Villanueva-Batista v. Doral Financial, et al, No. 08-1214 (1st Cir. 2009)

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Not for Publication in West s Federal Reporter United States Court of Appeals For the First Circuit ___________________ No. 08-1214 LUZ VILLANUEVA-BATISTA, Plaintiff, Appellant, v. DORAL FINANCIAL CORPORATION; FEDERAL INSURANCE COMPANY, Defendants, Appellees. ___________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge] ___________________ Before Torruella, Baldock, * and Howard, Circuit Judges. ___________________ Arturo Luciano Delgado, on brief for appellant. ** Pedro Manzano Yates, D i a n a M . E s p í n o s a N ú ñ e z a n d Fiddler González & Rodríguez, PSC on brief for appellee Doral Financial Corporation. December 23, 2009 * ** Of the Tenth Circuit, sitting by designation. Attorney Delgado failed to appear at oral argument, so this case was submitted on the briefs. He explains in his show cause letter that he was medically unable to attend oral argument. BALDOCK, Circuit Judge. Plaintiff Luz Villanueva Batista appeals from the district court s grant of summary judgment Federal for Defendants Co. Ins. Doral claims on her Financial for Corporation unjust and dismissal and retaliatory termination under 29 L.P.R.A. § 185a (Law No. 80) and 29 L.P.R.A § 194a (Law No. 115). exercised § 1332. diversity jurisdiction The district court pursuant to 28 U.S.C. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We review de novo a district court s grant of summary judgment and draw all reasonable inferences in favor of the nonmoving party. Sonoran Scanners, Inc. v. Inc., 585 F.3d 535, 539-40 (1st Cir. 2009). Perkinelmer, The parties are familiar with the facts and procedural history of this case, and we do not repeat them here except where necessary. Plaintiff first argues the district court erred in concluding she failed to demonstrate Defendant s reason for terminating her was a mere pretext. once an employer non-discriminatory has reason Under Law No. 115(c), provided for firing a an legitimate, employee, the employee bears the ultimate burden of "demonstrat[ing] that the alleged reason provided pretext for the discharge." by a mere 29 L.P.R.A. § 194a(c). See - 2 - the employer was Rivera Rodríguez v. Sears Roebuck de Puerto Rico, 432 F.3d 379, 383 n.2 (1st Cir. 2005). Plaintiff began working for Defendant on May 6, 1999. From February 6, 2001 until she was terminated on March 29, 2004, Plaintiff received several reprimands and complaints about her performance and interaction with other employees. She also filed complaints of her own concerning the behavior of other employees. Plaintiff s supervisors met with her numerous times to discuss both Plaintiff s complaints and those filed company against rules. her, as well Additionally, as her infractions Plaintiff without pay from August 14 to 20, 2003. was of suspended On August 22, 2003, she filed a lawsuit against Defendant in Puerto Rico local court to recover unpaid bonuses and commissions. received the summons on August 27, 2003. Defendant Additional disciplinary problems arose, and Plaintiff s supervisors met with her again. Several written communications informed Plaintiff that she would be terminated if her behavior did not improve. the Puerto Plaintiff began giving deposition testimony in Rico lawsuit on January 26, 2004. Further problems arose with Plaintiff s behavior at work. Though her supervisors attempted to meet with her to discuss these problems, Plaintiff refused to discuss anything. 29, 2004, Plaintiff s supervisors - 3 - notified her On March that they were terminating her employment with Defendant because of her history of violating company regulations and her refusal to cooperate in an internal investigation. We agree with the district court that Defendant presented ample evidence to show Plaintiff s termination was the culmination of an unsuccessful disciplinary process. Plaintiff s only evidence of pretext is an October 20, 2003 email from Human Resources to one of Plaintiff s supervisors advising him to remember that the actions with [Plaintiff] must be Taken reviewed since in the light statement is, at there most best, is an favorable ambiguous in ongoing to complaint. Plaintiff, many ways: this It is unclear whether complaint refers to Plaintiff s lawsuit or her internal means; and complaints; it is it unclear is unclear whether the what reviewed writer had any retaliatory intent or was merely reminding the recipient to document interactions with Plaintiff. Therefore, this email is insufficient to show that the Defendant s reasons are a mere pretext. See Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 452 (1st Cir. 2009) (explaining in an ADEA case that a plaintiff must elucidate specific facts demonstrating the employer s justification intended to hide an actual unlawful motive). - 4 - is a sham Plaintiff s second contention seems to be that the district court erred by concluding her retaliation claim was based on an internal complaint rather than her deposition testimony beginning January 26, 2004. district court s district court protected decision first activity discharged her, burden provide to termination. in this explained by then a manner. that filing a concluded We do not read the Instead, Plaintiff lawsuit legitimate reason engaged and Defendant the Defendant satisfied for in its Plaintiff s Plaintiff, however, did not demonstrate that Defendant s reason was a mere pretext, so the district court concluded her retaliation claim failed. Next, the district court reasoned that even if Defendant s actions amounted to retaliation against Plaintiff for her November 2002 internal complaint about unpaid bonuses and commissions, those actions began before Plaintiff filed her lawsuit or gave her deposition. expression Moreover, Law No. 115 protects only "testimony, or information . . . before a legislative, administrative, or judicial forum," not internal complaints. 29 L.P.R.A found that § 194a. Because Plaintiff failed additionally, could not the to base district court demonstrate her properly pretext retaliation and, claim on internal complaints, the court did not err when it granted summary judgment for Defendant. - 5 - Upon careful consideration of the briefs, the record, and the applicable law, in light of the applicable standard of review, we discern no reversible error presented in this case. AFFIRMED. - 6 -

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