Tirado-Gonzalez v. Wendco of Puerto Rico, Inc., No. 3:2014cv01316 - Document 100 (D.P.R. 2018)
Court Description: OPINION AND ORDER granting 55 MOTION for Summary Judgment. Judgment to be entered. Signed by US Magistrate Judge Camille L. Velez-Rive on 1/10/2018. (ari) Modified on 1/11/2018 edit docket entry text (ram).
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Tirado-Gonzalez v. Wendco of Puerto Rico, Inc. Doc. 100 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO J OEL TIRADO GONZALEZ, Plaintiff, v. CIVIL NO. 14-1316 (CVR) WENDCO OF PUERTO RICO, INC., Defendant. OPIN ION AN D ORD ER IN TROD U CTION Plaintiff J oel Tirado Gonzalez (“Plaintiff” or “ Tirado”) filed this case against his form er em ployer Wendco of Puerto Rico (“Defendant” or “Wendco”) alleging discrim ination and a hostile work environm ent based on his disability, in violation of the Am erican with Disabilities Act (“ADA”), 42 U.S.C. §§ 1210 1 et. seq., Puerto Rico Law 44, P.R. Laws Ann. tit. 1, § 50 1, et seq. and retaliation in violation of the ADA and Puerto Rico Law 115, P.R. Laws Ann. tit. 29, § 194, et seq. Before the Court now is Defendant Wendco’s “Motion for Sum m ary J udgm ent” (Docket No. 55); Plaintiff’s Opposition thereto (Docket No. 63); Defendant’s Reply to Plaintiff’s Opposition (Docket No. 76); and Plaintiff’s Sur-Reply (Docket No. 88). For the reasons explained herein below, the Court GRANTS Defendant Wendco’s Motion for Sum m ary J udgm ent. Accordingly, this case is DISMISSED with prejudice. STAN D ARD Sum m ary judgm ent is appropriate when “the pleadings, depositions, answers to interrogatories and adm issions on file, together with the affidavits, if any, show that there Dockets.Justia.com J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 2 is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed.R.Civ.P. 56 (c). Pursuant to the language of the rule, the m oving party bears the two-fold burden of showing that there is “no genuine issue as to any m aterial facts,” and that he is “entitled to judgm ent as a m atter of law.” VegaRodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997). After the m oving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists “a trial worthy issue as to som e m aterial fact.” CortésIrizarry v. Corporación Insular, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deem ed “m aterial” if it potentially could affect the outcom e of the suit. Id. Moreover, there will only be a “genuine” or “trial worthy” issue as to such a “m aterial fact,” “if a reasonable fact-finder, exam ining the evidence and drawing all reasonable inferences helpful to the party resisting sum m ary judgm ent, could resolve the dispute in that party’s favor.” Id. At all tim es during the consideration of a m otion for sum m ary judgm ent, the Court m ust exam ine the entire record “in the light m ost flattering to the non-m ovant and indulge all reasonable inferences in the party’s favor.” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994). The First Circuit Court of Appeals has “em phasized the im portance of local rules sim ilar to Local Rule 56 [of the District of Puerto Rico].” Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 20 0 7); see also Colón v. Infotech Aerospace Servs., Inc., 869 F.Supp.2d 220 , 225-226 (D.P.R. 20 12). Rules such as Local Rule 56 “are designed to function as a m eans of ‘focusing a district court's attention on what is -and what is notgenuinely controverted.’ ” Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 20 0 6)). Local Rule 56 im poses guidelines for both the m ovant and the party opposing sum m ary J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 3 judgm ent. A party m oving for sum m ary judgm ent m ust subm it factual assertions in “a separate, short, and concise statem ent of m aterial facts, set forth in num bered paragraphs.” Loc. Rule 56(b). A party opposing a m otion for sum m ary judgm ent m ust “adm it, deny, or qualify the facts supporting the m otion for sum m ary judgm ent by reference to each num bered paragraph of the m oving party’s statem ent of facts.” Loc. Rule 56 (c). If they so wish, they m ay subm it a separate statem ent of facts which they believe are in controversy. Facts which are properly supported “shall be deem ed adm itted unless properly controverted.” Loc. Rule 56(e); P.R. Am . Ins. Co. v. Rivera-Vázquez, 60 3 F.3d 125, 130 (1st Cir. 20 10 ) and Colón, 869 F.Supp.2d at 226. Due to the im portance of this function to the sum m ary judgm ent