Natal-Perez et al v. Oriental Bank & Trust et al, No. 3:2016cv01543 - Document 82 (D.P.R. 2018)
Court Description: OPINION AND ORDER: Granting in part and Denying in part 48 motion for summary judgment; Granting 66 Motion to Strike. Signed by Judge Gustavo A. Gelpi on 1/30/2018. (MET)
Download PDF
<![CDATA[
Natal-Perez et al v. Oriental Bank & Trust et al IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 5 6 7 Doc. 82 JUAN NATAL PÉREZ, et al., Plaintiff, v. ORIENTAL BANK & TRUST, et al., CASE NO. 16-1543 (GAG) Defendants. 8 9 OPINION AND ORDER 10 Plaintiff Juan Natal Pérez, his spouse, and their conjugal partnership sued Defendant 11 Oriental Bank & Trust for discrimination, failure to provide reasonable accommodation, and 12 retaliation under the American with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and 13 discrimination and retaliation under the Age Discrimination in Employment Act (ADEA), 29 14 U.S.C. §§ 621 et seq. Natal also invokes the Court’s supplemental jurisdiction to bring claims 15 under Puerto Rico Law 44 of July 2, 1985, P.R. LAWS ANN. tit. 1, §§ 501 et seq., Law 100 of June 16 30, 1959, P.R. LAWS ANN. tit. 29, §§ 146 et seq., Law 115 of December 20, 1991, P.R. LAWS ANN. 17 tit. 29, § 194a, and Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31, 18 §§ 5141-42. Pending before the Court is Oriental’s motion for summary judgment. (Docket No. 19 49). After disposing of preliminary matters involving Local Rule 56 and Oriental’s Motion to 20 Strike at Docket No. 66, the Court GRANTS in part and DENIES in part Oriental’s motion for 21 summary judgment. All of Natal’s claims, except the ADA and ADEA retaliation claims and their 22 local law counterparts, are DISMISSED with prejudice. 23 24 Dockets.Justia.com Civil No. 16-1543 (GAG) 1 I. Local Rule 56 2 The issue is whether Natal properly denied and qualified Oriental’s statement of uncontested 3 material facts when he included additional facts in his denials and qualifications. Although 4 Oriental did not raise the issue, the Court addresses it sua sponte. 5 At the summary judgment stage, parties must follow Local Rule 56. Section (c) instructs that 6 “[a] party opposing a motion for summary judgment shall submit with its opposition a separate, 7 short, and concise statement of material facts.” L. CV. R. 56(c). This opposing statement “shall 8 admit, deny or qualify the facts supporting the motion for summary judgment by reference to each 9 numbered paragraph of the moving party’s statement of material facts.” Id. Each denial and 10 qualification must be supported by a record citation. Id. 11 In addition to allowing an opposing party to admit, deny, or qualify the moving party’s facts, 12 Local Rule 56(c) allows an opposing party to submit additional facts “in a separate section.” Id. 13 (emphasis added). As the First Circuit has stated, “[t]he plain language of the rule specifically 14 requires that additional facts be put forward in a ‘separate section.’” Carreras v. Sajo, Garcia & 15 Partners, 596 F.3d 25, 32 (1st Cir. 2010) (holding that district court acted within its discretion 16 when it disregarded additional facts not contained in a separate section). A separate section serves 17 two purposes: “to allow the moving party to reply to those additional facts and to allow the court 18 to easily determine the disputed facts.” Malave-Torres v. Cusido, 919 F. Supp. 2d 198, 207 (D.P.R. 19 2013). For these reasons, “a party may not include numerous additional facts within its opposition 20 to the moving party’s statements of uncontested facts.” Id. 21 If a party improperly controverts the facts, Local Rule 56 allows the Court to treat the opposing 22 party’s facts as uncontroverted. Thus, the First Circuit has consistently held that litigants ignore 23 24 2 Civil No. 16-1543 (GAG) 1 Local Rule 56 at their peril. See Caban Hernandez v. Philip Morris USA, Inc., 486 F. 3d 1, 7 (1st 2 Cir. 2007). 3 The line between a properly supported qualification or denial and additional facts can be 4 blurry. Because Local Rule 56 requires that a record citation support each qualification or denial, 5 it can seem inevitable to proffer additional facts when doing so. But a better understanding of what 6 constitutes a qualification or denial helps. A qualification is “[a] modification or limitation of terms 7 or language; esp., a restriction of terms that would otherwise be interpreted broadly.” 8 Qualification, BLACK’S LAW DICTIONARY 1436 (10th ed 2014). Simply put, a qualification must 9 clarify a statement of fact that, without clarification, could lead the Court to an incorrect inference. 10 Thus, if a fact states that “Plaintiff works as an attorney all day,” a proper qualification would be: 11 “Plaintiff works as an attorney from 9-5” and a citation to the record supporting this fact. This 12 would prevent the Court from inferring that Plaintiff works as an attorney from 7 a.m. to 9 p.m., 13 which can be the standard in the legal world. Adding that Plaintiff works from 9-5 would not be 14 considered an “additional fact” in the context of Local Rule 56. On the other hand, a denial, as 15 common sense suggests, is “[a] statement that something is not true.” Denial, id. at 527. So if a 16 fact states that “Plaintiff is an attorney,” a proper denial would be: “Denied. Plaintiff is a doctor” 17 and a citation to the record supporting this fact. 18 First Circuit case law sheds some light on when parties cross the line between a proper 19 qualification or denial and additional facts. In Acevedo-Padilla v. Novartis Ex Lax, Inc., the district 20 court held that “a party’s denial or qualification of a proposed fact must be strictly limited to the 21 issue therein raised. Any additional information shall be included in a separate section in order to 22 ease the Court’s task.” 740 F. Supp. 2d 293, 298 (D.P.R. 2010), rev’d and remanded on other 23 24 3 Civil No. 16-1543 (GAG) 1 grounds, 696 F.3d 128 (1st Cir. 2012) (emphasis added).1 The First Circuit affirmed this ruling, 2 labeling it “an appropriate exercise of [the district court’s] discretion.” Acevedo-Parrilla, 696 F.3d 3 at 137 (“[D]istrict court, in an appropriate exercise of its discretion, ruled that it would disregard 4 any additional facts provided by [plaintiff] when denying or qualifying [defendant’s] statement of 5 uncontested facts”). So, returning to the previous example of the 9-5 attorney, it could be improper 6 to qualify the fact that Plaintiff works “all day” by adding that one day at work, Plaintiff’s boss 7 made a discriminatory remark. This fact would not be “strictly limited to the issue therein raised.” 8 Acevedo-Padilla, 740 F. Supp. 2d at 298. 9 The Court notes that the “strictly limited to the issue therein raised” standard for denials and 10 qualifications, as articulated by my esteemed colleague, the late Senior Judge Salvador E. Casellas, 11 is demanding but necessary. Id. The Court wants to impart justice, and lawyers play an essential 12 role in helping it achieve this goal. Honest argumentation and clear presentation of the issues and 13 facts help the Court tremendously. The opposite burdens the Court just as much. 14 Here, Natal’s response to Oriental’s statement of uncontested material facts suffers from the 15 same flaw as the plaintiff’s in Acevedo-Parrilla: many of Natal’s denials and qualifications contain 16 additional facts. For convenience and readability, the Court will address the issues in footnotes as 17 they arise in the relevant facts section. But to illustrate the problem, here is a notable example. 18 Paragraph 21 of Oriental’s statement of uncontested material facts states: “On September 30, 2015 19 Mr. Natal was suspended from work and pay from September 30, 2015, through October 30, 2015 20 for incorrectly directing his tellers’ employees and for telling them that they could accept tips from 21 clients up to $150.” (Docket No. 49 ¶ 21) (Record citations omitted). A proper qualification would 22 23 24 1 The district court’s opinion, as published, mistakenly names the plaintiff “Acevedo-Padilla” instead of “Acevedo-Parrilla.” The First Circuit corrected the mistake. The Court will refer to the cases as they appear published. 