Ortiz-Santiago v. Vaqueria Tres Monjitas, Inc., No. 3:2008cv01097 - Document 58 (D.P.R. 2009)

Court Description: OPINION AND ORDER GRANTING 21 MOTION for Summary Judgment filed by Vaqueria Tres Monjitas, Inc. We DISMISS Plaintiff's ADEA, retaliatory suspension, and failure to pay vacation leave under the CBA claims WITH PREJUDICE. We DISMISS Plaintiff� 39;s Puerto Rico claims WITHOUT PREJUDICE of state court litigation. Judgment to enter accordingly. Signed by Chief Judge Jose A Fuste on 7/10/09.(mrj) (Additional attachment(s) added on 7/10/2009: # 1 Translation) (dv).

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO TILSON ORTIZ-SANTIAGO, Plaintiff, Civil No. 08-1097 (JAF) v. VAQUERà A TRES MONJITAS, INC., Defendant. OPINION AND ORDER 10 11 Plaintiff, Tilson Ortiz-Santiago, brings this action against 12 Defendant, Vaquería Tres Monjitas, Inc., alleging failure to promote 13 in violation of the Age Discrimination in Employment Act ( ADEA ), 29 14 U.S.C. §§ 621-34, and Puerto Rico Law No. 100, of June 30, 1959, 29 15 L.P.R.A. 16 violation of the ADEA, 29 U.S.C. § 623(d); and failure to pay 17 vacation leave in violation of Puerto Rico Law. (Docket Nos. 1, 32.) 18 Defendant moves for summary judgment under Federal Rule of Civil 19 Procedure 56(c) (Docket No. 21), Plaintiff opposes (Docket No. 32), 20 and Defendant replies (Docket No. 46). § 146 (2001) ( Law 100"); retaliatory 21 in I. 22 suspension Factual and Procedural Synopsis 23 Unless otherwise indicated, we derive the following factual and 24 procedural summary from the pleadings and depositions on file. 25 (Docket Nos. 1, 21, 22, 28, 32, 37, 45, 46, 54, 56.) Civil No. 08-1097 (JAF) -2- 1 Defendant is a Puerto Rico corporation that processes and 2 distributes dairy products. Defendant and the Federación Central de 3 Trabajadores ( the Union ) entered into a Collective Bargaining 4 Agreement ( CBA ) valid from June 1, 2005, until May 31, 2008. The 5 terms of the CBA apply to drivers-salesmen and their assistant[s]. 6 (Docket No. 37-2.) 7 Under Article VIII of the CBA, any grievance or complaint 8 relating to management or the interpretation of clauses within [the 9 CBA] which in some way affect employees covered under [the CBA] . . . 10 must be submitted or presented through a specified grievance and 11 complaints 12 grievances or complaints,1 this shall become the exclusive means for 13 resolution of any complaint and/or agreement. (Id.) procedure. (Id.) Excluding any job discrimination 14 Article XII of the CBA also provides that promotions should be 15 made in accordance with seniority criteria and competency at work, 16 in terms of performing [sic] within stated classification at the 17 company s discretion. (Id.) Thus, Defendant is required to weigh 18 both an employee s seniority and qualifications when the employee 19 requests a promotion. 1 Although the certified translation in the record states that job discrimination grievances or complaints shall be deemed as a grievance or complaint for purposes of the CBA (Docket No. 37-2 at 15), this is an inaccurate translation of Docket No. 22-3. We have annexed an accurate translation to this Opinion and Order. We caution Defendant to exercise care in ensuring that submissions before the court are accurate and complete. Civil No. 08-1097 (JAF) -3- 1 Article XVI of the CBA provides for the accumulation of vacation 2 leave. (Id.) Employees that have been working for more than five 3 years accumulate one and five-twelfths of a day per month for those 4 months in which they work for at least one hundred and fifteen hours. 5 (Id.) 6 Plaintiff is a resident of Bayamón who was born in 1938. He has 7 been continuously employed by Defendant since 1990. In 2006, he was 8 a substitute salesman for District 1, which includes delivery routes 9 in San Juan and parts of Carolina. A district is composed of various 10 routes within a determined geographic area. Substitute salesmen 11 assist vendors in their daily routes and must fill in when a vendor 12 is absent. They earn no commission on the milk they sell. Plaintiff 13 either enjoyed vacation leave or received payment in lieu of vacation 14 for the years 2000 to 2004 and the year 2006. There is no information 15 in the record regarding Plaintiff s vacation leave in 2005. 