process, “litigants ignore [those rules] at their peril.” Hernández, 486 F.3d at 7. At the outset, the Court m ust m ention that Plaintiff’s Opposition to Defendant’s Statem ent of Uncontested Material Facts was procedurally non-com pliant with the Local Rules, insofar as m any of the denials do not oppose the truth of the statem ent offered. A review of Plaintiff’s qualifications of Defendant’s fact statem ents shows that they are either irrelevant to the m atter at hand, offered additional evidence not related to the fact in question and/ or failed to contradict it, or consisted of m ere “speculation, generalities, conclusory assertions, im probable inferences, and, for lack of a better phrase, a lot of ‘hot air.’ ” Dom ínguez v. Eli Lilly and Co., 958 F.Supp. 721, 728 (D.P.R. 1997). Furtherm ore, while it is true that in the sum m ary judgm ent context all reasonable inferences m ust be drawn in favor of the non-m oving party, the District Court is not obliged to accept as true or to deem as a disputed m aterial fact each and every unsupported, subjective, conclusory, or im aginative statem ent m ade to the Court by a J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 4 party. See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 6 (1st Cir. 1994) (a party resisting sum m ary judgm ent m ay not rest on m ere allegations or denials, but m ust identify and allege specific facts showing a genuine issue for trial); Velázquez-Fernández v. NCE Foods, 476 F.3d6, 10 (1st Cir. 20 0 7). In the instant case, m ost of Defendant’s proposed m aterial facts stand uncontested because the evidence proffered by Plaintiff to contradict them is the self-sustaining word of a person, Plaintiff’s m other, who is not a party to this case. It is Plaintiff who m ust prove his case, not his m other. Thus, m uch of the evidence subm itted by Plaintiff in order to rebut the defenses offered by Defendant is not direct evidence by Plaintiff Tirado, but by his m other. This is classic hearsay which is not covered by any of the hearsay exceptions. As a result thereof, the Court deem ed adm itted m ost facts from Defendants’ Statem ent of Uncontested Material Facts. U N CON TESTED FACTS 1. Wendco operates the Wendy’s fast-food restaurant chain in Puerto Rico and currently has over 3,0 0 0 em ployees. The com pany’s line of business includes the sale of prepared foods and drinks. D. Exhibit A, ¶ 4. 2. Plaintiff suffers from intellectual “discapacity” or m ental retardation since birth. P. Exhibit 3, p. 22, l. 22-25; p. 23, l. 1-17. 3. Plaintiff was em ployed by Wendco from Novem ber 4, 20 0 6 to October 8, 20 15, when he resigned. D. Exhibit B, pp. 20 ; D. Exhibit A, ¶¶ 12, 33; D. Exhibit A-4; D. Exhibit A-9. 4. Wendco has a set of hum an resources policies, including a policy against discrim ination, sexual harassm ent, and retaliation. The policy includes a J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 5 procedure to report perceived discrim ination, harassm ent and retaliation. D. Exhibit A, ¶ 5; D. Exhibit A-1, pp. 2-8. 5. Thus, em ployees m ust contact Wendco’s Hum an Resources Departm ent to com plain of any discrim ination, harassm ent and/ or retaliation. D. Exhibit A, ¶ 6; D. Exhibit A-1, pp. 2-8. 6. Wendco’s policy against discrim ination, harassm ent, and retaliation prohibits am ong others, disability discrim ination. D. Exhibit A, ¶ 7; D. Exhibit A-1, pp. 2-8. 7. The Com pany’s policy against discrim ination, sexual harassm ent, and retaliation establishes that the em ployee is responsible for prom ptly inform ing the Hum an Resources Director if he believes that he has been subject to any type of discrim ination, sexual harassm ent or retaliation. D. Exhibit A, ¶ 8; D. Exhibit A-1, pp. 2-8. 8. A copy of the Em ployee Manual is provided to new em ployees. All em ployees are responsible for reading the policies, and ensuring that the policies are com plied with. D. Exhibit A, ¶ 9. 9. During his em ploym ent with Wendco, Plaintiff received a copy of the Em ployee Manual. D. Exhibit A, ¶ 9; D. Exhibit A-2; D. Exhibit C, pp. 45, 63. 10 . Plaintiff’s m other, Carm en González, also received a copy of the Em ployee Manual. D. Exhibit C, pp. 45, l. 5-9. 11. Plaintiff was hired by Wendco thru the Center of Training for Persons with Disabilities (“Centro de Adiestram iento para Personas con Im pedim entos”, J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 6 hereinafter “CAPI”), in the restaurant located in Cidra, Puerto Rico. Wendco’s docum ents list him as a Crew Mem ber, while CAPI’s list him as a m aintenance em ployee. D. Exhibit A ¶ 10 ; D. Exhibit A-3; P. Exhibit 2. 