4 Civil No. 16-1543 (GAG) 1 be strictly limited to the suspension’s date, length, or reason. But instead, Natal narrates everything 2 that transpired before, during, and after the suspension, as the following fragment of Natal’s 3 paragraph 21 shows: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Paragraph 21 of DSUF is qualified, since on September 30, 2015, Natal was summoned to a meeting with Beatriz Santiago (“Santiago”) and Mrs. Tania Sánchez (“Sánchez”), who was one of the managers of defendant’s human resources department. During the meeting, Sánchez and Santiago referred to Natal as old man and accused him of having informed the employees of the branch that they could accept tips up until the amount $150.00, which Natal denied. Natal informed both of them that he had never issued that instruction to any of the employees that he supervised. During the meeting, Santiago and Sánchez referred to Natal as “old man” and also told him to ‘be quiet and to shut up his mouth’, and also told him to ‘be quiet old man’. Sánchez also told Natal that he was an old man, that he was worthless and that he should not be working at the bank. Sánchez and Santiago also told Natal that he was not good as a bank manager. Natal stated that the whole meeting was to insult him. Santiago then physically pushed Natal out of the room and told him to wait outside while Santiago and Sánchez continued with the meeting. Sánchez and Santiago also told Natal that he was going to be fired and ordered Natal to leave the facilities. Santiago and Sánchez then told Natal that he was going to be suspended from employment but failed to inform Natal about the amount of days of the suspension from employment and whether Natal was going to be suspended without pay or not. On September 30, 2015, Natal sent an email requesting to Santiago and Sánchez the reason for his suspension and the time of his suspension, but neither Santiago nor Sánchez, nor any defendant officer sent to Natal a response. On October 9, 2015, Natal filed a charge of discrimination before the EEOC and on October 14, 2015, sent a copy of the same to the defendant. .... (Docket No. 61-1 ¶ 21) (Record citations omitted). 19 Natal’s non-compliance troubles the Court because some of these improperly provided facts 20 are crucial to his case. They tell the story of when, where, and how he suffered alleged 21 discrimination. The Court could ignore them because it does not have to ferret through the parties’ 22 exhibits under Local Rule 56. See L. CV. R. 56(e) (“The court shall have no independent duty to 23 search or consider any part of the record not specifically referenced in the parties’ separate 24 5 Civil No. 16-1543 (GAG) 1 statement of facts.”). But the Court firmly believes in access to justice, the lack of which is a 2 serious problem in Puerto Rico, and feels uncomfortable completely disregarding these additional 3 facts. See, e.g., LUIS F. ESTRELLA MARTÍNEZ, ACCESO 4 visualizes ‘integrity’ as an ideal that aspires that public powers are not exercised in a capricious or 5 arbitrary way, but coherently.”) (translation ours); Deborah L. Rhode & Pablo J. Hernández 6 Rivera, Access to Justice in Puerto Rico, 86 REV. JUR. UPR 818, 822 (2017) (“The challenges 7 facing Puerto Rico in ensuring access to justice remain substantial.”); Federico Hernández Denton, 8 Acceso a la justicia y Estado de Derecho, 81 REV. JUR. UPR 1129 (2012) (focusing on two issues 9 that “directly affect the manner in which one can measure our Rule of Law’s success . . . . access 10 to justice and court efficiency”) (translation ours); JOSÉ TRÍAS MONGE, SOCIEDAD, DERECHO Y 11 JUSTICIA 291 (1986) (“[L]awyer[s] must ensure the continued improvement in the progress of our 12 courts”) (translation ours). Balancing its interests in efficiency and access to justice, the Court will 13 make an exception: It will consider that part of Natal’s deposition testimony where he narrates the 14 alleged discriminatory incident when deciding if the facts he states, if believed by a jury, would 15 create a genuine issue of material fact.2 A LA JUSTICIA 5 (2017) (“Dworkin 16 II. Relevant Factual Background 17 Natal was born in 1957, and at the time of the complaint, was 58 years old. (Docket Nos. 49 18 ¶ 1; 61-1 ¶ 1). He has worked in different banks since 1979, and for Oriental since 2012. (Docket 19 Nos. 49 ¶¶ 2-8; 61-1 ¶¶ 2-8). 20 When he became Oriental’s employee, Natal worked as a Branch Operations Manager in the 21 Old San Juan branch. (Docket Nos. 49 ¶ 7; 61-1 ¶ 7). His functions included managing branch 22 23 24 2 Plaintiff’s counsel is once again admonished to comply with Local Rule 56 in the future. Failure to do so may be considered malpractice, especially considering his “long track record” of inappropriate litigation tactics. Escribano-Reyes v. Prof'l Hepa Certificate Corp., 817 F.3d 380, 391 (1st Cir. 2016). 6 Civil No. 16-1543 (GAG) 1 operations, administering personnel, ensuring compliance with Oriental’s policies, bank 2 regulations, and procedures, among others. Id. One of these policies was Oriental’s Code of 3 Business Ethics, which forbade soliciting and accepting anything of value in exchange for any 4 business service. (Docket Nos. 49 ¶ 11; 61-1 ¶ 11). Oriental gave Natal the Code and required him 5 to review it annually. (Docket Nos. 49 ¶¶ 9-11; 61-1 ¶¶ 9-11). 6 In November 2013, Oriental transferred Natal from the Old San Juan branch to the Cataño 7 branch, where he worked as Branch Service and Operations Manager. (Docket Nos. 49 ¶ 14; 61-1 8 ¶ 14). He was in charge of supervising cashiers and platform relationship officers. (Docket Nos. 9 49 ¶ 17; 61-1 ¶ 17). 10 Work Suspension and Alleged Discrimination 11 During his tenure in Cataño, in March 2015, an employee named Diosys Ortiz was placed 12 under Natal’s supervision. (Docket Nos. 49 ¶ 78; 61-1 ¶ 78). On the one hand, Oriental asserts that 13 Natal “never had to give Ms. Ortiz a warning or call her attention regarding her performance or 14 violation of Oriental’s rules and policies.” (Docket No. 49 ¶ 78). On the other hand, Natal qualifies 15 that he was instructed to keep an eye on her to provide a reason to terminate her, because she was 16 sick with cancer. (Docket No. 61-1 ¶ 78). Regardless of this dispute, the parties agree that the 17 following September, Oriental terminated Ortiz for accepting cash tips from a client. (Docket Nos. 18 49 ¶ 78; 61-1 ¶ 78). 19 Consequently, on September 30, Oriental suspended Natal for incorrectly telling his 20 employees that they could accept tips up to $150. (Docket No. 49 ¶ 21). Nevertheless, Natal 21 qualifies this fact by clarifying that he denied the accusation. (Docket No. 61-1 ¶ 21).3 According 22 23 24 3 Natal’s qualification contains four paragraphs listing numerous additional facts surrounding the meeting where he was suspended and the aftermath. These additional facts belong in a separate section per Local Rule 56(c). Nevertheless, the Court will consider Natal’s testimony of that event and cite directly to the record evidence in the ensuing sentences. 7 Civil No. 16-1543 (GAG) 1 to Natal’s deposition testimony, after the cash tip incident, he was summoned to a meeting with 2 Santiago, his supervisor, and Tania Sánchez, a human resources manager. (Docket No. 49-1 at 55- 3 60, 159-60). According to Natal, during the meeting they referred to him as old, told him to be 4 quiet, and called him worthless. Id. Natal was suspended for one month. (Docket Nos. 49 ¶ 21; 61- 5 1 ¶ 21). He does not know if Oriental has ever reprimanded other managers for the same conduct 6 he allegedly engaged in. (Docket Nos. 49 ¶ 27; 61-1 ¶ 27). 7 During his suspension, Natal filed a discrimination charge against Oriental in the Equal 8 Employment Opportunity Commission alleging age discrimination and retaliation. (Docket Nos. 9 49 ¶ 22; 61-1 ¶ 22). According to Natal, he never complained to Human Resources about the 10 discriminatory acts because the discriminatory comments were made by a human resources 11 manager. (Docket No. 61-1 ¶ 28). 12 Reasonable Accommodation 13 Natal did not return to work when his suspension ended on November 1 because he took a 14 leave under the Family Medical Leave Act (FMLA) until November 30.4 Natal also requested 15 reasonable accommodation to attend his medical appointments four to five times per month. 16 (Docket Nos. 49 ¶ 75; 61-1 ¶ 75). He did not request any other types of reasonable accommodation. 17 (Docket Nos. 49 ¶ 77; 61-1 ¶ 77). Although Oriental has never rejected Natal’s requests for sick 18 leave, Natal claims that Santiago, his supervisor, made disrespectful comments about his age when 19 he made his request, such as “it’s time for you to go home, just pick up your bags,” and also 20 questioned his requests. (Docket Nos. 49 ¶ 76; 61-1 ¶ 76). 21 22 23 24 4 Natal qualifies this statement by introducing new facts: (1) that after the meeting he was mentally distressed, (2) visited a psychiatrist on September 30, (3) was diagnosed an anxiety disorder and depression, and (4) was ordered to rest from November 1 to November 30. These facts belong in a separate section. They do not clarify the fact Oriental offered: that he did not return to work on November 1 because he took leave. 8 Civil No. 16-1543 (GAG) 1 Return to Work and Transfer to Old San Juan 2 Natal returned to work on December 3. (Docket Nos. 49 ¶ 23; 61-1 ¶ 23). A month and a half 3 later, Oriental transferred Natal back to the Old San Juan branch. (Docket Nos. 49 ¶ 24; 61-1 ¶ 4 24).5 5 2015 Work Evaluation 6 Natal’s performance during 2015 was evaluated by his supervisor, Santiago. (Docket Nos. 49 7 ¶ 29; 61-1 ¶ 29).6 The evaluation occurred in October, while he was suspended.7 (Docket No. 49 8 ¶ 47). His performance in the “Goals-Coaching Sessions” section was rated as “unsatisfactory/does 9 not meet expectations” because he failed to complete the second part of a training. (Docket Nos. 10 49 ¶ 30; 61-1 ¶ 30). But Natal claims he was unable to complete this training because it occurred 11 during his suspension and leave. Id. According to Natal, he tried to complete the second part in 12 December but Santiago did not let him. (Docket No. 61-1 ¶ 30). In all other areas of the “Goals” 13 section, however, Natal received a positive evaluation. (Docket Nos. 49 ¶¶ 31-39; 61-1 ¶¶ 31-39). 