16 On May 2006, the salesman for route 446, Edgardo Ramírez, was 17 suspended from his employment as a result of an incident with a 18 client. Route 446, located within District 2, includes deliveries in 19 Bayamón. District 2 also includes delivery routes in Toa Alta, Toa 20 Baja, and Corozal. On May 15, José Concepción, a substitute salesman 21 in District 2, requested route 446. Concepción had been employed by 22 Defendant since 2001 and was in his late twenties. 23 Under the CBA, Defendant is required to notify vacant positions 24 to any interested contracting unit personnel who so desires to Civil No. 08-1097 (JAF) -4- 1 request same, through the bulletin board. (Id.) However, as had 2 become common practice at the company, the vacancy was not announced 3 on the Defendant s bulletin board. Plaintiff had previously been 4 awarded a position as salesman without the position being properly 5 announced. 6 On June 2, 2006, route 446 was assigned to Concepción. On 7 June 5, Plaintiff verbally requested that his supervisor, Carlos 8 Piñeiro, assign him to route 446. (Docket No. 45-2.) Piñeiro asked 9 Plaintiff to submit the request in writing. Plaintiff requested the 10 position in writing on June 6. 11 On June 7, 2006, Piñeiro sent Plaintiff a letter informing him 12 that the salesman position had already been filled and that Plaintiff 13 would be considered for another route, should one become available 14 in the future. (Docket No. 37-6.) 15 On June 23, 2006, Plaintiff filed a charge before the Equal 16 Employment Opportunity Commission ( EEOC ), claiming that Defendant 17 awarded the position of salesman on route 446 to Concepción because 18 he was younger, in violation of the ADEA. (Docket No. 22-15.) 19 Plaintiff has not attempted to resolve his failure to pay vacation 20 leave claim through the CBA s grievance and complaints procedure. 21 On January 22, 2007, Plaintiff received a letter from José 22 Berríos, the District 1 Route Supervisor, stating that Plaintiff had 23 failed to follow his assigned route four days earlier. (Docket 24 No. 37-11.) On January 23, Plaintiff talked to Berríos and Piñeiro Civil No. 08-1097 (JAF) -5- 1 about the letter. During the conversation, Piñeiro thought he heard 2 Plaintiff 3 Plaintiff off and suspended him for three days. Plaintiff alleges, 4 however, that he was not threatening Berríos and that the suspension 5 was a misunderstanding, 6 complete his statement. Later that same day, Berríos filed criminal 7 charges against Plaintiff over the alleged threat (Docket No. 54-8) 8 and Plaintiff filed a sworn statement before the EEOC, asking to 9 amend his charge against Defendant to include the incident. On 10 January 25, Plaintiff returned to work. He did not lose any salary 11 as a result of the withdrawn one-day suspension. verbally threaten Berríos. Piñeiro immediately cut as Piñeiro did not allow Plaintiff to 12 Prior to and throughout the time period in question, guard Angel 13 Luis, one of Defendant s employees, would say to Plaintiff why don t 14 you leave work and let someone younger work and you have already 15 worked a lot. Plaintiff s supervisor, Berríos, was never present 16 when 17 employees and Plaintiff s supervisor would call Plaintiff a jockey. 18 On January 23, 2008, Plaintiff filed the present complaint in 19 federal district court, alleging that (1) Defendant denied him the 20 position of salesman for route 446 because of his age, in violation 21 of the ADEA and Law 100; (2) Defendant suspended him in retaliation 22 for filing a charge before the EEOC; and (3) Defendant failed to pay 23 him for vacation leave, as required under Puerto Rico law. (Docket 24 No. 1.) On April 20, 2009, Defendant moved for summary judgment. Angel Luis made the comments. Also, some of Defendant s Civil No. 08-1097 (JAF) -6- 1 (Docket No. 21.) Plaintiff opposed on May 12, 2009 (Docket No. 32), 2 and Defendant replied on May 28, 2009 (Docket No. 46). 