152 F.3d 17 (1st Cir. 1998), 97-2229, Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co.

Docket Nº:97-2229.
Citation:152 F.3d 17
Party Name:Jose R. ALVAREZ-FONSECA, Plaintiff-Appellant, v. PEPSI COLA OF PUERTO RICO BOTTLING COMPANY, Defendant-Appellee.
Case Date:August 05, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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152 F.3d 17 (1st Cir. 1998)

Jose R. ALVAREZ-FONSECA, Plaintiff-Appellant,



No. 97-2229.

United States Court of Appeals, First Circuit

August 5, 1998

Heard Feb. 24, 1998.

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Juan Rafael Gonzalez-Munoz, with whom Gonzalez-Munoz & Quinones-Tridas was on brief for appellant.

Graciela J. Belaval, with whom Mart¡nez, Odell & Calabria was on brief for appellee.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and SELYA, Circuit Judge.

TORRUELLA, Chief Judge.

Plaintiff-appellant Jose R. Alvarez-Fonseca sued his former employer, defendant-appellee Pepsi Cola of Puerto Rico Bottling Company, under the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621-34 (1985 & Supp.1996), and the Puerto Rico Anti-Discrimination Act (also known as Law 100), P.R. Laws Ann. tit. 29, §§ 146, alleging that he was fired because of his age. After trial, the jury returned a verdict for Alvarez on both claims. The district court, however, granted Pepsi's renewed motion for judgment as a matter of law, set aside the jury's verdict, and entered judgment dismissing the complaint. We affirm.

I. Background

Early in the workday on October 13, 1993, Alvarez got into a fist-fight with another employee. Alvarez was eventually discharged. The fundamental question in this case is whether Alvarez was fired because of his age, or because of his involvement in the fight. We recite the underlying facts in the light most favorable to the jury's verdict. See Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir.1994).

Alvarez, the plaintiff, worked for Pepsi for thirty-four years, having been hired on October 2, 1959, at the age of 20, and rising ultimately to the position of Production Line Supervisor of the canning line. At the time of the incident that gave rise to this case, Alvarez was 54 years old, and the oldest of the four production supervisors. During the years that he worked for Pepsi, Alvarez performed his duties in a satisfactory manner. However, Alvarez was also known for his temper tantrums at work, commonly used obscene language there, and had been involved in at least two other fights at the plant.

Alvarez reported to work at 5:00 A.M. on October 13, 1993. It was his first day of work after a two-week vacation, and he soon discovered that there were various problems that required his attention. When the production line started, he noticed that the packing machine, which forms cardboard cartons that hold cans of Pepsi Cola, was producing defective cartons. He concluded that the cardboard being used was of sub-standard quality. He was also short one employee, who was absent without explanation. Alvarez became upset at finding matters in such disarray upon his return from vacation. Some time afterwards, Alvarez spoke with Wilfredo Cordero, the Materials Manager, 1 to complain in uncouth, expletive-rich language about the management style of Jose Almeida, the Production Manager, who had been Alvarez's immediate superior since 1979.

Around 7:00 A.M., Alvarez crawled under the packing machine to remove some cardboard from it. Around 7:30 A.M., Almeida arrived on the premises. When he noticed that Alvarez was operating the machine, Almeida reprimanded him for doing so, reminding Alvarez that company procedure indicated that supervisors should not perform such work. Alvarez explained that he had to operate the machine because he was short one employee and the operator was in the bathroom. Almeida responded, however, by pointing out that during Alvarez's vacation, the work had been performed by one operator,

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without a supervisor, which suggested that supervisors did not need to operate the machines. Alvarez retorted that Almeida's failure to supervise effectively was precisely the reason why the production line had continued to use inferior quality cardboard.

Shortly thereafter, when Cordero approached Alvarez, the latter complained to him that there was a problem with the quality of the cardboard, and pointed to the pile of defective cartons that had been produced that morning. As Materials Manager, Cordero was in charge of purchasing cardboard for use in the packing machine. An argument ensued, and Cordero told Alvarez that he was senile. Alvarez responded by throwing a piece of cardboard at Cordero, which hit him on the chest, and telling Cordero to see whether the piece of cardboard was any good. The argument escalated, and Cordero told Alvarez that he was ill-bred and belligerent. Cordero also said that he would figure out a way to have Alvarez fired. The Production Manager, Almeida, returned at that point and, after asking what was going on, told Alvarez to just go home, noting that he was getting into an argument, as usual. Cordero then asked Almeida to talk to the Plant Manager, David Cuthberson, to have Alvarez fired.