14 But again in the “Competency” section, Natal received negative evaluations which he disagreed 15 with, testifying in his deposition that they were because of his age. (Docket Nos. 49 ¶¶ 40-46; 61- 16 1 ¶¶ 40-46). 17 COBRA Letter and Written warning 18 On March 12, Natal received an informative letter about his rights and responsibilities under 19 COBRA, which allows employees to keep their healthcare coverage in case of termination or other 20 21 22 23 24 5 Additional facts about his replacement, his opinion regarding the branch, and his opinion regarding the transfer are disregarded because they do not qualify the fact that he was transferred to Old San Juan in January 2016. 6 Natal improperly qualifies this fact by narrating prior evaluations. These are separate facts that belong in a separate section. 7 Natal qualifies this fact and adds new allegations that belong in the complaint, not the motion for summary judgment. Moreover, as separate facts that belong in a separate section, the qualification is also improper. Thus, the Court will treat Oriental’s fact as undisputed. 9 Civil No. 16-1543 (GAG) 1 qualifying events. (Docket Nos. 49, ¶ 52; 61-1 ¶ 52). After asking Human Resources about the 2 letter, a supervisor told Natal that it was an informative communication for his records, and as of 3 this complaint’s filing, none of the qualifying events had happened. (Docket Nos. 49, ¶¶ 53-54; 4 61-1 ¶¶ 54). 5 Four days later, Natal received a written warning for failing to monitor the cash funds and 6 exceeding the cash limits at the Cataño branch in December 2015, and in the Old San Juan branch 7 in January 2016. (Docket Nos. 49 ¶ 56; 61-1 ¶ 56). Natal does not dispute the fact that he received 8 the warning, but sustains the warning was unjust and retaliatory. (Docket Nos. 49 ¶ 58; 61-1 ¶ 58). 9 Still, Natal is unaware if Oriental disciplined other managers who engaged in the same conduct as 10 him. (Docket Nos. 49 ¶ 57; 61-1 ¶ 57).8 11 Almost two weeks later, Natal filed this lawsuit alleging age and disability discrimination. As 12 the case transpired, Oriental filed a motion for summary judgment, Natal responded, and Oriental 13 replied and filed a motion to strike some of Natal’s submissions. 14 III. Defendant’s Motion to Strike 15 Oriental filed a motion to strike four exhibits submitted by Natal in his opposition to Oriental’s 16 motion for summary judgment and statement of uncontested material facts. See Docket Nos. 66; 17 61; 61-1. The four exhibits are (1) a memo dated April 13, 2016 (Docket No. 61-11), (2) a medical 18 record (Docket No. 61-12), (3) an anti-discrimination charge filed on June 23, 2017 (Docket No. 19 61-14), and (4) a memo dated April 15, 2016 (Docket No. 61-15). 20 21 22 23 24 8 Natal qualifies this fact stating that “Santiago never took any disciplinary actions against the manager that replaced Natal, while the plaintiff was suspended from salary and employment and on a medical leave from October through early December 2015, in the Cataño branch, nor issued any disciplinary actions against the manager and the Senior Teller at the Old San Juan branch that requested to Santiago to have excess cash funds in the Old San Juan branch in the month of January 2016, due to “las Fiestas de la Calle San Sebastián,” which Santiago approved.” The citation provided does not support this assertion and does not deny or qualify Oriental’s proffered fact, which is clearly supported by the record. Oriental asked Natal if he knew of other managers who were disciplined for the same conduct and he replied “I don’t know.” (Docket No. 49-1 at 150). 10 Civil No. 16-1543 (GAG) 1 A. The Memos and Anti-Discrimination Charge 2 Oriental contends that the Court should strike the two memos and the anti-discrimination 3 charge because Natal (1) did not produce them in discovery and (2) they relate to matters beyond 4 the complaint’s scope. (Docket No. 66 at 3). According to Oriental, “these documents related to 5 events that occurred after the filing of the Complaint but related to another, separate, employment 6 action involving the plaintiff.” Id. (emphasis added). 7 “Rule 15(d) of the Federal Rules of Civil Procedure provides that any ‘transaction, occurrence, 8 or event that happened after the date of the pleading’ should be set forth in a supplemental 9 pleading.” WRIGHT AND MILLER, 6 FED. PRAC. & PROC. CIV. § 1473 (3d ed.). To file a 10 supplemental pleading, “[l]eave must be sought by motion, upon reasonable notice to the other 11 parties, and the court may impose such terms as are just.” Id. § 1504. 12 This case was filed on March 29, 2016. The memos date from April 2016, and the charge from 13 June 2017. These documents raise new allegations of discrimination. Natal argues that he did not 14 submit these exhibits to raise new allegations, but to clarify an incorrect statement by Oriental that 15 Natal had not been terminated. But as Oriental points out in its motion, at the time of the complaint, 16 Natal had not been terminated or subject to additional disciplinary measures. (Docket No. 48, fn. 17 3). Therefore, there was nothing to correct. Moreover, this is not a case where the plaintiff “is 18 merely augmenting the evidentiary basis for the very same age discrimination claim that he had 19 already sufficiently pled.” Soto-Feliciano, 779 F.3d 26. That would be the case if Natal introduced 20 new evidence supporting his existing claims, like a deposition from another employee concerning 21 his transfer to Old San Juan. Instead, Natal is “introducing a new theory of liability”—that he was 22 terminated and thus, discriminated and retaliated against. Id. If Natal wanted to include these new 23 allegations, the appropriate course was to amend his complaint and include these new events in a 24 11 Civil No. 16-1543 (GAG) 1 supplemental pleading. The reason for this is straightforward: fairness demands notice, and 2 Oriental needed notice of the allegations to defend itself against Natal. Raising new allegations of 3 discrimination at the summary judgment stage betrays this principle. 4 B. Medical Records 5 The medical records are cited in support of Natal’s disability claim. Pages 16-21 include 6 evaluations after the complaint was filed. Admitting these records would not alter the Court’s 7 decision, so the Court will not entertain the issue of their admissibility. 8 IV. Standard of Review 9 Summary judgment is appropriate when “the pleadings, depositions, answers to 10 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 11 genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter 12 of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see FED. R. CIV. P. 56(a). “An issue 13 is genuine if ‘it may reasonably be resolved in favor of either party’ at trial, . . . and material if it 14 ‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.’” Iverson 15 v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (internal citations 16 omitted). 17 The moving party bears the initial burden of demonstrating the lack of evidence to support 18 the non-moving party’s case. Celotex, 477 U.S. at 325. “The burden then shifts to the nonmovant 19 to establish the existence of at least one fact issue which is both genuine and material.” Maldonado- 20 Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The nonmovant may establish a fact 21 is genuinely in dispute by citing particular evidence in the record or showing that either the 22 materials cited by the movant “do not establish the absence or presence of a genuine dispute, or 23 that an adverse party cannot produce admissible evidence to support the fact.” FED. R. CIV. P. 24 12 Civil No. 16-1543 (GAG) 1 56(c)(1)(B). If the Court finds that a genuine issue of material fact remains, the resolution of which 2 could affect the outcome of the case, then the Court must deny summary judgment. See Anderson 3 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 When considering a motion for summary judgment, the Court must view the evidence in 5 the light most favorable to the nonmoving party and give that party the benefit of any and all 6 reasonable inferences. Id. at 255. Moreover, at the summary judgment stage, the Court does not 7 make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, 8 however, if the nonmoving party’s case rests merely upon “conclusory allegations, improbable 9 inferences, and unsupported speculation.” Forestier Fradera v. Municipality of Mayaguez, 440 10 F.3d 17, 21 (1st Cir. 2006) (quoting Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003)). 11 V. Discussion 12 These issues are: (1) Whether Natal satisfies the requirements for a prima facie case of 13 discrimination under ADEA; (2) whether Natal suffered from a hostile work environment because 14 of his age while working at Oriental; (3) whether Oriental engaged in willful discrimination; and 15 (4) whether Oriental retaliated against Natal for engaging in protected activity and opposing 16 unlawful activity. A fifth issue—ADA discrimination and reasonable accommodation—will not 17 be considered because Natal has withdrawn these claims. 