3 II. 4 Standard For Summary Judgment Under Rule 56(c) 5 We grant a motion for summary judgment if the pleadings, the 6 discovery and disclosure materials on file, and any affidavits show 7 that there is no genuine issue as to any material fact and the movant 8 is entitled to judgment as a matter of law. 9 A factual dispute is genuine if it could be resolved in favor of 10 either party, and material if it potentially affects the outcome 11 of the case. Calero-Cerezo v. U.S. Dep t of Justice, 355 F.3d 6, 19 12 (1st Cir. 2004). Fed. R. Civ. P. 56(c). 13 The movant carries the burden of establishing that there is no 14 genuine issue as to any material fact; however, the burden may be 15 discharged by showing that there is an absence of evidence to support 16 the non-movant s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 17 331 (1986). The burden has two components: (1) an initial burden of 18 production, which shifts to the non-movant if satisfied by the 19 movant; and (2) an ultimate burden of persuasion, which always 20 remains on the movant. Id. at 331. 21 In evaluating a motion for summary judgment, we view the record 22 in the light most favorable to the non-movant. Adickes v. S.H. Kress 23 & Co., 398 U.S. 144, 157 (1970). However, the non-movant may not 24 rely merely on allegations or denials in its own pleading; rather, Civil No. 08-1097 (JAF) -7- 1 its response must . . . set out specific facts showing a genuine 2 issue for trial. Fed. R. Civ. P. 56(e)(2). 3 III. 4 Analysis 5 We address in turn Defendant s motion for summary judgment on 6 Plaintiff s (1) ADEA and Law 100 claims; (2) retaliatory suspension 7 claim; and (3) failure to pay vacation leave claim. 8 A. ADEA and Law No. 100 9 Plaintiff asserts a disparate treatment claim under the ADEA and 10 a claim under Law 100, Puerto Rico s age discrimination statute. 11 (Docket Nos. 1, 32.) Defendant argues that we must grant summary 12 judgment on Plaintiff s ADEA claim because Plaintiff has failed to 13 establish a prima-facie case of age discrimination or demonstrate 14 that Defendant s neutral explanation for not promoting Plaintiff was 15 a pretext for age discrimination. (Docket No. 21.) Defendant further 16 argues that we must dismiss the Law 100 claims for the same reasons 17 as the ADEA claims. (Id.) 18 1. ADEA 19 The ADEA provides that it is unlawful for an employer to fail 20 or refuse to hire or to discharge any individual . . . because of 21 such individual s age. 29 U.S.C. § 623(a)(1). Plaintiffs may use 22 direct or indirect evidence to prove a disparate treatment theory. Civil No. 08-1097 (JAF) 1 -8- a. Direct Evidence 2 Plaintiff asserts that when he verbally requested that Piñeiro 3 assign him to route 466, Piñeiro responded that he would be denied 4 the position [of route 466 salesman] because he was too old. 5 (Docket No. 28-8). He argues that this constitutes direct evidence 6 of discrimination. (Docket No. 32.) Defendant counters that we should 7 discount Plaintiff s direct evidence because it is at odds with 8 Plaintiff s other testimony. (Docket No. 46.) 9 Where the plaintiff presents direct evidence of discrimination 10 in an employment discrimination case alleging disparate treatment, 11 the burden shifts to the employer, who must prove that it would have 12 reached the same decision without taking into account the protected 13 characteristic. See Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 14 86, 95-96 (1st Cir. 1996) (citing Smith v. F.W. Morse & Co., 76 F.3d 15 413, 421 (1st Cir. 1996)). Consequently, McDonnell Douglas Corp. v. 16 Green, 411 U.S. 792 (1973), is inapplicable. Trans World Airlines, 17 Inc. v. Thurston, 469 U.S. 111, 121 (1985) (citing Int l Bhd. of 18 Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977)). 