Perez v. Doctors' Ctr. Bayamon

ANGEL MITCHELL NIEVES PEREZ, Plaintiff,

v.DOCTORS' CENTER BAYAMON, Defendant.

Civil No. 09-2212 (GAG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

May 16, 2011

OPINION AND ORDER

Plaintiff Angel Mitchell Nieves Perez ("Plaintiff") brings this action against defendant Doctors' Center Bayamon ("DCB" or "Defendant") alleging retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. Plaintiff also invokes the supplemental jurisdiction of this court to bring claims alleging violations of Puerto Rico Law 80 of May 30, 1976, P.R. Laws. Ann. tit. 29, § 185(a) ("Law 80"); Puerto Rico Law 100 of June 30, 1959 ("Law 100"), P.R. Laws Ann. tit. 29, §§ 146 et seq.; Puerto Rico Law 115 of December 20, 1991 ("Law 115"), P.R. Laws Ann. tit. 29, § 194a; and Article 1802 and 1803 of the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31, §§ 5141-42.

Presently before the court are Defendant's motion for summary judgment (Docket No. 29) and Plaintiff's motion to strike (Docket No. 46). The court has been thoroughly briefed on each of these motions (Docket Nos. 25, 43, 44, 66, 65, 67). After reviewing the parties submissions and pertinent law, the court DENIES¹ Plaintiff's motion to strike (Docket No. 46) and GRANTS in part and DENIES in part Defendant's motion for summary judgment (Docket No. 29).

I. Legal Standard

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "An issue is genuine if 'it may reasonably be resolved in favor of either party' at trial, and material if it 'possess[es] the capacity to sway the outcome of the litigation under the applicable law.'" Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (citations omitted). The moving party bears the initial burden of demonstrating the lack of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325. "The movant must aver an absence of evidence to support the nonmoving party's case. The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and give that party the benefit of any and all reasonable inferences. Id. at 255. Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the non-moving party's case rests merely upon "conclusory allegations, improbable inferences, and unsupported speculation." Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir. 2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003)).

II. Factual and Procedural Background

Plaintiff began working as a security guard with Bayamon Family Hospital² in 1999. He was born on February 1st, 1956 and was fifty-two (52) years old at the time his employment wasterminated by Defendant on May 30, 2008. During his employment with DCB, Plaintiff performed a number of jobs including: security guard, cook, chauffeur, and parking attendant. As an employee assigned to the parking lot, Plaintiff was responsible for the vehicles entering and exiting the parking lot as well as the proper use of the parking lot by the hospital's visitors. He was also in charge of collecting parking fees, and tallying the fees with the tickets at the end of his work shift. Throughout his employment, Plaintiff received a commendable evaluation, receiving an overall score of 3.39 on a 3.99 scale. His personnel record contains no disciplinary actions taken against him during his tenure with DCB.

While working for DCB, Plaintiff alleges that he was subjected to multiple discriminatory remarks related to his age. Plaintiff specifically remembers remarks such as "we don't want an old person here," as well as jokes regarding his retirement pension. On May 15, 2008, as a result of these alleged remarks, Plaintiff filed claims with the Equal Employment Opportunity Commission ("EEOC") and the Local Anti-discrimination Unit ("ADU") alleging that he had been subjected to age discrimination in his employment. The allegations specifically named Plaintiff's coworker, Jean Padilla ("Padilla"), as the declarant of the aforementioned statements. He informed his supervisor Belgui Nieves³ ("Nieves") that he had filed said claims. Subsequent to the filing of these claims Plaintiff's employment was terminated.⁴ Accordingly, he amended his original claims to include an allegation of retaliation against Defendant for having terminated his employment for submitting a charge of discrimination. The EEOC determined that the evidence presented by Plaintiff established a violation under the ADEA, specifically finding that Plaintiff's termination constituted a retaliatory act of discrimination under the ADEA.

Defendant contends that the decision to terminate Plaintiff's employment was part of an overall restructuring plan in which the parking lot operations were "outsourced" to a privatecompany named M.T.I.⁵ There was no written contract documenting the outsourcing of these services. According to Defendant, M.T.I. then contracted another entity, Alberca Inc., ⁶ to be in charge of the recruiting and hiring of new personnel for the parking operator positions. Two individuals were hired to handle the duties that had been done by Plaintiff and Ramon Ramos ("Ramos")-the two parking lot operators that had been terminated when the services were allegedly outsourced to M.T.I. The new operators were named Eduardo Rivas ("Rivas") and Jorge Ortiz ("Ortiz"), ages thirty-five (35) and thirty-three (33), respectively, at the time they were hired. Neither Plaintiff nor Ramos were offered the opportunity to interview for these positions with M.T.I. Nieves remained in a supervisory role over the new parking lot employees.⁷ Following M.T.I's retention of the parking lot services, M.T.I. continued to utilize the same parking tickets (containing the name of the hospital). Defendant's reception clerks also began collecting the parking fees.⁸ Following the outsourcing of these services, Defendant continued to hire security guards, however none of these new employees were hired specifically as parking attendants.⁹

III. Discussion

A. Plaintiff's ADEA Claim

The ADEA makes it unlawful for an employer to "fail or refuse to hire or discharge any individual or otherwise discriminate against any individual... because of such individual's age." 29 U.S.C § 623(a)(1). "In addition to prohibiting age discrimination, the ADEA also protects individuals who invoke the statute's protections." Ramirez-Rodriguez v. Boehringer Ingelheim Pharmaceuticals, Inc., 425 F.3d 67, 84 (1st Cir. 2005) (citing 29 U.S.C. § 623(d)). Even if a plaintiff's age discrimination claim fails, he may still assert a retaliation claim under the ADEA. Sanchez-Medina v. Unicco Service Co., 2010 WL 3955780 at *9 (D.P.R. Sept. 30, 2010) (citations omitted).

"To make out a prima facie case of retaliation under the familiar burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03 (1973), the plaintiff must prove that (1) he or she engaged in protected activity under the ADEA, (2) he or she suffered an adverse employment action, and (3) the adverse employment action was causally connected to the protected activity." Collazo v. Bristol-Myers Squibb Mfg., Inc.,617 F.3d 39, 46 (1st Cir. 2010) (citing Fantini v. Salem State College, 557 F.3d 22, 32 (1st Cir. 2009)). Once this prima facie case of retaliation is shown, a presumption of discrimination arises and the burden of production then shifts to the employer to show a "legitimate, non-discriminatory reason" for the adverse employment action. Collazo, 617 F.3d at 46 (1st Cir. 2010). If the defendant meets this burden of production, the burden then shifts back to the plaintiff to show that the proffered reason is actually pretextual, and the employment decision was the result of defendant's retaliatory animus. Roman v. Potter, 604 F.3d 34, 39 (1st Cir. 2010).

With regard to the elements of the prima facie case, an individual engages in protected conduct when he or she "has opposed any practice made unlawful by [ADEA], or... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigationunder [ADEA]." 29 U.S.C.A. § 623(d). As to the second prong, plaintiffs must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Delanoy v. Aerotek, Inc., 614 F. Supp. 2d 200, 210 (D.P.R. 2009) (citations omitted) (internal quotation marks omitted). "The alleged retaliatory action must be material, producing a significant, not trivial, harm." Id. (quoting Carmona-Rivera v. Commonwealth of Puerto Rico, 464 F.3d 14, 19 (1st Cir. 2006)). The First Circuit has considered demotions, disadvantageous transfers or assignments, refusals to promote and unwarranted negative job evaluations as adverse employment actions. Id. (quoting Marrero v. Goya of Puerto Rico, Inc., ...