18 ADEA Discrimination 19 The ADEA makes it unlawful for an employer to “fail or refuse to hire or discharge any 20 individual or otherwise discriminate against any individual . . . because of such individual’s age.” 21 29 U.S.C. § 623(a)(1). “A plaintiff asserting a claim under the ADEA has the burden of 22 establishing ‘that age was the “but-for” cause of the employer’s adverse action.’” Acevedo- 23 Parrilla, 696 F.3d at 138 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)). 24 13 Civil No. 16-1543 (GAG) 1 ADEA cases can be divided into two kinds: those with direct evidence of discrimination 2 and those without. “Answering [if direct evidence exists] is more difficult than might appear at 3 first blush,” but it is “universally accepted” that stray remarks, such as “statements by 4 nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself” are 5 not direct evidence. Fernandes v. Costa Bros. Masonry, 199 F.3d 572, 581 (1st Cir. 1999), 6 abrogated on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (quoting Price 7 Waterhouse, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring)). Absent direct evidence of 8 discrimination, the Court addresses an ADEA age discrimination claim under “the familiar three- 9 step framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 (1973).” See 10 Soto-Feliciano, 779 F.3d at 23. 11 Here, the parties submitted their arguments following the McDonnell Douglas approach 12 for indirect evidence. Confusingly, in his argument asserting a prima facie case, Natal claims there 13 is direct evidence of discrimination, but does not flesh out his argument as to why the Court should 14 approach his claims under the direct evidence approach and not McDonnell Douglas. (Docket No. 15 61 at 6). First, “[i]t is not enough merely to mention a possible argument in the most skeletal way, 16 leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its 17 bones.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). And second, even if the alleged 18 remarks made during the suspension meeting or requests for reasonable accommodation were 19 advanced as direct evidence, for the reasons discussed in the hostile work environment section 20 below, the Court finds that these are “stray remarks.” So, for these two reasons and out of fairness 21 to both parties, who argued their case under the McDonnell Douglas approach, the Court will 22 proceed under this approach. 23 24 14 Civil No. 16-1543 (GAG) 1 In the first of the three McDonnell Douglas stages, the plaintiff must establish a prima facie 2 discrimination case. Acevedo-Parrilla, 696 F.3d at 136. This requires a plaintiff to show: “that (i) 3 [he] was at least 40; (ii) [his] work was sufficient to meet the employer’s legitimate expectations; 4 (iii) [his] employer took adverse action against [him]; and (iv) either younger persons were retained 5 in the same position upon [his] termination or the employer did not treat age neutrally in taking 6 the adverse action.” Del Valle-Santana v. Servicios Legales De Puerto Rico, Inc., 804 F.3d 127, 7 129–30 (1st Cir. 2015). Oriental concedes the first prong of the test and disputes the rest. 8 1. Adverse Employment Action 9 Natal and Oriental raise the issue of what constitutes an adverse action under the ADEA. 10 Natal alleges five adverse actions: the suspension, the transfer to Old San Juan, the negative work 11 evaluation in 2015, the written warning in 2016, and the COBRA letter in 2016. The Court will 12 consider all, including the suspension that Oriental conceded, to clarify the confusion of whether 13 the ADEA requires actual or constructive discharge for an adverse employment action to exist. As 14 explained below, based on precedent of the Supreme Court and First Circuit, the Court holds that 15 an adverse employment action under the ADEA does not require actual or constructive discharge. 16 Additionally, the Court holds that Title VII discrimination precedent for what constitutes adverse 17 action applies to ADEA discrimination cases as well. 18 The confusion as to whether ADEA requires discharge or if another type of adverse 19 employment action suffices is not unwarranted. The type of adverse action encompassed by the 20 ADEA includes failure or refusal to hire, discharge, or discrimination “with respect to his 21 compensation, terms, conditions, or privileges of employment.” 29 U.S.C. § 623(a)(1). The First 22 Circuit has listed the elements of a prima facie case and used adverse action and discharge 23 interchangeably when defining the third prong. See, e.g., Acevedo-Parrilla, 696 F. 3d at 138 ( “[3] 24 15 Civil No. 16-1543 (GAG) 1 was nevertheless fired”); Adamson, 750 F.3d at 78 (“(3) that he suffered an adverse employment 2 action such as a firing”). This Court noted in Colon v. Medtronic, Inc., “that the First Circuit has 3 yet to specifically address whether a Plaintiff who claims no type of discharge can still satisfy the 4 adverse employment action prong of an ADEA claim.” No. 13-1569, 2015 WL 5089494, at *12 5 (D.P.R. Aug. 27, 2015) (emphasis added). It further noted that “[t]he undersigned’s esteemed 6 colleagues have frequently decided that the third prong of an ADEA claim requires that the 7 employee be discharged—either actually or constructively.” Id. Indeed, since 2015 the First Circuit 8 has not ruled on an ADEA case where the adverse actions excluded a discharge.9 Despite the 9 ambiguity, the Court denied summary judgment in Colon, where the plaintiff was not discharged 10 and did not claim a constructive discharge; instead, she claimed that a negative work evaluation 11 was an adverse action. The evaluation prevented the plaintiff from obtaining a performance bonus. 12 Thus, drawing on case law from other district courts, the Court held that “the issue [of] whether 13 the consequences of said negative evaluation rises to a level of an adverse employment action” 14 was best left for the jury. Id. at *13. 15 Supreme Court precedent settles the issue of whether adverse action requires discharge. In 16 Gross v. FBL Financial Services, Inc. the majority opinion referred to the ADEA as “mak[ing] it 17 unlawful for an employer to take adverse action against an employee ‘because of such individual’s 18 age.’” 557 U.S. 167, 170 (2009) (citing 29 U.S.C. § 623(a)) (emphasis added). The adverse action 19 in Gross was a reassignment, which the plaintiff considered a demotion. Id. at 170. While this 20 would appear to dissipate any confusion as to whether an adverse action requires actual or 21 constructive discharge, the issue before the Court was not what constituted an adverse action. But 22 23 24 9 In Soto-Feliciano, the First Circuit treated a suspension as an adverse action, but considered it alongside a subsequent termination. 779 F.3d at 27. (“Soto was suspended less than two weeks later, making the allegedly discriminatory remarks temporally proximate to, rather than remote from, the adverse employment action.”). 16 Civil No. 16-1543 (GAG) 1 fortunately, statutory interpretation comparing the ADEA with Title VII provides further assurance 2 that adverse action does not require actual or constructive discharge. 3 “When conducting statutory interpretation, we ‘must be careful not to apply rules 4 applicable under one statute to a different statute without careful and critical examination.’” Id. at 5 174. In 2013, the Supreme Court held that Title VII’s retaliation provision requires the same 6 burden of proof as the ADEA’s retaliation provision because each statute employed the same 7 “because of” language in its text. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 8 (2013). Thus, “[g]iven the lack of any meaningful textual difference between the text in [Title VII] 9 and the [ADEA], the proper conclusion here . . . is that Title VII retaliation claims require proof 10 that the desire to retaliate was the but-for cause of the challenged employment action.” Id. at 2528. 11 Here, the Court opts to analyze what constitutes “adverse action” in the context of ADEA 12 discrimination using Title VII precedent as well. It does so “[g]iven the lack of any meaningful 13 textual difference” between the two statutes on the forbidden conduct.10 Indeed, “[t]he basic 14 substantive provisions of the [ADEA] are identical to Title VII, with the substitution of the word 15 ‘age’ as the prohibited basis for discrimination in place of ‘race, color, religion, sex, or national 16 origin.’” ROTHSTEIN, ET AL, 1 EMPLOYMENT LAW § 2:38 (5th ed.). Since Title VII accepts less than 17 constructive or actual discharge for an adverse action to exist, the same must be true of the ADEA 18 given the lack of a meaningful textual difference between both. Moreover, because of this 19 20 21 22 23 24 10 Title VII states: “It shall be unlawful . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. Almost identically, the ADEA states: “It shall be unlawful . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623 (a)(1). 