19 Direct evidence is evidence which, in and of itself, shows a 20 discriminatory animus. Jackson v. Harvard Univ., 900 F.2d 464, 467 21 (1st Cir. 1990). An admission by the employer that it explicitly 22 considered age in making the employment decision is direct evidence 23 of age discrimination. Meléndez v. Autogermana, Inc., 606 F.Supp.2d 24 189, 195 (D.P.R. 2009) (citing Smith, 76 F.3d at 421). Civil No. 08-1097 (JAF) -9- 1 [A] party cannot create a genuine issue of fact sufficient to 2 survive summary judgment simply by contradicting his or her own 3 previous sworn statement . . . without explaining the contradiction 4 or attempting to resolve the disparity. Cleveland v. Policy Mgmt. 5 Sys. Corp., 526 U.S. 795, 806-07 (1999) (collecting cases); see 6 Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 7 1994) (citations omitted). In García v. Bristol Myers Squibb Co., for 8 example, the First Circuit discredited allegations made by the 9 plaintiff for the first time in an unsworn affidavit, as she had 10 stated during her prior deposition that she had declared every 11 incident of disparate treatment she was aware of. 535 F.3d 23, 33 n.5 12 (1st Cir. 2008). 13 Defendant argues that we should disregard Plaintiff s direct 14 evidence of discrimination, that Piñeiro told Plaintiff that he 15 would be denied the position [of route 466 salesman] because he was 16 too old (Docket No. 32), because it is at odds with Plaintiff s 17 other testimony. (Docket No. 46.) Plaintiff first mentioned Piñeiro s 18 comment on September 4, 2008, in the Answer to Interrogatory and 19 subsequently included it in his unsworn affidavit of May 11, 2009. 20 (Docket 21 Defendant s motion for summary judgment. (Docket No. 28-8.) The 22 statement was notably absent from Plaintiff s allegations in the 23 charge of discrimination before the EEOC (Docket No. 22-15), the 24 complaint No. 46.) (Docket The No. unsworn 1), and affidavit the came initial in response disclosures to (Docket Civil No. 08-1097 (JAF) -10- 1 No. 46). Also, when Plaintiff was asked during his deposition about 2 the meeting with Piñeiro, he once again failed to mention the 3 statement, despite being asked repeatedly whether he was describing 4 the conversation in full. (Id.) 5 Given the inconsistencies between the unsworn affidavit and the 6 deposition, and Plaintiff s failure to provide 7 explanation for the disparity, we do not credit the statement made 8 in Plaintiff s unsworn affidavit. See Policy Mgmt. Sys. Corp, 526 9 U.S. at 806-07; García, 535 F.3d at 33 n.5. Therefore, there is no 10 adequate direct evidence of discrimination in this case. 11 an b. Circumstantial Evidence 12 Plaintiff also presents circumstantial evidence to prove his 13 claim of age-based discrimination. (Docket Nos. 1, 28, 32, 54.) 14 Defendant argues that this evidence does not create a prima-facie 15 case and does not rebut Defendant s stated non-discriminatory motive. 16 (Docket Nos. 21, 22, 37, 45, 46, 56.) 17 When the Plaintiff lacks direct evidence of age discrimination, 18 we follow the three-step process outlined in McDonnell Douglas, 411 19 U.S. 792. First, the plaintiff must establish a prima-facie case of 20 age discrimination. Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 21 48 (1st Cir. 2008). To establish a prima-facie case of disparate 22 treatment under the ADEA in a failure-to-promote claim, a plaintiff 23 must show that (1) he was at least forty years old at the time of the 24 adverse employment action; (2) he was qualified for the position; Civil No. 08-1097 (JAF) -11- 1 (3) he was denied the promotion; and (4) the position was filled by 2 someone younger with similar qualifications. Arroyo-Audifred v. 3 Verizon Wireless, Inc., 527 F.3d 215, 219 (1st Cir. 2008) (citing 4 Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)). 5 Next, the burden shifts to the defendant to present a 6 legitimate, nondiscriminatory reason for the employment decision. 