SOTO-VELEZ v. EL CONQUISTADOR RESORT The WALDORF ASTORIA COLLECTION

ANGEL SOTO-VELEZ, et al., Plaintiffs,

v.EL CONQUISTADOR RESORT THE WALDORF ASTORIA COLLECTION, Defendant.

Civil No. 09-2211 (GAG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Dated: March 31, 2011

OPINION AND ORDER

Plaintiffs Angel Soto-Velez, his wife Melinda Maldonado and the conjugal partnership composed by them ("Plaintiffs") bring this action against Defendant El Conquistador Resort The Waldorf Astoria Collection ("El Conquistador" or "Defendant") alleging age discrimination, hostile work environment and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.¹ Plaintiffs also bring state claims alleging violations of 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 of the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31, § 5141.

Presently before the court is Defendant's motion for summary judgment (Docket No. 40) and Plaintiffs' opposition (Docket No. 49). After reviewing the parties submissions and pertinent law, the court GRANTS El Conquistador's motion for summary judgment at Docket No. 40.

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 nogenuine 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

Angel Soto-Velez ("Soto-Velez") began working as a Food and Beverage Attendant for El Conquistador in 1996. (See Docket Nos. 41 ¶ 1; 49-1 ¶ 1; and 41-1.) He was later transferred to a "Bar Busperson" or "Bar Back" position. (See Docket Nos. 41 ¶ 2; 49-1 ¶ 2.) Soto-Velez was still employed as a Bar Back by El Conquistador at the time Defendant filed this motion for summaryjudgment.² (See Docket Nos. 41 ¶ 3; 49-1 ¶ 3.) As a Bar Back, Soto-Velez assisted hotel bartenders in the daily operation of the bar. (See Docket Nos. 41 ¶ 4; 49-1 ¶ 4; 41-3 at 1-2.) His duties included, among others, refilling ice chests, retrieving liquor, beer and wine from the storeroom, taking out the trash, and occasionally setting up the bar. Id.. It was within hotel management's prerogative to assign him additional tasks. (See Docket Nos. 41 ¶ 5; 49-1 ¶ 5.) Soto-Velez's duties have remained the same throughout his employment. (See Docket Nos. 41 ¶ 9; 49-1 ¶ 9.) He is eligible for promotions based on merit. (See Docket Nos. 41 ¶ 10; 49-1 ¶ 10.) The top of the pay scale for a Bar Back is $7.25 per hour. (See Docket Nos. 41 ¶ 12; 49-1 ¶ 12.) As of December 10, 2010, Soto-Velez earned $7.45 per hour. Id. Soto-Velez has had several disciplinary issues during the course of his employment at El Conquistador. (See Docket Nos. 41 ¶ 17; 49-1 ¶ 17.) On one occasion, instead of terminating him, the hotel gave him an ultimatum, advising him that further disciplinary issues would result in his termination. (See Docket Nos. 41 ¶ 21; 49-1 ¶ 21; 53-3 at 2.)

In November 2008, Soto-Velez reported to the State Insurance Fund ("SIF") for an alleged emotional condition. (See Docket Nos. 41 ¶ 24; 49-1 ¶ 24.) The SIF ultimately determined that no work-related accident had occurred, and that Soto-Velez's emotional condition, if any, was not related to his employment at El Conquistador. (See Docket Nos. 41 ¶ 25; 49-1 ¶ 25.)

In January 2009, Soto-Velez was announced as a possible witness in an age discrimination case brought by another hotel employee against El Conqusitador. (See Docket No. 49-10.)

As a result of a hotel restructuring in 2008, thirteen positions were eliminated. (See Docket Nos. 41 ¶ 30; 49-1 ¶ 30; 41-6 at 2.) Soto-Velez's Bar Back position was one of these. (See Docket No. 41-6 at 2.) Roberto Figueroa is another Bar Back at the hotel with more seniority than Soto-Velez, and is younger than 40 years of age. (See Docket No. 41-3 at 4 ¶ 18-19.) Due to seniority, Roberto Figueroa remained as a Bar Back at El Conquistador. (See Docket Nos. 41 ¶ 33; 49-1 ¶ 33.)

Soto-Velez was offered a "settlement, confidentiality, and general release agreement" when he returned from the SIF in March 2009. (See Docket Nos. 41-2 at 14; 49-7; 49-3 at 2.) ElConquistador's Director of Human Resources, Luis Alvarez, informed him that there had been a personnel reduction due to the economic recession. (See Docket No. 49-3 at 3.) Soto-Velez did not sign the agreement or accept severance because he thought not enough money had been offered. (See Docket Nos. 41 ¶ 39; 49-1 ¶ 39; 49-3 at 2.) A couple of days later he accepted a part-time position with El Conquistador. (See Docket No. 49-3 at 2.) Soto-Velez part-time position became effective on March 30, 2009. (See Docket No. 41-6 at 1.)

On June 19, 2009, Soto-Velez filed a charge of discrimination with Puerto Rico's Anti-Discrimination Unit ("ADU") and the Equal Employment Opportunity Commission ("EEOC") alleging age discrimination and retaliation by El Conquistador. (See Docket Nos. 41-10; 49-8 at 1; 53-4.) On December 13, 2009, Plaintiffs filed the present complaint claiming that Soto-Velez had been subjected to age discrimination as well as retaliatory conduct. (See Docket No. 1.)

III. Discussion

A. ADEA

1. Adverse Employment Action

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 assessing an ADEA claim where there is no direct evidence of discrimination, the court applies the burden shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (assuming that the McDonnell Douglas framework applies to an ADEA claim, and applying it to such a claim, "[b]ecause the parties do not dispute the issue."); Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1117 (1st Cir. 1993) (finding that in absence of direct evidence of age discrimination, an ADEA claim is governed by burden-shifting framework set forth in McDonnell Douglas).

A prima facie case for age discrimination under the ADEA, requires a plaintiff to prove: (1) that he was over 40 years old; (2) that he has met his employer's legitimate job expectations; (3) that the employer took adverse action against him and; (4) that the employer did not treat age neutrally or that younger persons were retained in the same position. See Phair v. New Page Corp., 708 F.Supp. 2d 57, 63-64 (1st Cir. 2010) (citing Goldman, 985 F.2d at 1117; Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 333 (1st Cir. 1997)). According to the First Circuit, a plaintiff's burden to demonstrate a prima facie case is relatively easy to meet. See Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004) (referring to a prima facie case as a "modest showing"); Zapata-Matos v. Reckitt & Colman, Inc., 227 F.3d 40, 44 (1st Cir. 2002) (describing it as "the low standard of showing prima facie discrimination").

Under the McDonnell Douglas burden shifting framework, once this prima facie case is shown, a presumption of discrimination arises and the burden of production then shifts to the defendant employer to show a "legitimate, non-discriminatory reason" for the termination. See Rathbun, 361 F.3d at 71. If the defendant satisfies its burden of production, the presumptions and burdens of the McDonnell Douglas framework are "no longer relevant." Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 447 (1st Cir. 2009) (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510 (1993)). "In such a situation, the plaintiff then has the full and fair opportunity to demonstrate, through presentation of his own case and through examination of the defendant's witnesses, that the proffered reason was not the true reason for the employment decision, . . . and that age was." Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 F.3d 17, 25 (1st Cir. 1998) (quoting St. Mary's...