17 Civil No. 16-1543 (GAG) 1 similarity, Title VII discrimination precedent for “adverse action” can apply to ADEA 2 discrimination “adverse action” issues as well.11 3 The First Circuit has explained that “[t]o determine if an employment action is in fact 4 ‘adverse,’ we look for whether it has ‘materially change[d] the conditions of plaintiff[‘s] employ.’” 5 Cherkaoui v. City of Quincy, 877 F.3d 14, 25 (1st Cir. 2017) (quoting Gu v. Boston Police Dep’t, 6 312 F.3d 6, 14 (1st Cir. 2002). “Material changes include ‘demotions, disadvantageous transfers 7 or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of 8 harassment by other employees.’” Gu, 312 F.3d at 14 (quoting Hernandez-Torres v. 9 Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998)) (emphasis added). Still, “[t]he clear 10 trend of authority is to hold that a purely lateral transfer, that is, a transfer that does not involve a 11 demotion in form or substance, cannot rise to the level of a materially adverse employment action.” 12 Marrero v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir. 2002) (quoting Ledergerber v. Stangler, 122 13 F.3d 1142, 1144 (8th Cir. 1997)) (emphasis in original). 14 Natal’s transfer to Old San Juan was not an adverse employment action. It is undisputed 15 that Natal’s salary and benefits did not change from September 30, 2015 until his last day at 16 Oriental.12 (Docket No. 49 ¶¶ 24-26). Natal did not supply any admissible additional facts in his 17 submissions that would allow the Court to conclude that the transfer was disadvantageous. Even 18 assuming that the facts raised in his response brief are true—that it was a demotion just because 19 the Old San Juan branch was less active—these would not prove that the transfer was materially 20 21 22 23 24 11 One might argue that the Court cannot interpret the ADEA using Title VII discrimination precedent based on the Supreme Court’s decision in Gross, where the Court refused to do so for the issue of causation. But on the issue of causation, the ADEA and Title VII use different language. Yet the issue here is the definition of “adverse action”, where both statutes do not differ. 12 Natal denies this undisputed fact saying that his salary changed because he was suspended for one month and took medical leave for another month, but (1) this happened before his transfer and (2) this does not deny the fact that he had the same salary and benefits. If anything, it qualifies the fact saying that despite having the same salary, he did not get paid during his suspension and medical leave. 18 Civil No. 16-1543 (GAG) 1 adverse. “A materially adverse change in the terms and conditions of employment ‘must be more 2 disruptive than a mere inconvenience or an alteration of job responsibilities.’” De Jesus v. Potter, 3 211 F. App’x 5, 9 (1st Cir. 2006) (quoting Marrero, 304 F.3d 7, 23 (1st Cir. 2002)) (No adverse 4 action where employee “argue[d] that the transfer was ‘disadvantageous’ because she was required 5 to do more work, subjected to ‘extreme supervision,’ and forced to undergo a period of 6 probation.”). 7 The 2016 written warning cannot be considered an adverse action either given the absence 8 of evidence pointing to the contrary. Oriental’s statement of uncontested material facts states that: 9 “Natal received a written warning for failure to monitor the cash funds in the branch and exceeding 10 the cash limits at the Cataño branch for the month of December 2015 and in the Old San Juan 11 branch for the month of January, 2016.” (Docket No. 49 ¶ 56). Natal improperly denied this fact, 12 and the Court has admitted Oriental’s fact as uncontroverted. There are no other facts indicating a 13 material change in the conditions of Natal’s employment as a result of this warning. A warning in 14 and of itself is not an adverse employment action. Even if treated as a negative job evaluation, case 15 law is clear that there must be proof that the negative evaluation is “unwarranted.” Given that Natal 16 has not provided admissible facts indicating so, and the Court is not required to ferret through 17 exhibits to find them, it holds that Natal has not met his burden of proof. 18 Likewise, Natal has not proven an issue of fact regarding the COBRA letter being an 19 adverse action. The undisputed facts show that Natal received an informative letter about his rights 20 and responsibilities under COBRA. (Docket Nos. 49, ¶ 52; 61-1 ¶ 52). After asking Human 21 Resources about the letter, a supervisor told Natal that it was an informative communication for 22 his records. (Docket Nos. 49, ¶ 53; 61-1 ¶ 53). As of filing this complaint, none of the letter’s 23 24 19 Civil No. 16-1543 (GAG) 1 qualifying events that would activate his rights have happened. (Docket Nos. 49, ¶ 54; 61-1 ¶ 54). 2 Thus, the letter did not materially change anything in his employment. 3 On the other hand, the suspension and negative job evaluation from 2015 could be 4 considered an adverse employment action. It is undisputed that Natal got a negative job evaluation 5 for not completing a training. (Docket Nos. 49 ¶ 30; 61-1 ¶ 30). Whether the job evaluation was 6 warranted or not is disputed, as Natal properly qualified that he was unable to complete the training 7 because he was suspended and on leave while it happened. (Docket Nos. 49 ¶ 30; 61-1 ¶ 30). Since 8 an unwarranted job evaluation could be a “material change,” see Gu, 312 F.3d at 14, it could also 9 be an adverse action in the eyes of a reasonable juror. Thus, on this issue, Natal has met his burden. 10 11 12 13 The same is true of the suspension, which Oriental has conceded. In sum, the Court concludes that Natal has met his burden on the adverse action prong of the prima facie test for the suspension and the 2015 negative evaluation. 2. Plaintiff’s Qualification 14 To meet his burden under the qualified prong of the prima facie test, a plaintiff must 15 “present[] ‘evidence which, if believed, prove[s] that he was doing his chores proficiently.’” 16 Acevedo-Parrilla, 696 F.3d at 139 (internal citations omitted) (quoting Freeman v. Package Mach. 17 Co., 865 F.2d 1331, 1335 (1st Cir. 1988)). But “[a] plaintiff is not required, at the prima facie 18 stage, to disprove the defendant’s proffered nondiscriminatory reason for taking an adverse 19 employment action.” Id. As the First Circuit has held, “doing so ‘bypass[es] the burden-shifting 20 analysis and deprive[s] the plaintiff of the opportunity to show [such] reason was in actuality a 21 pretext designed to mask discrimination.’” Id. (quoting Vélez v. Thermo King de P.R., Inc., 585 22 F.3d 441, 444 (1st Cir. 2009)). Thus, the First Circuit has found that a plaintiff has met his prima 23 facie burden “where, despite employer’s challenge of his account regarding the ‘adequacy of his 24 20 Civil No. 16-1543 (GAG) 1 job performance,’ plaintiff ‘adduced a quantum and quantity of evidence of his competence . . . 2 sufficient to prevail if a jury believed his version of the facts and disbelieved defendant.’” Id. 3 (citing Herbet v. Mohawk Rubber Co., 872 F.2d 1104, 1112 (1st Cir. 1989)). 4 The Court holds that a dispute of material fact exists whether Natal is qualified for the 5 position he held. Oriental argues that Natal is not qualified because he instructed employees that 6 they could take tips and he failed to complete part of his training. These were also the reasons for 7 the adverse actions taken by Oriental: the suspension and the negative evaluation. But Natal does 8 not need to disprove these reasons at this stage, and evidence exists that would allow a reasonable 9 juror to infer he was qualified. First, he has worked in banking for decades, and Oriental proffered 10 no proof of prior negative performance. (Docket Nos. 49 ¶ 2; 61-1 ¶ 2); see Velez, 585 F.3d at 448 11 (Plaintiff pointed specifically to his long record of employment . . . a twenty-four year period 12 without discipline or indications of deficient performance . . . .”). Second, Oriental gave Natal a 13 positive evaluation in some areas of its 2015 evaluation. (Docket Nos. 49 ¶¶ 31-39; 61-1 ¶¶ 31- 14 39). Thus, despite his flaws in one area, a juror could conclude that his strengths in other areas tip 15 the scale in his favor. Third, Oriental cannot point to his suspension as proof that he was not 16 qualified because he allowed employees to take cash tips. (Docket No. 49 ¶ 21). Natal denies 17 having instructed so, thus creating a dispute of fact regarding this alleged instruction. (Docket No. 18 61-1 ¶ 21). And as explained earlier, Natal does not need to disprove the reason for the adverse 19 action—the suspension—at this stage. Therefore, the Court holds that Natal meets his burden for 20 this part of the prima facie test. 21 22 23 24 21 Civil No. 16-1543 (GAG) 1 3. Treating Age Neutrally 2 The Court agrees with Oriental that Natal failed to provide evidence showing that Oriental 3 did not treat age neutrally when it suspended Natal and issued a negative job evaluation. As 4 plaintiff, he bears the burden of proof that Oriental did not treat age neutrally. 