7 Id. 8 on its face, would justify a conclusion that the plaintiff was [not 9 promoted] for a nondiscriminatory motive. Torrech-Hernández, 519 10 F.3d at 48 (quoting Dávila v. Corporación de P.R. Para La Difusión 11 Pública, 498 F.3d 9, 16 (1st Cir. 2007)). The defendant need do no more than articulate a reason which, 12 The burden then shifts back to the plaintiff to demonstrate by 13 a preponderance of the evidence that the defendant s asserted reason 14 is a pretext for age discrimination. Id. This burden may be satisfied 15 through 16 derogatory comments, differential treatment in the workplace, and the 17 use of a younger replacement. Mesnick, 950 F.2d at 824 (citing 18 cases). Inexplicable deviations from established company procedures 19 or practices can also be considered evidence of pretext. See Brennan 20 v. GTE Gov t Sys. Corp., 150 F.3d 21, 29 (1st Cir. 1998) (citing 21 Lattimore v. Polaroid Corp., 99 F.3d 456, 466-67 (1st Cir. 1996)) 22 (finding that a one-time 23 procedure is directly relevant to the pretext determination). 24 However, statements by nondecisionmakers normally are insufficient, either direct or circumstantial evidence, including deviation from a company s retention Civil No. 08-1097 (JAF) alone, to -12- 1 standing establish either pretext or the requisite 2 discriminatory animus. González v. El Día, Inc., 304 F.3d 63, 69 3 (1st Cir. 2002). 4 Here, the evidence shows that Plaintiff is within the protected 5 class, as he was over forty years old when he requested route 446, 6 and Plaintiff was not promoted to the position of salesman. He was 7 at least arguably qualified for the position he was seeking, as he 8 was from the Bayamón area and was already working as a substitute 9 salesman for Defendant. Furthermore, the position was filled by 10 Concepción, a younger substitute salesman. Therefore, we assume that 11 Plaintiff satisfies the prima-facie case requirement. 12 Defendant argues that Plaintiff has failed to rebut its 13 legitimate, nondiscriminatory explanation for awarding Concepción the 14 route at issue. (Docket Nos. 45, 46.) Defendant asserts that it 15 awarded the route to Concepción because he was already familiar with 16 the route and it was essential to get a driver that could master the 17 route quickly. (Docket Nos. 21, 22, 37, 45.) Defendant also claims 18 that the position was filled by the time that Plaintiff applied for 19 it. (Docket Nos. 21, 22, 37, 45.) Because these reasons, on their 20 faces, would justify a conclusion that Plaintiff was denied the 21 position 22 Plaintiff to prove that this reason was pretextual. See Torrech- 23 Hernández, 519 F.3d at 48. for a nondiscriminatory reason, the burden shifts to Civil No. 08-1097 (JAF) -13- 1 Plaintiff argues that Defendant s explanation is pretextual for 2 several reasons. (Docket Nos. 1, 32.) First, Plaintiff asserts that 3 he was sufficiently familiar with the route because he is a Bayamón 4 resident and could have quickly learned the route. (Docket Nos. 28-1, 5 32.) Plaintiff concedes that he did not know route 446 at the time 6 the position of salesman became vacant, but he states that it would 7 have taken him around eight working days to learn it. (Docket 8 No. 32.) Given Defendant s need to fill the position of salesman for 9 route 446 quickly, it is reasonable for Defendant to prefer 10 Concepción, especially given that Concepción needed no time to learn 11 the route. 12 Second, Plaintiff argues that he should have been given the 13 position of route 446 salesman solely because he had more seniority 14 than 15 Nevertheless, Plaintiff admits in his deposition that seniority by 16 itself does not mean that an employee is better qualified. (Docket 17 No. 18 preferential 19 (Docket No. 28-1.) Consequently, Plaintiff s argument that he should 20 have 21 seniority is not sufficiently supported by the record. Concepción 56-4.) been He and also right chosen was, therefore, concedes over to a fill that vacant the the better CBA position vacant qualified. does not based on position solely (Id.) provide a seniority. based on 22 Third, Plaintiff contends that Defendant never announced the 23 position of salesman for route 446 and that this is evidence of Civil No. 08-1097 (JAF) -14- 1 discrimination. (Docket No. 32.) Plaintiff admits, however, that 2 Defendant had in the past failed to publish vacant positions on the 3 company s bulletin board (Docket No. 37-5) and that Plaintiff was 4 previously awarded a position as salesman without it being published 5 (Docket No. 37-7). Thus, although Defendant violated the CBA by 6 failing to post the vacancies (Docket No. 37-2), this failure is not 7 a strong indicator of pretext because the practice of not posting had 8 been carried out for some time before the events in question. See 9 Brennan, 150 F.3d at 29 (citations omitted). 