12. CAPI is an organization that provides support and job opportunities to people with disabilities through requests to em ployers from the private and public sector. D. Exhibit A, ¶ 11; D. Exhibit C, pp. 28-29. 13. Prior to working at Wendco, Plaintiff had no prior work experience. D. Exhibit B, p. 15; D. Exhibit C, p. 10 2. 14. On Novem ber 4, 20 0 6, Plaintiff signed an em ploym ent contract which provided for a lim ited working schedule of eight (8) to twenty (20 ) hours per week. In his em ploym ent application, Plaintiff stated that he was available to work any day of the week. D. Exhibit A, ¶ 12; D. Exhibit A-4; D. Exhibit A-5. 15. From 20 0 6 until August 20 , 20 11, Plaintiff reported to Angel Burgos (“Burgos”), and from that date until J une 6, 20 14, he reported to Carm en Avilés (“Avilés”), the General Manager of the Wendy’s located in Cidra. D. Exhibit A, ¶ 14; D. Exhibit A-12; D. Exhibit A-13; D. Exhibit B, pp. 19, 20 . 16. Plaintiff was required to wear a uniform provided by Wendco to perform his functions. Tirado received these uniform s at the beginning of his em ploym ent. D. Exhibit A-2, pp. 49-50 ; D. Exhibit C, pp. 92-93. 17. When Plaintiff later asked his supervisor for new uniform s, Wendco provided them . D. Exhibit C, pp. 92-93. J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 7 18. Plaintiff’s duties included the following: serving soda, sweeping and m opping the restaurant floor, cleaning chairs, tables, glasses, trash bins and parking lot, putting the m ixture in the Frosty m achine, warm ing chili and cheese, serving hot potatoes, and cleaning the grill. D. Exhibit A, ¶ 15; D. Exhibit B, pp. 20 , 21, 24, 25, 26; D. Exhibit C, pp. 68-72. 19. When Plaintiff began working at Wendco through CAPI, he received training in coordination with CAPI pertaining to his duties and responsibilities. D. Exhibit A, ¶ 16, 17; D. Exhibit A-3; D. Exhibit B, pp. 20 , 21, 24, 25, 26; D. Exhibit C, pp. 68-72. 20 . During said training CAPI established phases of work and intervention tim e to m onitor plaintiff’s perform ance. D. Exhibit A-3; D. Exhibit A, ¶ 16-17. 21. Wendco worked closely with CAPI in order to establish the tasks that Plaintiff could perform to achieve the best perform ance and integration of the duties and functions assigned to him . D. Exhibit A, ¶ 16; D. Exhibit A-3. 22. During CAPI’s intervention time, CAPI determ ined that Plaintiff could perform all of the tasks that were assigned to him . D. Exhibit A, ¶ 17; D. Exhibit A-3. 23. Plaintiff did not file an internal com plaint with regard to any of his supervisors, co-workers or any other com pany personnel during his tim e at Wendco. D. Exhibit C, pp. 34-35; D. Exhibit A, ¶ 18. 24. Tirado did not file a written or verbal internal com plaint of disability discrim ination or retaliation during his tim e at Wendco. D. Exhibit C, pp. 34-35, 63; D. Exhibit A, ¶¶ 19 & 20 . J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 8 25. On one occasion, Plaintiff’s m other went to pick Tirado up from work and heard Avilés telling Plaintiff in the garbage area that he had to do things the “easy way or the hard way” and that if not he would have to go to hell. P. Exhibit 1, p. 42, l. 9-23. 26. On another occasion, Avilés ordered Plaintiff to go fry potatoes while he was finishing cleaning the toilets. When Plaintiff told her he was going to wash his hands, she proceeded to punch out his tim e card and to tell him to go to hell. P. Exhibit 1, p. 35, l. 20 -25; p. 36, l. 1-4. 27. The store m anager at that tim e, Burgos, confirm ed to Plaintiff’s m other that this incident had in fact occurred. P. Exhibit 1, p. 36, l. 6-13. 28. Plaintiff’s m other talked with one of the m ain supervisors from Wendco’s central offices to explain the situation that was happening with her son, as instructed by store m anager Burgos. P. Exhibit 1, p. 36, l. 10 -13, 20 -25. 29. As a result of this issue, Plaintiff’s m other visited the Puerto Rico Departm ent of Labor’s Norm s and Salaries Office. P. Exhibit 1, p. 38, l. 2-6. 30 . Wendco Store Manager Burgos told Plaintiff’s m other he would call to com plain on behalf of Tirado. P. Exhibit 1, p. 76, l. 15-24. 31. On J uly 12, 20 12, Nelly Díaz, Interim Regional Adm inistrator for the Bureau of Labor, sent an em ail in which she notified Wendco about an alleged situation regarding Plaintiff’s work environm ent. D. Exhibit A-6; D. Exhibit A, ¶ 21. 