5 Regarding the suspension, Natal fails to satisfy the burden of proof due to insufficient 6 evidence. Natal does not know if Oriental has reprimanded other managers for the same conduct 7 he allegedly engaged in —authorizing cash tips. This undisputed fact is highly indicative that Natal 8 cannot prove that Oriental did not treat age neutrally when suspending him. (Docket Nos. 49 ¶ 27; 9 61-1 ¶ 27). Still, an issue remains as to whether the age-based comments during the suspension 10 meeting can prove that Oriental did not treat age neutrally. It is true that “evidence of age-related 11 comments could support an inference of pretext and discriminatory animus,” especially when 12 “some of these comments [are] made by the key decisionmaker and others . . . during the 13 decisionmaking process.” Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433, n. 6 (1st Cir. 14 2000). Nevertheless this inference does not follow where the plaintiff “fail[s] to adduce sufficient 15 evidence that the remarks were both temporally and causally related to [the defendant’s] decision 16 to discharge him.” Dunn v. Trustees of Boston Univ., 761 F.3d 63, 75 (1st Cir. 2014) (quoting 17 Melendez v. Autogermana, Inc., 622 F.3d 46, 54 (1st Cir. 2010)) (emphasis in original). While 18 Natal says they called him “old man,” he also says that “[w]hat was discussed [in the meeting] was 19 the topic of the tips.” (Docket No. 49-1 at 55, 57). This may prove that key decisionmakers made 20 age-related comments during the decision-making process, but he still fails to “adduce sufficient 21 evidence that the remarks were both temporally and causally related” to their decision to suspend 22 him. Dunn, 761 F.3d at 75. He has not offered sufficient proof to convince a jury that he was 23 suspended because he was “old,” or even that it weighed in the decisionmaking process. A jury is 24 22 Civil No. 16-1543 (GAG) 1 left to conclude that Oriental did not treat age neutrally because (1) two employees called him old 2 (2) during a meeting where they suspended him. That these two facts co-exist does not prove a 3 causal relation in ADEA discrimination. 4 As to the negative evaluation, Natal’s only proof that Oriental did not take age neutrally is 5 his testimony attributing it to becoming “old” in the eyes of his supervisor after the suspension. 6 (Docket No. 49-1 at 98 (“From September on, I became an ‘old’ person.”)). The problem is that 7 Natal offers no facts that would support an inference that his conclusion is correct. As the First 8 Circuit has held, “a nonmovant cannot rely merely upon conclusory allegations, improbable 9 inferences, and unsupported speculation.” Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d 307, 10 313, 315 (1st Cir. 2016) (“[O]nly evidence proffered . . . contains unsupported, speculative 11 assertions about the way overtime was determined and administered . . . . [is] insufficient to present 12 a material issue of fact meriting trial.”). Moreover, “testimony and affidavits that ‘merely reiterate 13 allegations made in the complaint, without providing specific factual information made on the 14 basis of personal knowledge’ are insufficient.” Velazquez-Garcia v. Horizon Lines Of Puerto Rico, 15 Inc., 473 F.3d 11, 18 (1st Cir. 2007) (quoting Santiago-Ramos v. Centennial P.R. Wireless Corp., 16 217 F.3d 46, 53 (1st Cir. 2000) (affidavit was sufficient because it included “specific factual 17 information based upon her personal knowledge”.)). Therefore, given the lack of evidence 18 allowing a jury to conclude that Oriental did not treat age neutrally, the Court holds that Natal 19 cannot establish a prima facie case of ADEA discrimination. 20 4. Burden-Shifting: Legitimate Business Reasons and Pretext 21 Even if the Court concluded that Natal met his burden of proof to show that Oriental did 22 not treat age neutrally, Oriental can prove it had legitimate business reasons to suspend Natal— 23 Oriental believed that Natal authorized employees to take tips against Oriental’s ethical code and 24 23 Civil No. 16-1543 (GAG) 1 policies. This legitimate business reason would shift the burden back to Natal to prove that this 2 reason to suspend him was pretextual. 3 If Natal tried to prove that this reason was pretextual, he would fail again because of 4 insufficient evidence. All he could point to would be temporally proximate stray remarks without 5 any proof of a causal connection, and his denial that he authorized to take tips. But the undisputed 6 facts are that Ortiz took an unauthorized cash tip, Natal was her supervisor, and Oriental 7 reprimanded him for letting it happen. Being called old for the first time during the suspension 8 meeting is not enough to convince a reasonable jury that he was really suspended because of his 9 age and not because of the tip incident, especially when the undisputed facts prove that Oriental 10 had compelling reasons to punish him. See Docket 49-1 at 98 (“From September on, I became an 11 ‘old’ person.”) (emphasis added); Melendez v. Autogermana, Inc., 622 F.3d 46, 55 (1st Cir. 2010) 12 (“These remarks, even if ageist, are insufficient to overcome the compelling evidence proffered 13 by Autogermana showing that Meléndez was dismissed due to poor work performance and they 14 thus fail to raise the inference that the real reason for Meléndez’s termination was age 15 discrimination.”). 16 Therefore, the Court GRANTS summary judgment for the defendants because Natal has 17 not met his burden for a prima facie case of ADEA discrimination given the absence of evidence 18 that Oriental did not treat age neutrally. 19 Hostile Work Environment 20 Natal alleges that Oriental created a hostile work environment by (1) making disparaging 21 remarks about his age, (2) increasing his duties and schedules, (3) falsely admonishing him, (4) 22 ignoring his requests for backup personnel and thus requiring him to work as a cashier, and (5) 23 sending him a COBRA letter regarding his rights if he were discharged. See Docket No. 49 at 8. 24 24 Civil No. 16-1543 (GAG) 1 Oriental moves for summary judgment because the alleged harassment was not severe and 2 pervasive enough to establish a hostile work environment; the Court agrees. 3 Hostile work environment claims originated in sex discrimination litigation, but have since 4 been recognized for members of any protected class. Rivera-Rodríguez v. Frito Lay Snacks 5 Caribbean, 265 F.3d 15, 24 (1st Cir. 2001) (discussing origin of hostile work environment claims 6 under ADEA). The First Circuit, in recognizing hostile work environment claims under the ADEA, 7 has held that a plaintiff must show that: (1) he/she is a member of a protected class; (2) he/she was 8 subjected to unwelcome harassment; (3) the harassment was based on age; (4) the harassment was 9 sufficiently pervasive or severe so as to alter the conditions of a plaintiff’s employment and create 10 an abusive work environment; (5) the objectionable conduct was both objectively and subjectively 11 offensive such that a reasonable person would find it hostile or abusive and that the plaintiff did in 12 fact perceive it to be so; and (6) some basis for employer liability has been established. See 13 O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001). 14 The Supreme Court has noted that the test for proving a hostile work environment is not, 15 and by its nature cannot be, mathematically precise. See Harris v. Forklift Systems Inc., 510 U.S. 16 17, 22 (1993). A court determining whether an environment is sufficiently hostile or abusive must 17 examine the totality of the circumstances including the frequency of the discriminatory conduct; 18 its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and 19 whether it unreasonably interferes with an employee’s work performance. Id. at 23. Simple teasing, 20 offhand comments, and isolated incidents (unless extremely serious) do not create a hostile work 21 environment. Farragher v. City of Boca Raton, 524 U.S. 775, 778 (1998). The Court’s function is 22 one of screening to determine whether, on particular facts, a reasonable jury could reach such a 23 conclusion. See Noviello v. City of Boston, 398 F.3d 76, 94 (1st Cir. 2005). 24 25 Civil No. 16-1543 (GAG) 1 The record does not evidence a genuine issue of material fact on the hostile work 2 environment issue. These are all the facts properly submitted on this matter: Natal worked extra 3 hours on some Saturdays, and admits it was not due to his age. (Docket Nos. 49 ¶ 48; 61-1 ¶ 48). 4 He did not request additional personnel in Old San Juan because he did not need assistance. 