10 Although Plaintiff s evidence, that he was sufficiently familiar 11 with route 446, had more seniority than Concepción, and the position 12 was never announced, might arguably constitute some evidence that 13 Defendant s reasons were pretextual, Plaintiff has failed to prove 14 that the Defendant was motivated by a discriminatory animus. See 15 Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 16 2007) (citing Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091-92 17 (1st Cir. 1995)). Plaintiff argues that several workplace remarks 18 demonstrate an age-based animus. The record, however, does not 19 support 20 Piñeiro s remark, that Plaintiff would be denied the position [of 21 route 466 salesman] because he was too old, is indicative of 22 Defendant s discriminatory animus. (Docket No. 32.) As discussed 23 above, we do not credit this statement. All other remarks were either 24 said by employees that did not have decision-making power over this contention. For example, Plaintiff asserts that Civil No. 08-1097 (JAF) -15- 1 Plaintiff or are ambiguous as to whether they are discriminatory in 2 nature.2 (Docket No. 28.) First, Plaintiff admits that the comments 3 why don t you leave work and let someone younger work and you have 4 already worked a lot were made by guard Angel Luis, who has no 5 supervisory 6 Plaintiff s supervisor, Berríos, was never present when the comments 7 were made. (Docket Nos. 21, 28-1, 37-7.) Therefore, these comments 8 do not establish pretext. See González, 304 F.3d at 69. Second, 9 Plaintiff claims that his supervisor and other employees called him 10 a jockey to his supervisor. (Docket No. 1.) According to Plaintiff, 11 this 12 contractor. (Docket Nos. 21, 22, 28-1.) It is unclear how this 13 alleged remark demonstrates age-based animus. means power that over they Plaintiff. were (Docket referring to Nos. him as 21, an 22, 28-1.) independent 14 As there is no evidence that the reasons offered by Defendant 15 are a pretext for age-based discrimination, Plaintiff has not shown 16 the existence of an issue of fact as to whether, but for age bias, 17 he would have been promoted. 2 In his charge before the EEOC (Docket No. 22-15) and Complaint, (Docket No. 1), Plaintiff claims that supervisor Angel Otero asked him Is this your last haircut? Although Plaintiff testified that the remark was made on June 6, 2006 (Docket No. 37-7), the record clearly shows that Otero died on June 22, 1999 (Docket Nos. 22-2, 37-12). Therefore, we do not credit these remarks. Civil No. 08-1097 (JAF) -16- 1 2. 2 Because we dismiss Plaintiff s ADEA claim, we dismiss his Law 3 100 claim. See Dávila, 498 F.3d at 18 (stating that [o]n the merits, 4 age discrimination claims asserted under the ADEA and under Law 100 5 are coterminous ) (citing González, 304 F.3d at 73). 6 Law No. 100 Consequently, we grant Defendant s motion for summary judgment 7 with respect to the ADEA claim and the Law 100 claim. 8 B. 9 ADEA Retaliation Plaintiff claims that Defendant retaliated against him by 10 suspending him and filing charges because he filed a charge before 11 the EEOC. (Docket Nos. 1, 32.) Defendant counters that summary 12 judgment should be granted because the suspension was caused by a 13 misunderstanding, it was withdrawn, and Plaintiff never lost any 14 income as a result. (Docket No. 21.) 15 The ADEA provides that it is unlawful for an employer to 16 discriminate against 17 unlawful by the ADEA, or for making a charge, testifying, assisting, 18 or participating in proceedings under the ADEA. 29 U.S.C. § 623(d). 