32. As a result thereof, Wendco’s Hum an Resources Departm ent com m enced an investigation. D. Exhibit A, ¶ 22; D. Exhibit A-6; D. Exhibit A-7. J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 9 33. As part of the investigation, Wendco contacted CAPI in order to keep it abreast of the situation. D. Exhibit A, ¶ 23; D. Exhibit A-7. 34. On August 22, 20 12, a social worker from CAPI visited the restaurant where Plaintiff was working in and m et with his im m ediate supervisor, Avilés, to discuss am ong other things Plaintiff’s perform ance. D. Exhibit A, ¶ 24; D. Exhibit A-7. 35. At the conclusion of the investigation, Wendco concluded that, based on the evidence collected, Plaintiff’s allegations with regard to his supervisor were unfounded. Plaintiff was not interviewed as part of the investigation. D. Exhibit A, ¶ 25. 36. As part of the Labor Departm ent’s investigation, it was agreed that Wendco would conduct a follow-up investigation. D. Exhibit A, ¶ 26; D. Exhibit A-8. 37. In March 20 13, Wendco conducted a follow-up investigation which consisted of am ong other things, interviewing Plaintiff’s co-workers. Wendco concluded that Plaintiff’s allegations pertaining to his supervisor, Avilés, were unfounded. D. Exhibit A, par. 27; D. Exhibit A-8. 38. During Plaintiff’s em ploym ent with Wendco, the only accom m odation that Plaintiff requested was related to the use of stairs because of his fear of heights. This accom m odation was granted to Plaintiff at all tim es during his em ploym ent. D. Exhibit B, pp. 26, l. 6-19; D. Exhibit C, pp. 32, 33, 73. 39. Besides this request, Plaintiff did not subm it any other request for accom m odation. P. Exhibit C, pp. 32-33. J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 10 40 . At all tim es during his em ploym ent, Plaintiff was provided with the accom m odations in accordance with his alleged disability and CAPI’s recom m endations. D. Exhibit A, ¶ 28. 41. At no point during Plaintiff’s em ploym ent was he dem oted, suspended, or stripped of his duties and/ or responsibilities. D. Exhibit A, ¶ 29. 42. At all tim es during Plaintiff’s em ploym ent he was able to perform all of the duties and responsibilities assigned to him while at Wendco. D. Exhibit C, pp. 69-70 . 43. Plaintiff’s disability did not prevent him from perform ing any of the duties and responsibilities of his position, although som etim es it was confusing for him and took him longer to do them . D. Exhibit C, pp. 69-70 ; P. Exhibit 3, p. 37, l. 3-20 . 44. Pursuant to Wendco’s tim e records, Plaintiff was assigned to work on Fridays and Saturdays prior to August 15, 20 12. D. Exhibit A-11; D. Exhibit A, ¶ 32. 45. Pursuant to the attendance report of J anuary 10 , 20 12, Plaintiff worked from 12:0 0 pm to 4:0 0 pm . D. Exhibit A-11; D. Exhibit A, ¶ 32. 46. Pursuant to the attendance report of April 11, 20 12, Tirado punched out at 3:0 0 pm . D. Exhibit A-11; D. Exhibit A, ¶ 32. 47. On J une 13, 20 15, Plaintiff resigned from his job at Wendco. D. Exhibit A, ¶ 33; D. Exhibit A-9; D. Exhibit B, p. 67. J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 11 48. Dr. Leslie Ann Colón-Freyre (“Dr. Colón-Freyre”) is Plaintiff’s psychiatrist. Dr. Colón-Freyre recom m ended that Plaintiff resign from Wendco, as it was not beneficial for him to continue working there. P. Exhibit 3, p. 19, l. 4-13. 49. On August 15, 20 12, Plaintiff filed an adm inistrative charge before the Puerto Rico Antidiscrim ination Unit (“ADU”), alleging disability discrim ination. The ADU conducted two hearings. D. Exhibit D; D. Exhibit E. 50 . On December 13, 20 13, the ADU notified its determ ination of “No Probable Cause” of em ploym ent discrim ination due to disability. D. Exhibit E. 51. On J anuary 27, 20 14, the Equal Em ploym ent Opportunity Com m ission (“EEOC”) issued a Dism issal and Notice of Right to Sue, stating that it was closing its file. The EEOC further asserted that: “[t]he EEOC has adopted the findings of the state or local fair em ploym ent practices agency that investigated this charge.” D. Exhibit F. 52. On J anuary 30 , 20 14, Plaintiff filed a second adm inistrative charge before the ADU alleging retaliation. 