5 (Docket Nos. 49 ¶ 49; 61-1 ¶ 49). He never worked as a cashier in Old San Juan. (Docket Nos. 49 6 ¶ 54; 61-1 ¶ 50). He received a COBRA letter on March 12, 2016, and was told by Carla Molina, 7 the Human Resources Supervisor, that it was an informative communication. (Docket Nos. 49 ¶¶ 8 52-53; 61-1 ¶¶ 52-53). Moreover, he received a warning for failing to monitor the cash funds in 9 Cataño and San Juan, and he has clarified that the amount in San Juan was $55. (Docket Nos. 49 10 ¶ 56; 61-1 ¶ 56). He has also admitted that he does not know if Oriental took disciplinary action 11 against other managers for the same breach, but Natal subjectively feels that the warning was the 12 result of persecution due to age. (Docket Nos. 49 ¶¶ 57-58; 61-1 ¶¶ 57-58). Despite this pattern of 13 alleged harassment, Natal did not report the allegedly discriminatory remarks made by Santiago 14 to Human Resources or her supervisor. (Docket Nos. 49 ¶ 59; 61-1 ¶ 59). He knows that Oriental 15 has an antidiscrimination policy in place, but he has clarified that he did not report his grievance 16 because the Human Resources Manager was present when the alleged discriminatory remarks were 17 made. (Docket No. 61-1 ¶ 28). The only fact Natal has disputed is an e-mail from early 2015 where 18 he appears friendly to his supervisors and that according to Oriental disproves his hostile work 19 environment claim. (Docket Nos. 49 ¶ 61; 61-1 ¶ 61). Beyond these facts, which incorporate 20 Natal’s qualifications, Natal did not submit any additional relevant facts in a separate section for 21 Oriental to admit, deny, or qualify. 22 Taking all these facts as true, even the alleged comments at the suspension meeting, the 23 Court cannot conclude that Natal suffered from a hostile work environment. None of it arises to 24 26 Civil No. 16-1543 (GAG) 1 the degree of severity and pervasiveness required to establish a hostile work environment claim in 2 the eyes of a reasonable juror—not even the alleged ageist remarks at the suspension meeting or 3 when he requested reasonable accommodation. Precedent supports this decision. See e.g., 4 Fontanez-Nunez v. Janssen Ortho LLC, 447 F.3d 50, 53 (1st Cir. 2006) (No hostile work 5 environment where plaintiff was called “gray haired” and “cocktaoo,” and told he looked like 6 another co-worker who was considered slow and incompetent); Villegas-Reyes v. Universidad 7 Interamericana de P.R., 476 F. Supp. 2d 84 (D.P.R. 2007) (No hostile work environment where 8 plaintiff was called old, elderly, grandmother, and told she should retire); Marrero v. Schindler 9 Elevator Corp., 494 F. Supp. 2d 102, 110 (D.P.R. 2007) (Even if true that plaintiff was referred to 10 as old, little old man, and “viejo pendejo” on a daily basis, it was “too mild to form the basis of a 11 hostile work environment claim.”). Calling Natal an “old man,” if true, may have been 12 disrespectful. But looking at the totality of circumstances in this case, it was not sufficiently 13 egregious, severe or pervasive to survive summary judgment. Therefore, Oriental’s motion for 14 summary judgment on the hostile work environment claim is GRANTED. 15 Willful ADEA Discrimination 16 Natal sues for willful violation of the ADEA. (Docket No. 1 ¶ 26). Section 7(b) of the 17 ADEA provides for liquidated damages for a willful violation. A “violation is considered willful 18 if ‘the employer . . . knew or showed reckless disregard for the matter of whether its conduct was 19 prohibited by the ADEA.’” Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 721 (1st Cir. 1994) (citing 20 Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 (1985)). Natal has offered no facts 21 proving this issue and did not argue it in his opposition. As noted earlier: “It is not enough merely 22 to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, 23 24 27 Civil No. 16-1543 (GAG) 1 create the ossature for the argument, and put flesh on its bones.” Zannino, 895 F.2d at 17. 2 Therefore, on this issue, the Court will GRANT Oriental’s motion for summary judgment. 3 ADEA and ADA Retaliation 4 Natal alleges that Oriental retaliated against him for (1) refusing to fire Ortiz, who he 5 believes had cancer, (2) requesting a reasonable accommodation under the ADA, and (3) filing an 6 anti-discrimination claim under the ADEA. The standard for retaliation under the ADEA and ADA 7 is the same as Title VII, so the Court will consider both concurrently. See Nassar, 133 S. Ct. at 8 2532-33 (requiring “but-for” causation under the similarly-worded anti-retaliation provision of 9 Title VII). 10 To make out a prima facie case of retaliation under either type, the Court employs the 11 familiar burden-shifting framework articulated in McDonnell Douglas, 411 U.S. at 801-03. 12 Plaintiff must prove that: (1) []he engaged in protected activity under the ADEA; (2) []he suffered 13 an adverse employment action; and (3) the adverse employment action was causally connected to 14 the protected activity.” Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010). 15 Once the prima facie case of retaliation is shown, a presumption of discrimination arises and the 16 burden of production then shifts to the employer to show a “legitimate, non-discriminatory reason” 17 for the adverse employment action. Id. at 46. If the defendant meets the burden of production, the 18 burden then shifts back to the plaintiff to show that the proffered reason is actually pretextual, and 19 that the plaintiff would not have suffered an adverse action absent retaliatory animus. See Nassar, 20 133 S. Ct. at 2532-33. 21 Funneling the facts through the McDonnell Douglas test, the Court finds a genuine issue 22 whether Natal received a negative job evaluation in retaliation for filing an antidiscrimination 23 claim and requesting a reasonable accommodation. 24 28 Civil No. 16-1543 (GAG) 1 1. Protected Conduct 2 “Protected conduct ‘refers to action taken to protest or oppose statutorily prohibited 3 discrimination.’” Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 175 (1st Cir. 4 2015) (quoting Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009)). Here, it is undisputed 5 that Natal engaged in protected activity when he filed the anti-discrimination charge on October 6 9, 2015, and when he requested leave under the FMLA during November. (Docket Nos. 49 ¶ 22, 7 75; 61-1 ¶ 22, 75). He also alleges he engaged in protected activity when he refused to terminate 8 Ortiz for what he considered to be illegal reasons. Because this second claim fails on the causation 9 prong, the Court will assume that Natal has set forth sufficient facts to prove he opposed unlawful 10 11 activity and thus engaged in protected activity by refusing to fire Ortiz. 2. Adverse Action 12 Natal alleges a handful of adverse employment actions ensued from his protected activity: 13 a suspension, negative job evaluation, transfer, and the 2016 written warning. Although the Court 14 discussed the “adverse action” requirement at length earlier, in retaliation “[t]his requirement is 15 distinguishable from the ‘adverse action’ required for a claim of discrimination. It is a lesser 16 standard in order to protect individuals from asserting their rights, even incorrectly, under federal 17 antidiscrimination law.” ROTHSTEIN, 18 materially adverse if “it well might have ‘dissuaded a reasonable worker from making or 19 supporting a charge of discrimination.’” Burlington Northern and Santa Fe Ry. Co. v. White, 548 20 U.S. 53 (2006). “Examples of adverse employment actions in the retaliation context ‘include 21 termination of employment, a demotion evidenced by a decrease in wage or salary, a less 22 distinguished title, a material loss of benefits, significantly diminished material responsibilities, or 23 other indices that might be unique to a particular situation.’” Morales-Vallellanes v. Potter, 605 ET AL § 2:11. In the context of retaliation, an action is 24 29 Civil No. 16-1543 (GAG) 1 F.3d 27, 36 (1st Cir. 2010) (citing Lapka v. Chertoff, 517 F.3d 974, 986 (7th Cir. 2008)). On the 2 other hand, “‘petty slights or minor annoyances that often take place at work and that all employees 3 experience’ . . . fall outside the scope of the anti-discrimination laws.” Billings v. Town of Grafton, 4 515 F.3d 39, 54 (1st Cir. 2008) (quoting Burlington Northern, 126 S. Ct. at 2415); 5 Here, a jury could find that Natal suffered adverse employment actions after engaging in 6 protected activity and opposing unlawful activity. The suspension was an adverse employment 7 action. Although Oriental correctly emphasizes that it occurred before Natal filed the 8 antidiscrimination claim, it happened after Natal alleges to have opposed an unlawful activity— 9 the request to fire Ortiz because she was ill. And while he fails to prove causation, as discussed 10 below, Natal meets his burden of proof for purposes of this prong. Likewise, the negative job 11 evaluation was an adverse employment action. A reasonable juror could find that receiving a 12 negative job evaluation after filing an antidiscrimination charge is a clear example of the type of 13 action that would dissuade a reasonable person from enforcing his rights. 14 On the other hand, a reasonable juror cannot conclude that the transfer to Old San Juan was 15 an adverse employment action. Natal has not proffered admissible facts showing that he assumed 16 a “less distinguished title,” or suffered “a material loss of benefits, significantly diminished 17 material responsibilities, or other indices that might be unique to a particular situation.” Morales- 18 Vallellanes, 605 F.3d at 36 (internal quotation marks omitted). This case is also distinguishable 19 from Billings, where the plaintiff worked as a secretary for the Town administrator and was 20 transferred to the recreation department. 