was 6 previously attempted, but failed because those who were entrusted to make the changes were old and 7 did not carry out the changes. (See Docket No. 53-71.) Perez is a senior officer at First Bank. This 8 statement clearly means that he believes the previous reorganization was unsuccessful because old 9 employees were unable to make the necessary changes. A reasonable jury could infer that Plaintiff 10 was terminated because, as Perez believes, she was old and therefore unwilling or unable to make 11 the necessary changes for successful reorganization. A jury could infer Mascarell was retained 12 instead of Plaintiff because he was significantly younger than Plaintiff, and therefore more apt to 13 make the BR successful. Taken as a whole, the evidence marshaled by Plaintiff is satisfies the fourth 14 prong of the prima facie case. 15 Defendant has met its burden of production. Whatever the merits of an employer s business 16 decision, [it] is free to terminate an employee for any nondiscriminatory reason. Webber v. Int l 17 Paper Co., 417 F.3d 229, 238 (1st Cir. 2005) (citing Fennell v. First Step Designs, Ltd., 83 F.3d 526, 18 537 (1st Cir. 1996)). First Bank has provided a legitimate, non-discriminatory reason for Plaintiff s 19 termination -the BR. Accordingly, Plaintiff must now show, by preponderance of the evidence, that 20 Defendant s proffered reason is a pretext for discriminatory action. St. Mary s, 509 U.S. at 507-08. 21 A reasonable jury could credit Defendant s evidence and find Plaintiff s termination was 22 without discriminatory animus. Defendant disagrees with Plaintiff s assertion that she performed 23 any managerial duties and claims she only performed the duties of a Programming Manager. 24 Defendant claims that Plaintiff s duties as a Programming Manager were absorbed by other 25 employees in that department and that no one was hired to perform the duties formerly performed 26 by Plaintiff. However, the presence of genuine issues of material fact is sufficient to defeat summary 27 judgment in this case. 28 At the third stage of the McDonnel Douglas test, Plaintiff no longer enjoys the presumption 10 1 Civil No. 11-1420 (GAG) 2 of discrimination. See Thermo King de Puerto Rico, 585 F.3d at 447. The court finds the evidence 3 relied upon by Plaintiff to demonstrate her prima facie case also suffices to meet the third prong of 4 the burden shifting test. If credited, the evidence could lead a jury to find the BR was used as a 5 pretext to terminate Plaintiff because of her age. If the jury finds that Plaintiff acted as a manager 6 prior to her termination, those duties were then given to Mascarell and that Perez s statement applied 7 to this reorganization, then a reasonable jury could find Plaintiff has carried her burden of proof in 8 this case. 9 10 Therefore, the court DENIES Defendant s motion for summary judgment as to Plaintiff s ADEA claim. 11 B. 12 Defendant argues Plaintiff cannot succeed on her state law claims because she signed a 13 waiver of all such claims when leaving First Bank. (See Docket No. 26-159 at 26-30.) Plaintiff does 14 not dispute that she signed the Separation Agreement, however, Plaintiff argues the waiver is invalid. 15 The parties agree Plaintiff signed the Separation Agreement, that the Separation Agreement included 16 a waiver of Plaintiff s ADEA claim and that the Separation Agreement did not comport with the 17 special release requirements of the Older Workers Benefit Protection Act ( OWBPA ). (See 18 Docket Nos. 26-158 at 26-27; 38 at 35-38.) Because the parties agree the waiver did not effectively 19 waive Plaintiff s ADEA claim, the court need only decide whether the Separation Agreement validly 20 waived her non-ADEA state law claims. 