19 When there is only circumstantial evidence of discriminatory we an again employee apply the for opposing a burden-shifting practice made 20 retaliation, framework in 21 McDonnell Douglas. Mesnick, 950 F.2d at 827. A plaintiff must make 22 a prima facie showing of retaliation by presenting evidence that 23 (1) he engaged in protected conduct, (2) he was thereafter subjected Civil No. 08-1097 (JAF) -17- 1 to an adverse employment action, and (3) a causal connection existed 2 between the protected conduct and the adverse action. Che v. Mass. 3 Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003) (citing Hernández- 4 Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 5 1998)). The burden then shifts to the defendant, who must articulate 6 a legitimate, non-retaliatory reason for the adverse employment 7 decision. Id. at 39 (citing Bishop v. Bell Atl. Corp., 299 F.3d 53, 8 58 (1st Cir. 2002)). Finally, if such a reason is offered, the burden 9 shifts back to the plaintiff, who has to show that the employer s 10 retaliatory action was the result of discriminatory animus. Id. 11 (citing Feliciano de la Cruz v. El Conquistador Resort & Country 12 Club, 218 F.3d 1, 6 (1st Cir. 2000)). 13 A plaintiff s failure to prevail in his own ADEA discrimination 14 suit will not preclude a retaliation cause of action under the ADEA. 15 Machin v. Leo Burnett, Inc., 376 F.Supp.2d 188, 206 (D.P.R. 2005) 16 (citing Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 17 1997)). It is enough that the plaintiff had a reasonable, good-faith 18 belief that a violation occurred; that he acted on it; that the 19 employer knew of the plaintiff s conduct; and that the employer 20 lashed out in consequence of it. Mesnick, 950 F.2d at 827. 21 Here, Plaintiff s filing of a charge before the EEOC constituted 22 protected conduct. See 29 U.S.C. § 623(d). However, even assuming 23 that the withdrawn and paid suspension was an adverse employment 24 action, Plaintiff has failed to demonstrate that there was a causal Civil No. 08-1097 (JAF) -18- 1 connection between the filing of the charge before the EEOC and the 2 suspension and filing of criminal charges. See Che, 342 F.3d at 38. 3 Plaintiff s Complaint alleges that the letter that Berríos sent 4 Plaintiff on January 22, 2007 (Docket No. 37-11) caused Plaintiff s 5 suspension. (Docket No. 1.) However, nothing in the letter relates 6 to Plaintiff s EEOC charge. Likewise, Plaintiff has failed to provide 7 any evidence that his conversation with Piñeiro and Berríos a day 8 later bore any relationship to his EEOC charge. 9 As there is no evidence that the withdrawn and paid suspension 10 was motivated by a discriminatory animus, Plaintiff has not shown 11 that a causal connection existed between the filing of his EEOC 12 charge and the adverse action. See Che, 342 F.3d at 38 (citing 13 Hernández-Torres, 158 F.3d at 47). 14 Consequently, we grant Defendant s motion for summary judgment 15 with respect to the ADEA retaliation claim. 16 C. Failure to Pay Vacation Leave 17 Plaintiff asserts a wage claim under Puerto Rico law. (Docket 18 Nos. 1, 32.) Defendant counters that we must grant summary judgment 19 because Plaintiff has failed to exhaust the grievance procedure in 20 the CBA. (Docket Nos. 21, 46.) We address in turn Plaintiff s wage 21 claim as premised on (1) a right based on the CBA; and (2) a right 22 based on Puerto Rico law. Civil No. 08-1097 (JAF) -19- 1 1. 2 Defendant argues that Plaintiff failed to exhaust the remedies 3 Right Based on the CBA available under the CBA.3 4 Section 301 of the Labor Management Relations Act provides that 5 suits for violation of contracts between an employer and a union may 6 be brought in any district court that has jurisdiction over the 7 parties. 29 U.S.C. § 185(a). Thus, if the cause of action involves 8 a right or duty that exists under a CBA, the state claim may be 9 preempted. Fant v. New Eng. Power Serv. Co., 239 F.3d 8, 14 (1st Cir. 10 2001). 