53. On Septem ber 15, 20 14, the EEOC issued a notification closing the case, stating that, “the EEOC is unable to conclude that the inform ation obtained established violations of the statutes”. D. Exhibits G and H. LEGAL AN ALYSIS Plaintiff has brought forth claim s for hostile work environm ent based on his disability and retaliation in violation of the ADA, and several state law claim s based on sim ilar state statutes. The Court analyzes each one in turn. J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 12 A. H o s tile W o rk En viro n m e n t. Plaintiff Tirado’s m ain allegation is that on or about Septem ber 20 11 his supervisor, Avilés, began harassing him because of his disability and he was subjected to a hostile work environm ent in violation of the law. Succinctly put, Plaintiff’s claim s are: (1) Avilés ordered him to cook potatoes; after Plaintiff went to wash his hands, Avilés clocked him out and scream ed at him to leave the store; (2) Avilés had him perform ing duties that he could allegedly not do because of his condition, such as cooking potatoes; (3) he was ordered to perform duties which were not his responsibility; (4) Avilés told him that he would learn “the easy way or the hard way” to perform other tasks; (5) Avilés would constantly check on him during his entire shift; (6) on three occasions, after arriving at work, Avilés told Plaintiff to leave because there was no work for him on that day and then proceeded to m ark him as absent; (7) Avilés yelled at Plaintiff a lot and on one occasion, Plaintiff’s m other allegedly witnessed how Avilés yelled at Plaintiff in front of clients and em ployees asking if he had cleaned everything and that, if he did not, she was going to kick him out and call his house; (8) Plaintiff was supposed to clock out at 3:0 0 pm on one occasion and was still working at 3:20 pm ; (9) other em ployees m ocked him in front of the supervisor and Avilés failed to take any action; (10 ) Plaintiff suffered two dizzy spells at work and his supervisor failed to help him ; and (11) on one occasion Avilés told Plaintiff’s m other that Plaintiff had too m any absences and she threatened to fire him if his attendance did not im prove. (Docket No. 28 at pp. 4-11). In order to prove Plaintiff’s claim s, he m ust first establish that he was (1) disabled, (2) subjected to a hostile environm ent, and (3) the hostility was directed at him because of his disability. Quiles-Quiles v. Henderson, 439 F.3d 1, 5 (1st Cir. 20 0 6). Once Plaintiff J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 13 establishes a prim a facie case, the burden then shifts to Defendant to put forth a legitim ate, non-discrim inatory reason for its adverse em ploym ent decision and to produce credible evidence in support of its non-discrim inatory reason. Freadm an v. Metropolitan Property and Caves. Ins. Co., 484 F.3d 91 (1st Cir. 20 0 7). If Defendant offers such a legitim ate, non-discrim inatory reason, the burden shifts back to Plaintiff to put forth evidence proving that the defendant's reason is “m ere pretext, cloaking discrim inatory anim us.” Freadm an, 484 F.3d at 99. An individual is considered disabled if he (1) has a physical or m ental im pairm ent which substantially lim its one or m ore m ajor life activities, (2) has a record of such im pairm ent, or (3) is regarded as having such an im pairm ent. Id. at 5. In the case at bar, there is no question that Plaintiff Tirado suffered from a m ental disability since birth, and in fact, Defendant so adm itted. See Docket No. 76-1, p. 39, item no. 18. Turning then to the harassm ent claim itself, in order to establish a hostile work environm ent, Plaintiff has to establish that he suffered som e sort of adverse em ploym ent action as a result of his disability, and that the change m aterially affected the conditions of his job. That is, Plaintiff m ust show that his “workplace [was] perm eated with discrim inatory intim idation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of ... [his] em ploym ent and create an abusive working environm ent.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367 (1993). Am ong the factors relevant to this inquiry are the severity of the conduct, its frequency, and whether it unreasonably interfered with the victim ’s work perform ance. Harris, 510 U.S. at 23, 114 S.Ct. 367. J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 14 The First Circuit has explained that “[a]dverse em ploym ent actions include ‘dem otions, disadvantageous transfers or assignm ents, refusals to prom ote, unwarranted negative job evaluations, and toleration of harassm ent by other em ployees.’ ” White v. New Ham pshire Dept. of Corrections, 221 F.3d 254, 262 (1st Cir. 20 0 0 ) (quoting Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998)). “Work places are rarely idyllic retreats, and the m ere fact that an em ployee is displeased by an em ployer’s act or om ission does not elevate that act or om ission to the level of a m aterially adverse em ploym ent action.” Marrero v. Goya of Puerto Rico, 30 4 F.3d 7, 23 (1st Cir. 20 0 2). Although there were som e unsavory incidents in this case and Avilés m ight have used strong language on several occasions, the Court finds the instances fail to com ply with the legal standard. The occasions com plained of sim ply are sporadic, and are sim ply not pervasive enough to alter the conditions of Plaintiff’s em ploym ent. (“[A] m aterially adverse change in the term s and conditions of em ploym ent m ust be m ore disruptive than a m ere inconvenience or an alteration of job responsibilities.”). “Otherwise every trivial personnel action that an irritable ... em ployee did not like would form the basis of a discrim ination suit.” William s v. Bristol– Myers Squibb Co., 85 F.3d 270 , 274 (7th Cir. 1996). The Court reaches this conclusion m indful that, while the line between an unpleasant and a hostile environm ent one m ay som etim es be difficult to discern, “[t]itle VII does not attem pt ‘to purge the workplace of vulgarity’ ”. Del Pilar Salgado v. Abbott Labs., 520 F. Supp. 2d 279, 289 (D.P.R. 20 0 7) (quoting Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 -431 (7th Cir. 1995)); see also Faragher v. City of Boca Raton, 524 U.S. J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 15 775, 788, 118 S. Ct. 2275, 2284 (1998) (Courts m ust filter out “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing); Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 46-47 (1st Cir. 20 0 3) (“[A] supervisor’s unprofessional m anagerial approach ... [is] not the focus of the discrim ination laws”); Gartm an v. Gencorp Inc., 120 F.3d 127 (8th Cir. 1997) (Rude com m ents which are gender neutral do not im ply discrim inatory attitude); and Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 693 (8th Cir. 1997) (holding that evidence of “disrespect and ostracization by ... supervisors” did not establish an adverse em ploym ent action). These are the types of incidents that the Court found in the present case, which are not actionable. Although Plaintiff asks the Court to discredit two investigations launched by Defendant into this m atter, they do form part of the adm inistrative record in this case and thus, the Court is obligated to consider them . The record further contains m ultiple letters written by Plaintiff’s work colleagues stating that that they did not witness any disrespectful behavior by Avilés towards Plaintiff. This is im portant because it serves to establish that, while som e incidents m ight have occurred, they did not occur with the frequency or intensity alleged by Plaintiff in order to be actionable. Furtherm ore, CAPI also conducted its own investigation into the m atter and reached the sam e conclusion. Finally, it is worth noting that the two investigations took place because the Labor Departm ent initially intervened in this m atter, yet the allegations were found wanting. Plaintiff also takes issue with the fact that his contract with CAPI states he would be perform ing only “m aintenance” duties and, although initially confined to that, he was later assigned to work the grill and the potato fryer areas. Yet, Plaintiff admitted in his J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 16 deposition that he could perform all these tasks and in fact, perform ed them well. The fact that perform ing these additional tasks m ight have m ade him uncom fortable and he stated he “didn’t have tim e” som etim es to com plete them does not m ake the actions com plained of harassm ent. Furtherm ore, Defendant’s em ploym ent contract failed to establish that Plaintiff would be lim ited only to m aintenance and to cleaning the dining area. As such, Plaintiff’s assignm ent of duties to other areas was entirely appropriate, provided he could perform the duties he was assigned to, which he dem onstrated and adm itted he could perform . Therefore, on the facts as alleged, the Court cannot conclude that Plaintiff has established a viable hostile work environm ent claim . As such, Defendant’s Motion for Sum m ary J udgm ent as to the hostile work environm ent is GRANTED and the sam e is DISMISSED WITH PREJ UDICE. B. Re talia tio n . To prove his retaliation claim , Plaintiff had to establish that (1) he engaged in protected