21 Waiver of State Causes of Action 1. Severability Clause 22 The waiver Plaintiff signed contains a severability clause which states, In case a court with 23 jurisdiction declares any party, clause or obligation of this Agreement null, invalid or that it cannot 24 be complied with, the rest of this document will continue with full force and effect. (Docket No. 25 26-148 at ¶ 13.) Defendant argues the severability clause allows the remainder of the release to have 26 full force and effect. (See Docket No. 26-159 at 26.) Defendant argues that if the rest of the waiver 27 remains intact, then Plaintiff is precluded from pursuing her state law claims. (See id.) 28 The First Circuit has upheld waivers of claims even though a waiver was invalid as to an 11 1 Civil No. 11-1420 (GAG) 2 ADEA claim. See Stonkus v. City of Brockton School Dept., 322 F.3d 97, 103 (1st Cir. 2003) 3 (holding state law age discrimination claim not covered by OWBPA); Rivera-Flores v. Bristol-Myers 4 Squibb Caribbean, 112 F.3d 9, 11 (1st Cir. 1997). See also Commonwealth of Massachusetts v. Bull 5 HN Information Systems, Inc., 143 F. Supp. 2d 134, 160 (D. Mass. 2001). The First Circuit has 6 consistently found waivers of future claims valid when the plaintiff receives additional benefits in 7 exchange. See Stonkus, 322 F.3d at 102 ( courts have routinely upheld releases given in exchange 8 for additional benefits. ); Rivera-Flores, 112 F.3d at 11 ( Courts have, in the employment law 9 context, commonly upheld releases given in exchange for additional benefits. ). As these precedents 10 dictate, if Plaintiff signed the waiver for additional benefits, then Plaintiff has waived her right to 11 pursue these state law claims. 2. 12 Additional Benefits in Exchange for Plaintiff s Waiver 13 Plaintiff argues she did not receive any additional compensation or benefits for waiving her 14 right to seek judicial relief. (See Docket No. 38 at 28.) In fact, Plaintiff argues she did not receive 15 the minimum statutory compensation required by the Puerto Rico Unjust Discharge Act, a statutory 16 minimum that legally cannot be waived. P.R. LAWS ANN. tit. 29 § 185a et seq. This law is 17 unwaiveable and states that employees discharged without cause have the right to receive the 18 compensation provided in § 185a of this title . . . Any contract or part thereof in which the employee 19 waives the compensation to which he is entitled to, pursuant to §§ 185a-185m of this title, shall be 20 null and void. P.R. LAWS ANN. tit. 29 § 185i. It is uncontested that Plaintiff worked for First Bank 21 for over twenty years. (See Docket Nos. 26-1 at ¶¶ 1, 50; 38 at ¶¶ 1, 50.) As such, she was entitled 22 to six months salary plus roughly sixty-nine additional weeks of compensation, pursuant to Section 23 185a. P.R. LAWS ANN. tit. 29, § 185a.1 The waiver states that Plaintiff received $78,414.82, 24 25 1 26 27 28 In relevant part, Section 185a states: Every employee in commerce, industry, or any other business or work place, designated hereinafter as the establishment, in which he/she works for compensation of any kind, contracted without a fixed term, who is discharged from his/her employment without just cause, shall be entitled to receive from his/her employer, 12 1 Civil No. 11-1420 (GAG) 2 payment for her accrued vacation days and $600 for the 2010 Christmas Bonus as established by 3 law. (See Docket No. 26-148 at ¶ 3.) These monies do not meet the minimum requirements as set 4 out by Section 185a.2 Plaintiff s six-month salary pursuant to Section 185a(a) and weekly salary 5 pursuant to Section 185a(b) are well over $100,000. Plaintiff received less than that amount under 6 the Separation Agreement. The evidence demonstrates that Plaintiff did not receive the statutory 7 minimum when she was laid off. Accordingly, the evidence shows that Plaintiff did not receive 8 additional benefits or compensation in return for waiving all potential claims related to her 9 termination. 10 The law is clear in this respect, Plaintiff must receive additional benefits in exchange for her 11 waiver of potential claims. See Stonkus, 322 F.3d at 102; Rivera-Flores, 112 F.3d at 11. Plaintiff 12 did not receive additional benefits; therefore, the waiver of her state law claims in not valid and 13 those claims will be put to the jury. The court DENIES Defendant s motion for summary judgment 14 15 in addition to the salary he/she may have earned: 16 (a) The salary corresponding to two (2) months, as indemnity, if discharged within the first five (5) years of service; the salary corresponding to three (3) months if discharged after five years (5) and up to fifteen (15) years of service; the salary corresponding to six (6) months if discharged after fifteen (15) years of service. 