Ramirez Rodriguez v. Boehringer Ingelheim

• Decision Date: 07 October 2005
• Docket Number: No. 04-2584.,04-2584.
• Citation: 425 F.3d 67
• Parties: Bolívar RAMÍREZ RODRÍGUEZ, Plaintiff, Appellant, v. BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

425 F.3d 67

Bolívar RAMÍREZ RODRÍGUEZ, Plaintiff, Appellant, v. BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., Defendant, Appellee.

No. 04-2584.

United States Court of Appeals, First Circuit.

Heard June 6, 2005.

Decided October 7, 2005.

COPYRIGHT MATERIAL OMITTED

Godwin Aldarondo-Girald, with whom Aldarondo Girald Law Office was on brief, for appellant.

Gregory T. Usera, with whom Lourdes C. Hernández-Venegas and Schuster Usera & Aguiló LLP were on brief, for appellee.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant Bolívar Ramírez Rodríguez (Ramírez) filed an age discrimination claim against his former employer, Boehringer Ingelheim Pharmaceuticals, Inc. (BIPI), pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and Puerto Rico law. The district court granted summary judgment for BIPI on the ground that Ramírez had not established a prima facie case of discrimination. Alternatively, even if he had made such a case, the district court ruled that he had not presented sufficient evidence for a jury to find that BIPI's proffered non-discriminatory reason for terminating him was pretextual. On appeal, Ramírez challenges the summary judgment order, as well as an array of rulings by the district court on evidentiary issues. We affirm on the alternative ground set forth by the district court.

I.

We take the following facts from the summary judgment record, presenting them in the light most favorable to the appellant and drawing all reasonable inferences in his favor. See Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 431 (1st Cir.2005).

Ramírez was born on March 23, 1951. He worked as a professional sales representative (PSR) for BIPI from November 1, 1977 to August 15, 2001, when he was terminated. As the district court explained, Ramirez's "principal activity" as a PSR was "promoting [BIPI's] products by conducting visits to physicians, hospitals, and pharmacies, educating health professionals about [BIPI's] products, and providing product samples." Ramírez, like all of the PSRs, was assigned to a particular geographic territory. At the time of his termination, he was assigned to the southwest region of Puerto Rico. Relevant to this case, BIPI policy requires PSRs to obtain a signed Sample Signature Document (SSD) each time they provide drug samples to a doctor. The SSD must be completed in full in the PSR's presence. BIPI's sampling policy is designed to comply with the requirements of the Prescription Drug Marketing Act (PDMA), 21 U.S.C. §§ 301 et seq.¹

Before 1999, Ramírez routinely received positive performance evaluations for his work. In his 1999 evaluation of Ramírez,² district manager Valeriano García (García) — the BIPI District Manager for Puerto Rico and Miami, and Ramírez's direct supervisor — rated Ramírez as meeting expectations in most areas. However, García also raised several concerns about Ramírez's performance. Specifically, García noted that Ramírez "[d]id not call on [doctors in his territory] other than [in] Ponce and Mayagüez," that he "[d]id not follow 4 week cycle plan [for visiting doctors] as instructed," and that he was "[o]ver-sampling targets and non-targets."³ García noted similar concerns, in more detail, in an email he sent on January 31, 2000 to Antonio Hernández, another District Manager in Florida, and Noel Díaz, who was slated to assume García's duties in the Commonwealth in the newly-created position of District Manager for Puerto Rico. Although Ramírez questioned the basis for these concerns when he received his evaluation, the record does not indicate that he pursued his objections any further.

Díaz became the District Manager for Puerto Rico, and therefore Ramírez's direct supervisor, on February 28, 2000. In March 2000, BIPI informed Ramírez and the other PSRs that it was restructuring the Puerto Rico sales region to accommodate an expansion in the size of the sales force, i.e., an increase from 5 PSRs to 7 PSRs. As a result of the restructuring, Ramírez lost the city of Ponce and gained the municipality of Arecibo.

Also in March 2000, Díaz asserted that Ramírez had failed to timely renew his car registration and driver's license and therefore was driving his company car without valid documentation. As a result of Díaz's assertion, Ramírez also received an admonishing email from Larry Wood, BIPI's Regional Director for the Southeast Region. Ramírez responded by submitting evidence that he had renewed both his license and registration on time. In a letter to Wood, Ramírez described the accusations as "baseless and only launched with ulterior motives as part of a personal agenda to terminate my employment."