conduct; (2) he experienced an adverse em ploym ent action; and (3) there was a causal connection between the protected conduct and the adverse em ploym ent action. The adverse em ploym ent action requirem ent m ay be satisfied by showing the creation of a hostile work environm ent or the intensification of a pre-existing hostile environm ent. See Noviello v. Boston, 398 F.3d 76, 89 (1st Cir. 20 0 5); Gregory v. Daly, 243 F.3d 687, 70 1 (2d Cir. 20 0 1). And, in proper circum stances, the causation elem ent m ay be established by evidence that there was a tem poral proxim ity between the behavior in question and the em ployee's com plaint. Noviello, 398 F.3d at 86. However, “the alleged retaliatory action m ust be m aterial, producing a significant, not trivial, harm .” Carm ona- J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 17 Rivera v. Com m onwealth of Puerto Rico, 464 F.3d 14, 19 (1st Cir. 20 0 6). Once Plaintiff satisfies a the prim a facie burden, Defendant m ust produce legitim ate, nondiscriminatory reason for the adverse action. The ultim ate burden then falls on the plaintiff to show that the em ployer’s articulated reason was, in fact, a pretext covering up retaliation. Wright v. Com pUSA, Inc., 352 F.3d 472, 478 (1st Cir.20 0 3). Plaintiff Tirado avers that adverse em ploym ent actions were taken against him after he filed a discrimination charge before the EEOC in August, 20 12, to wit: a reduction in working hours; he was assigned to work on Fridays and Saturdays; and Defendant did not provide him with new uniform s for two years. (Docket No. 28, at p. 10 -11). It is undisputed that the filing of a claim before the EEOC constitutes protected action. Yet, the Court finds Plaintiff is unable to carry his burden on the other two prongs of the legal standard. Regarding the reduction in hours, the personnel attendance report subm itted by Defendant shows otherwise. For instance, the tim e sheet for the week of Decem ber 8, 20 12, shows Plaintiff worked 21 hours. In the sam e fashion, the week of J anuary 7, 20 13 also shows him working 21 hours.1 As a whole, it would seem that Plaintiff averaged between 14-18 working hours a week, which belies his allegation that his working hours were reduced to 8. In fact, Plaintiff even adm its that other em ployees working hours were reduced. See Docket No. 63, p. 10 (“it is clear that while other em ployees suffered a reduction in hours; it was Plaintiff who suffered the biggest reduction”). A claim for retaliation cannot lie if the actions com plained of were instituted across the board and 1 See also Defendant’s Exhibit A-11, where a sam pling was taken of the hours Plaintiff worked on a weekly basis after he filed his EEOC claim : October 27, 20 12: 24 hours; Novem ber 17, 20 12: 22 hours; Decem ber 29, 20 12: 18 hours; J anuary 28, 20 13: 14 hours; February 11, 20 12; 22 hours; March 4, 20 13: 17.50 hours; March 18, 20 13: 22 hours; April 1, 20 13; 12 hours; April 8, 20 13: 16 hours; April 22, 20 13: 17 hours. J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 18 applied to other em ployees as well. Furtherm ore, evidence of discrim inatory or disparate treatm ent in the tim e period between the protected activity and the adverse em ploym ent action can be sufficient to show a causal connection. Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 20 0 3). No such disparity was shown here. Even assum ing that Plaintiff could establish a prim a facie case, Defendant has shown that it had a legitim ate, nondiscrim inatory reason for the reduction in hours. It is uncontested that by the end of 20 12, due to econom ic reasons, the Wendco Operations Managem ent opted to reduce all of the em ployees’ weekly working hours to twenty-five (25) hours or less, except m anagem ent. As a result thereof, store m anagers proceeded to reduce the weekly working hours of all of the restaurant em ployees, with certain exceptions pertaining to special situations or circum stances. Plaintiff, however, was working under a lim ited work schedule contract which provided for an 8 to 20 hour week schedule, and therefore, his hours were not reduced. Pursuant to Com pany records by the end of 20 12, Plaintiff’s weekly working hours averaged between 18-24 hours. Moreover, the relevant tim e records dem onstrate that even before Plaintiff filed his EEOC charge, he had already been assigned to work on Fridays and Saturdays. Finally, regarding the uniform s, Plaintiff’s m other adm itted that when she asked