17 18 19 20 21 (b) An additional progressive compensation equal to one (1) week for each year of service, if discharged within the first five (5) years of service; to two (2) weeks for each year of service, if discharged after five (5) years and up to fifteen (15) years of service; to three (3) weeks for each year of service if discharged after fifteen (15) years of service. 22 23 24 25 26 27 28 P.R. LAWS ANN. tit. 29, § 185a. 2 The Separation Agreement includes other incentives, such as healthcare contributions and participation in the Employee Assistance Program that are not relevant to this analysis. (See Docket No. 26-148 at ¶¶ 2 & 3.) The Separation Agreement specifically states Plaintiff waives her right to any claims [i]n consideration of the payment described in Paragraph 1. (Id. at ¶ 5.) The Separation Agreement contains similar language in Paragraph 7. The healthcare contributions and participation in the Employee Assistance Program are found in Paragraphs five and seven, respectfully. 1 Civil No. 11-1420 (GAG) 2 13 as to the state law claims. 3 C. 4 Plaintiff pleads supplemental state law claims under Law 80, Law 100 and Law 115. 5 State Law Claims 1. Laws 80 and 100 6 Law 80 provides a remedy for unjust dismissal. See P.R. LAWS ANN. tit. 29, § 185b. A 7 dismissal without just cause is [one] made by mere whim or fancy of the employer or without cause 8 relative to the normal operation of the establishment. P.R. LAWS ANN. tit. 29, § 185b. The statute 9 allows termination for a number of reasons related to the employee s job performance, including an 10 employee s improper and disorderly conduct, negligent attitudes toward her work, and violations of 11 the employer s policies. See id.; Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17, 12 28 (1st Cir. 1998). The employer bears the ultimate burden to prove that it had just cause to 13 terminate the employee. See P.R. LAWS ANN. tit. 29, § 185k; Alvarez-Fonseca, 152 F.3d at 28. 14 Law 100 is the Puerto Rico anti-discrimination statute. See P.R. LAWS ANN. tit. 29, § 146. 15 The analysis under the ADEA and Law 100 is practically the same. See Mojica v. El Conquistador 16 Resort and Golden Door Spa, 714 F. Supp. 2d 241, 262 (D.P.R. 2010). As applied to age 17 discrimination, [Law 100] differs from the ADEA only with respect to how the burden-shifting 18 framework operates. Davila, 498 F.3d at 18 (citing Cardona Jimenez v. Bancomerico de P.R., 174 19 F.3d 36, 42 (1st Cir. 1999)). Under Law 100, a plaintiff has two requirements to establish a prima 20 facie case: (1) she must demonstrate that she was actually or constructively discharged, and; (2) she 21 must allege that the decision was discriminatory. Hoyos v. Telecorp Communications, Inc., 488 22 F.3d 1, 6 (1st Cir. 2007) (citations omitted). 23 For the aforementioned reasons, there are genuine issues of material fact regarding the 24 reasons for Plaintiff s termination. Accordingly, the court DENIES Defendant s motion for 25 summary judgment as to these claims. 26 2. Law 115 27 The final claim before the court is Plaintiff s Law 115 claim. Law 115 forbids employers 28 from discriminating against employees for offering written or verbal testimony before legislative, 14 1 Civil No. 11-1420 (GAG) 2 judicial or administrative forums. P.R. LAWS ANN. tit 29 § 194a. The complaint in this case does 3 not contain any factual allegations that Plaintiff was retaliated against because she participated 4 protected conduct. Plaintiff s memorandum (Docket No. 38) opposing Defendant s motion for 5 summary judgment does not argue that Plaintiff suffered from retaliation. Therefore, Plaintiff s Law 6 115 claim is DISMISSED. 7 IV. Conclusion 8 For the foregoing reasons, the court GRANTS in part and DENIES in part First Bank s 9 motion for summary judgment at Docket No. 26. Remaining before the court are Plaintiff s ADEA, 10 Law 80, Law 100, and Articles 1802 and 1803 claims. 11 12 SO ORDERED 13 In San Juan, Puerto Rico this 29th day of August, 2012. 14 S/Gustavo A. Gelpí 15 GUSTAVO A. GELPà 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

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