The argument became physical at that point, and other Pepsi employees intervened to attempt to break up the altercation. Alvarez threw an object at Cordero, which struck him on the face and made his lower lip bleed. Alvarez and Cordero fell to the floor in the course of pushing and shoving each other. Cordero tried to overcome Alvarez, but was restrained by other employees. While Cordero was being held by others, Alvarez punched him on the forehead. Finally, a security guard arrived and ordered both Alvarez and Cordero to leave the premises immediately.

Pursuant to Pepsi procedures, Almeida immediately prepared a contact sheet that documented the incident. He wrote that Alvarez had demonstrated "aggressive conduct against a fellow worker without considering the consequences caused by his conduct, that he was engaged in a fight."

Pepsi conducted an investigation of the incident. On October 16, 1993, the Personnel Director, Vanessa Boneta, held a meeting with both Alvarez and Cordero, and asked them to present their versions of what had happened. Alvarez admitted having provoked the incident, asked Cordero for forgiveness, and stated that he felt "repentant and sad for what [he] had done." Boneta advised Alvarez that he could be fired or suspended for his conduct. Pursuant to its workplace safety rules, Pepsi reserved its right to suspend or fire an employee who instigated a fight, threatened others with aggression, or became involved in physical horseplay. Alvarez admits that he has been involved in several violent episodes at work over the years, explaining that it is sometimes necessary to use force in order to maintain discipline.

After the meeting, Cordero was suspended without pay for thirty days, but no further disciplinary action was taken against him. At the end of the thirty-day period, he returned to work as Materials Manager. Alvarez, however, was suspended for sixty days. He admits that he could have been fired, but notes that Pepsi chose merely to suspend him, in consideration of the many years that he had worked there. It was the first time that he had ever been suspended from work.

During the suspension period, Alvarez became depressed, nervous, and his blood pressure, which had risen dangerously before his vacation, rose again. He thus sought treatment from the State Insurance Fund. His condition improved some time soon after the sixty-day period ended, and he received a medical certificate stating that he was able to work, although he continued under the supervision of the State Insurance Fund. He reported to work in early January 1994, but although Pepsi then renewed payment of his salary, Boneta told him that he could not start working again until he had obtained another medical certificate, this time from a physician designated by Pepsi. He complied with this request, and returned with the second certificate on January 11, 1994. Boneta, however, instructed Alvarez to return home and wait until further notice from Pepsi.

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For the next few weeks, Alvarez and Boneta remained in contact, but nothing concrete resulted either from Boneta's calls to Alvarez, or from Alvarez's visits to her office. In February 1994, Alvarez met with Boneta and the Plant Manager, David Cuthberson. At that meeting, Alvarez was offered an early retirement plan. According to the offer, Pepsi would continue to pay his salary until December 31, 1994, if he agreed to retire early, on May 15, 1994, the date of his 55th birthday. 2 The company would process his early retirement on that date, and permit him to liquidate his accumulated vacation pay. The following month, in addition to his regular salary, he would begin to collect a pension payment of $392.39 per month for the rest of his life.

Alvarez, however, rejected the offer. Instead, he and his attorney submitted a counterproposal for early retirement. Upon receipt of this proposal, Pepsi ordered a new investigation of the October 13, 1993, incident. Alvarez refused to participate in the new investigation.

Nothing else happened until August 8, 1994, when the State Insurance Fund released him, having concluded that his condition was not related to work. Later that month, Pepsi's payroll records were changed to reflect Alvarez's separation from Pepsi, and Pepsi stopped paying Alvarez his salary. Alvarez never tendered his resignation to Pepsi, nor did Pepsi give him notice that he had been discharged.

On August 16, 1995, Alvarez filed the instant suit against Pepsi in the U.S. District Court for the District of Puerto Rico, bringing claims under the ADEA and Puerto Rico Law 100 on the basis of the allegation that the disparate treatment in the disciplinary measures imposed by Pepsi on Cordero and Alvarez was motivated by discriminatory age animus. A one-day jury trial was held on February 13, 1997. At the end of the plaintiff's case, Pepsi moved for a...

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