11 When a collective bargaining contract provides grievance and 12 arbitration procedures, an employee must ordinarily exhaust these 13 procedures before bringing his claim to court. Local 1575 Int l 14 Longshoremen s Ass n AFL-CIO v. Horizon Lines of Puerto Rico, Inc., 15 553 F.Supp.2d 101, 105 (D.P.R. 2008) (collecting cases). This rule 16 is only inapplicable when the employer s conduct amounted to a 17 repudiation of the contract s remedial procedures, when the union 18 wrongfully refused to process the grievance, or when following the 19 contractual procedures would be futile. Id. at 105-06 (citing Vaca 20 v. Sipes, 386 U.S. 171, 185 (1967); Glover v. St. Louis-San Francisco 21 Ry. Co., 393 U.S. 324, 330 (1969)). Moreover, there is a presumption 3 Defendant assumes that Plaintiff made a failure to announce a vacancy claim. However, we do not interpret Plaintiff s complaint as stating such a claim. (See Docket No. 1.) To the extent that it does, the analysis under this section would be equally applicable and the failure to announce a vacancy claim would be dismissed. Civil No. 08-1097 (JAF) -20- 1 that disputes should be resolved through arbitration, particularly 2 where the arbitration clause is broad. See AT&T Techs., Inc. v. 3 Commc ns Workers of Am., 475 U.S. 643, 650 (1986). 4 To the extent that Plaintiff s unpaid vacation leave claim is 5 based on rights created by the CBA, that claim is preempted. See 6 Fant, 239 F.3d at 14. The CBA at issue in this case provides that all 7 claims and grievances related to the administration or interpretation 8 of the CBA, with the exception of discrimination claims, must be 9 brought in accordance with the procedure established by the document. 10 (Docket No. 37-2.) As the CBA has sections corresponding to the 11 calculation of vacation leave (id.), the claim is covered by the CBA. 12 Plaintiff has failed to explain why the dispute should not be 13 governed by the procedure established in the CBA, see AT&T Techs., 14 475 U.S. at 650, or produce evidence showing that he exhausted the 15 grievance and arbitration procedure. Also, none of the exceptions 16 mentioned in Local 1575 are present in this case. See 553 F.Supp.2d 17 at 105-06. 18 Consequently, because Plaintiff failed to exhaust the grievance 19 procedure established in the CBA, we grant Defendant s motion for 20 summary judgment with respect to this claim. See Local 1575, 553 21 F.Supp.2d at 105. Civil No. 08-1097 (JAF) -21- 1 2. Right Based on Puerto Rico Law 2 Plaintiff contends that Defendant has denied him his right to 3 paid vacations, as established by Puerto Rico law. (Docket Nos. 1, 4 32.) Defendant does not address the claim under Puerto Rico law. 5 In some cases, when a party alleges only a violation of a state 6 law without asserting a breach of the CBA, the action need not be 7 preempted by federal law because the rights created by the state 8 law are independent, non-negotiable and not inextricably intertwined 9 with the collective bargaining agreement. Fant, 239 F.3d at 15 n.7 10 (internal quotation omitted); see, e.g., Welch v. Gen l Motors Corp., 11 922 F.2d 287, 290 (6th Cir. 1990) (holding that employee could assert 12 independent state rights established by the Michigan Handicapper s 13 Civil 14 discrimination). Rights Act, even though the CBA provided a remedy for 15 Under Puerto Rico Law No. 180, of July 27, 1998, employees 16 accrue vacation leave at a rate of one and one quarter (1 1/4) 17 days each month, as long as they have worked at least one hundred 18 and fifteen hours a month. 29 L.P.R.A. § 250(d)(a) (2001). To the 19 extent that Plaintiff was asserting an unpaid vacation leave claim 20 under Puerto Rico Law No. 180, because we grant summary judgment for 21 Defendant on all federal claims, we decline to exercise supplemental 22 jurisdiction over this associated Commonwealth claim. See Rivera v. 23 Murphy, 979 F.2d 259, 264 (1st Cir. 1992) (quoting Cullen v. Civil No. 08-1097 (JAF) -22- 1 Mattaliano, 690 F. Supp. 93, 99 (D. Mass. 1988)); see also 28 U.S.C. 2 § 1367(c)(3). 3 IV. 4 Conclusion 5 In accordance with the foregoing, we hereby GRANT Defendant s 6 motion for summary judgment, (Docket No. 21), and DISMISS Plaintiff s 7 ADEA, retaliatory suspension, and failure to pay vacation leave under 8 the CBA claims WITH PREJUDICE. We DISMISS Plaintiff s Puerto Rico 9 claims WITHOUT PREJUDICE of state court litigation. 10 IT IS SO ORDERED. 11 San Juan, Puerto Rico, this 10th day of July, 2009. 12 13 14 s/José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge

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