On April 5, 2000, while the dispute regarding the license and registration was ongoing, Ramírez suffered a stroke. Attributing the stroke to the stress of an argument with Díaz, Ramírez applied for treatment under the State Insurance Fund, Puerto Rico's workmen's compensation program.

On April 6, 2000, Díaz reported to Wood additional concerns about Ramírez's sampling practices. Specifically, in an email to Wood, Díaz reported that (1) Ramírez's physician database was composed largely of primary care physicians rather than the sub-specialists who would be expected to receive a large proportion of samples, (2) 50% of the physician listings in the database had only postal, not physical, addresses, and (3) Ramírez did not appear to be contacting important specialized physicians. Díaz also reported talking to two cardiologists who had asked Ramírez not to return to their offices after he asked them to sign confirmation documents, i.e., SSDs, that overstated the number of samples that he had provided. In the email, Díaz speculated that Ramírez was "maintain[ing] a base of physicians that allow him to dump large amounts of samples. In return he gets four or five signed slips without date. He then allocates the signed slips on a monthly basis and enters them accordingly to the system." Díaz also expressed concerns about Ramírez's storage of samples.

On May 8, 2000, Wood sent a letter instructing Ramírez to move his samples within five days from his mother's house to a commercial storage facility. Acknowledging that Ramírez was on short-term disability leave, Wood offered to arrange for the samples to be moved if Ramírez was unable to transport them himself. At the time, Ramírez was the only PSR in Puerto Rico who did not store his samples in a commercial facility. In a letter dated May 19, 2000, Ramírez responded that his previous District Manager had approved the storage arrangement. In the letter, Ramírez also noted that he felt "persecuted, harassed and discriminated by Mr. Noel Díaz because of my age and time with the company."⁴ Wood replied to Ramírez's letter on June 9, 2000. He assured Ramírez that he would investigate the claims of persecution, harassment and discrimination, but reiterated that Ramírez had to move his samples. Wood also cautioned that "failure to follow my directive may constitute insubordination, which can result in disciplinary action up to, and including, termination." Ramírez ultimately moved the samples.

Wood and Ramírez met on July 13, 2000 to discuss Ramírez's complaints of harassment and discrimination. In a letter dated September 19, 2000, Wood indicated that "both prior and subsequent to our July 13th meeting, I conducted an investigation of your allegations of discrimination and harassment. Please be advised that after careful investigation, I found no support for your allegations that you have been subject to discriminatory or harassing behavior by [Díaz] or by any Company employee."

On October 6, 2000, BIPI informed Ramírez that he would be laid off as of October 13, 2000 because his short-term disability benefits were expiring and he had not "provided documentation that enables [his] return to work." On October 10, 2000, Ramírez informed Díaz that he had received authorization from the State Insurance Fund to return to work the following day. Accordingly, Ramírez returned to work from short-term disability leave on October 11, 2000.

Díaz, Hernández, and Wood met with Ramírez on October 20, 2000 to outline a series of directives with which Ramírez had to comply upon returning to work and to establish deadlines for completion of those directives. On May 10, 2001, Díaz informed Wood that he and Hernández had visited several doctors in Ramírez's sales territory and that the doctors had reported irregularities in Ramírez's sampling practice. According to Díaz, the doctors reported that Ramírez left blank SSDs to be signed outside his presence or asked them to sign undated SSDs, both violations of BIPI policy, which is designed to ensure compliance with federal regulations.

Also on May 10, 2001, Ramírez asserted that pursuant to an order by Díaz, he had not received any literature or promotional materials since December 2000. In a letter to Wood, Díaz responded that he had arranged to stop delivery of promotional materials and samples to Ramírez while he was on short-term disability leave. Díaz maintained that Ramírez "started to receive his normal shipments" upon his return to work in October 2000 and that he did not know why Ramírez had not received his December 2000 order. Díaz also indicated that he had again arranged to stop delivery of samples and material to Ramírez as of May 10, 2001 based on the doctors' reports regarding Ramírez's sampling practices.

On June 13, 2001, Ramírez filed a claim with the Anti-Discrimination Unit of the Puerto Rico Department of Labor (ADU), alleging that Díaz

began a series of harassing acts against me [in February 2000]... due to my age. These acts on the part of the company, by means of [Díaz and Wood], consisted in changing my sales region in a manner which was disadvantageous to myself ...; forcing to change the place of storing my samples to Ponce, in spite of the fact that my residence and seat of operations is in...