for the new uniform s, Defendant provided them to Plaintiff. Because Defendant provided a valid non-discrim inatory reason for its actions, Plaintiff m ust then bring forth evidence proving that this reason is pretextual. Plainitff has been unable to do so. See Rivera-Colón v. Mills, 646 F. Supp. 2d 224, 237 (D.P.R. 20 0 9), aff'd sub nom . Rivera-Colón v. Mills, 635 F.3d 9 (1st Cir. 20 11) (“A plaintiff can dem onstrate that an em ployer’s stated reasons are pretextual in any num ber of ways, J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 19 including by producing evidence that plaintiff was treated differently from sim ilarly situated em ployees”). In the case at bar, besides stating that the tim ing of the restructuring is “suspicious”, Plaintiff brings forth no evidence for the to conclude that Defendant acted with retaliatory and discrim inatory m indset. Ram írez Rodríguez v. Boehringer Ingelheim Pharm aceuticals, Inc., 425 F.3d 67, 86 (1st Cir. 20 0 5) (upholding dism issal because the plaintiff failed to point to any “com m ents by the em ployer which intim ate a retaliatory m indset” or dem onstrated that he was subjected to differential treatm ent after filing the ADU com plaint). Since Plaintiff cannot show that Wendco’s proffered reason was pretextual and that retaliation was the only factor behind the alleged retaliatory act, his retaliation claim m ust also fail and is hereby DISMISSED WITH PREJ UDICE . C. State law claim s . Law 44 is Puerto Rico’s counterpart to the ADA. See Arce v. ARAMARK Corp., 239 F.Supp.2d 153, 169 (D.P.R. 20 0 3). Like the ADA, Law 44 prohibits discrim ination against individuals with disabilities, and “creates an obligation for any em ployer to provide reasonable accom m odations, and prohibits discrim ination against persons with disabilities.” Rom án Martínez v. Delta Maint. Serv., Inc., 229 F.Supp.2d 79, 85 (D.P.R. 20 0 2) (quoting Ríos J aim án v. Cidra Mfg. Operations of Puerto Rico, Inc., 145 D.P.R. 746, 749 (1998)). Thus, the elem ents of proof necessary for a successful Law 44 claim are essentially the sam e as those for bringing a claim under the ADA. See, e.g., Rom án Martínez, 229 F.Supp.2d at 85; Zayas v. Com m onwealth of Puerto Rico, 378 F.Supp.2d 13, 23– 24 (D.P.R. 20 0 5). J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 20 Having found that Plaintiff’s claim s under the ADA m ust fail, his Law 44 claim s m ust therefore also suffer the sam e fate. Accordingly, Defendant’s Motion for Sum m ary J udgm ent under Puerto Rico Law 44 is hereby GRANTED and the claim under Law 44 is hereby DISMISSED WITH PREJ UDICE. Law 115, on the other hand, protects em ployees who collaborate in investigations or offer testim ony before an adm inistrative, judicial or legislative forum , from adverse actions by their em ployers. P.R. Laws Ann. tit. 29, § 194a. Much like Title VII and the ADA. Law 115 establishes a burden-shifting fram ework. The em ployee m ust prove the violation through direct or circum stantial evidence that he participated in a protected activity and was subsequently discharged, threatened or discrim inated against in his em ploym ent. Once done, the em ployer m ust provide a nondiscrim inatory legitim ate reason for the discharge, wherein the plaintiff m ust prove said reason is pretextual. Id. at § 194a(c). Even assum ing that Plaintiff Tirado has m ade out a prim a facie case, his claim under Law 115 m ust still fail. Because Defendant has put forth a legitim ate, nondiscrim inatory reason in its defense, Plaintiff is once again tripped up by the rem aining requirem ents—that he suffered an adverse em ploym ent action and showing that Defendant’s actions were a pretext. Inasm uch as Plaintiff has failed to m ake this showing, his retaliation claim under Law 115 m ust also fail. Based on the foregoing, Defendant’s Motion for Sum m ary J udgm ent as to the Law 115 claim is GRANTED and the claim under Law 115 is DISMISSED WITH PREJ UDICE. J oel Tirado González, v. Wendco of Puerto Rico, Inc. Opinion and Order Civil 14-1316 (CVR) Page 21 CON CLU SION For all the foregoing reasons, the Court GRANTS Defendant Wendco’s Motion for Sum m ary J udgm ent (Docket No. 55) and DISMISSES WITH PREJ UDICE this case in its entirety. J udgm ent will be entered accordingly. IT IS SO ORDERED. In San J uan, Puerto Rico, on this 10 th day of J anuary, 20 18. S/ CAMILLE L. VELEZ-RIVE CAMILLE L. VELEZ RIVE UNITED STATES MAGISTRATE J UDGE
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