515 F.3d 39. There the First Circuit found an adverse 21 action after because the plaintiff was transferred to “an objectively less prestigious job, reporting 22 to a lower ranked supervisor . . . and requiring less experience and fewer qualifications.” Id. at 54. 23 24 30 Civil No. 16-1543 (GAG) 1 Here, Natal did not report to a lower ranked supervisor, and his position in Old San Juan had the 2 same requirements and qualifications as the one in Cataño. 3 Likewise, the 2016 written warning was not an adverse action for retaliation purposes. In 4 Billings, the plaintiff was admonished with “with two typed memoranda criticizing her failure to 5 follow particular instructions.” 515 F.3d at 54. The First Circuit held that this “amounts to the kind 6 of ‘petty slights or minor annoyances that often take place at work and that all employees 7 experience’ and that, consequently, fall outside the scope of the anti-discrimination laws.” Id. 8 (quoting Burlington Northern, 126 S. Ct. at 2415). But see Calero-Cerezo v. U.S. Dep’t of Justice, 9 355 F.3d 6, 25 (memorandum of admonishment was an adverse employment action). Moreover, 10 Natal has admitted his fault in the matter addressed by the memos, defeating any potential 11 argument that said action, even if adverse and causally related to his antidiscrimination charge, 12 was not based on a legitimate business reason and was pretextual. 13 3. Causation 14 Having established that Natal engaged in protected activity and suffered two adverse 15 employment actions—the suspension and negative job evaluation—Natal must prove that both are 16 causally connected to his protected activity. He tries to prove the necessary causal connection by 17 temporal proximity. “Temporal proximity can create an inference of causation in the proper case.” 18 Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 85 (1st Cir. 2006). But this temporal proximity 19 “must be very close.” Calero-Cerezo, 355 F.3d at 25 (quoting Clark County Sch. Dist. V. Breeden, 20 532 U.S. 268, 273-74). Three months can be considered “very close.” In Sanchez-Rodriguez v. 21 AT&T Mobility P.R., Inc., the First Circuit found temporal proximity when the plaintiff filed an 22 EEOC complaint in February and was disciplined in May. 673 F.3d 1, 15 (1st Cir. 2012). But see 23 Ramirez Rodriguez v. Boehringer Ingelheim Pharms., Inc., 425 F.3d 67, 84-86 (1st Cir. 2005) (two 24 31 Civil No. 16-1543 (GAG) 1 months was too remote). On the other hand, this Court has held that “seven months is too long to 2 prove a causal connection.” Caez-Fermaint v. State Ins. Fund Corp., No. 15-3050, 2017 WL 3 6452411, at *11 (D.P.R. Dec. 18, 2017). 4 Natal argues that Oriental retaliated against him on September 30 for refusing to terminate 5 Ortiz in March. It is undisputed that Ortiz was transferred to Cataño in March 2015, and Oriental 6 claims that Natal never had to reprimand Ortiz. (Dockets No. 49 ¶ 78; 61-1 ¶ 78). Natal qualifies 7 this by saying that “immediately upon assigning Ortiz,” he was instructed to issue warnings for 8 everything she did so that Oriental could discharge her because she was sick. (Docket No. 61-1 ¶ 9 78). According to Natal, he refused to comply. Id. Six months later he was suspended. This six 10 month gap between Natal’s opposition to allegedly unlawful activity and his suspension is too long 11 to prove causation by temporal proximity. 12 On the other hand, there is close temporal proximity between filing the antidiscrimination 13 charge and taking medical leave and the negative job evaluation. Natal filed the charge in October 14 and took medical leave in November. The negative evaluation occurred on December 31, 2015. 15 “[T]his proximity is close enough to suggest causation, especially given the inferences we must 16 draw in [Natal’s] favor.” Sanchez-Rodriguez, 673 F.3d at 15 (Plaintiff filed complaint in February 17 and was disciplined in May). 18 4. Burden-Shifting: Legitimate Business Reasons 19 Having established a prima facie case of retaliation as to the negative evaluation, the 20 burden shifts to Oriental to articulate a legitimate business reason for it. The undisputed facts show 21 that Oriental gave Natal a negative evaluation because he failed to complete the second part of his 22 training. (Docket Nos. 49 ¶ 30; 61-1 ¶ 30). This is a legitimate business reason for the negative 23 evaluation, so the burden shifts back to Natal to prove that it was pretextual. 24 32 Civil No. 16-1543 (GAG) 1 5. Pretext 2 Since Oriental provided a legitimate business reason, the burden shifts back to Natal to 3 show a genuine issue of material fact on the matter of pretext. “An employee can establish pretext 4 ‘by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the 5 employer’s proffered legitimate reasons such that a factfinder could infer that the employer did 6 not act for the asserted non-discriminatory reasons.’” Carreras, 596 F.3d at 37 (emphasis in 7 original) (citing Santiago-Ramos, 217 F.3d 46, 56 (1st Cir. 2000)). Natal does just that: qualifying 8 Oriental’s statement of fact, he clarifies that he failed to complete the training because he was 9 suspended when it happened. (Docket Nos. 49 ¶ 30; 61-1 ¶ 30). He also clarified that he tried to 10 take the training upon his return, but his supervisor did not allow him. Id. This is the type of 11 weakness, inconsistency, and incoherence that establishes pretext. A jury could view these facts 12 and conclude that Oriental wanted Natal to fail the evaluation and took steps to prevent him from 13 doing so, like scheduling it during his suspension and not allowing him to retake it when he 14 returned. 15 16 For these reasons, the Court DENIES Oriental’s motion for summary judgment on the issue of retaliation in the form of Natal’s negative job evaluation. 17 American with Disabilities Act: Discrimination and Reasonable Accommodation 18 Natal requests voluntary dismissal of his disability-based discrimination and reasonable 19 accommodation claims under the American with Disabilities Act and Law 44. Therefore, the Court 20 GRANTS Oriental’s motion for summary judgment on these issues and DISMISSES Natal’s 21 ADA and Law 44 claims with prejudice. 22 23 24 33 Civil No. 16-1543 (GAG) 1 Supplemental Jurisdiction 2 Natal asserts causes of action under local Laws 100, 44, 115, and 45 as well as Articles 3 1802 and 1803 of the Puerto Rico Civil Code. The only surviving cause of action under local law 4 is that of Law 115, Puerto Rico’s antiretaliation statute. 5 1. Law 100 6 Law 100 prohibits discrimination on the basis of age, and the First Circuit has held that “on 7 the merits, age discrimination claims asserted under the ADEA and under Law No. 100 are 8 coterminous.” Dávila v. Corp. De P.R. Para La Difusión Pública, 498 F.3d 9, 18 (1st Cir. 2007). 9 Since the Court granted summary judgment on the ADEA cause of action, it GRANTS summary 10 11 judgment for the Law 100 cause of action as well. 2. Law 44 12 Law 44 is the ADA’s local counterpart, for everything but retaliation. Natal asks the Court 13 to dismiss this cause of action (Docket No. 61 at 1), therefore the Court GRANTS summary 14 judgment in Oriental’s favor. 15 16 17 18 3. Law 115 Law 115 is Puerto Rico’s antiretaliation statute. Because Natal’s retaliation claim survives summary judgment, the Court DENIES summary judgment for Law 115 claims as well. 4. Law 45 19 Oriental points out that Natal did not assert any claims under Law 45, despite mentioning 20 it in his complaint. (Docket No. 48 at 22). Oriental did not respond. Thus, the Court GRANTS 21 summary judgment on this claim also. 22 23 24 34 Civil No. 16-1543 (GAG) 1 5. Article 1802 and 1803 2 Article 1802 is Puerto Rico’s general tort statute, which provides that a person who “causes 3 damages to another through fault or negligence” shall be liable in damages. P.R. LAWS ANN. tit. 4 31 § 5141. In turn, Article 1803 applies the principle of respondeat superior to Article 1802 claims. 5 P.R. LAWS ANN. tit. 31 § 5142; Pagán–Cólon v. Walgreens of San Patricio, Inc., 697 F.3d 1, 16 6 (1st Cir. 2012). “To the extent labor legislation has created new causes of action to address 7 previously uncovered aspects of employment relationships as in the case of discrimination and 8 retaliation, it has been subjected to the same remedial exclusivity principle barring redress under 9 general statutes such as Article 1802 of the Civil Code.” Santana-Colon v. Houghton Mifflin 10 Harcout Pub. Co., 81 F. Supp. 3d 129, 141 (D.P.R. 2014) (emphasis added). Therefore, since the 11 only surviving cause of action is retaliation, the remedies under Article 1802 and 1803 are barred 12 and the Court GRANTS summary judgment in Oriental’s favor. 13 14 15 VI. Conclusion In light of the lengthy discussion above, the Court GRANTS in part and DENIES in part Oriental’s motion for summary judgment. 16 SO ORDERED. 17 In San Juan, Puerto Rico this 23rd day of January, 2018. 18 s/ Gustavo A. Gelpí GUSTAVO A. GELPI 19 United States District Judge 20 21 22 23 24 35
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
