519 F.3d 41 (1st Cir. 2008), 07-1341, Torrech-Hernandez v. General Elec. Co.

Docket Nº:07-1341.
Citation:519 F.3d 41
Party Name:N
Case Date:March 07, 2008
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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519 F.3d 41 (1st Cir. 2008)

Néstor M. TORRECH-HERNNDEZ, Plaintiff, Appellant,


GENERAL ELECTRIC COMPANY, Caribe Ge International Electric Meters Corp., Defendants, Appellees.

No. 07-1341.

United States Court of Appeals, First Circuit.

March 7, 2008

Heard Nov. 5, 2007.


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[Copyrighted Material Omitted]

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Manuel Durán, with whom Manuel Durán Law Office was on brief, for appellant.

Carl Schuster, with whom Lourdes C. Hernández-Venegas, and Schuster Aguiló LLP, on brief, for appellees.

Before TORRUELLA, BALDOCK, [*] Circuit Judges, and SMITH, [**] District Judge.

SMITH, District Judge.

In this age discrimination case, Plaintiff-appellant Néstor M. Torrech-Hernández ("Torrech"), a former plant manager for Defendant-appellees General Electric Company and Caribe GE International Electric Meters Corporation (collectively "GE"), challenges the entry of summary judgment in favor of his former employer, GE. Having conducted a careful de novo review, and discerning no reversible error, we affirm albeit on grounds different than the District Court.


Over the course of his twenty-eight year career at GE, Torrech held various positions within company, including plant manager at several GE facilities in Puerto Rico. In July 2000, then-President and General Manager of Caribe GE Paul Sledzick appointed the forty-nine year-old Torrech, who was at that time plant manager at GE's Vega Baja plant, to run the GE facility in Humacao. Torrech's appointment to Humacao, while not a promotion, involved running a larger plant with more employees and included a more complicated and varied production scheme. Because of Humacao's size and its role in GE's Puerto Rican market, the job of Humacao plant manager was akin to managing

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three different plants within one facility. Just as with each of his previous plant manager positions, at Humacao Torrech ultimately was responsible for his plant's operations and overall results.

In April of the following year, after a short transition period, Jeff Sommer replaced Sledzick as President and General Manager of Caribe GE. During his transition period, Sommer familiarized himself with the plants under his authority, the challenges facing those plants, and plans for improvement. Based on his observations, Sommer believed that the operations in GE's Puerto Rico plants needed to improve in five areas ("matrices" in GE jargon): service, cost out, quality, inventory and environmental health and safety. As to the Humacao location in particular, Sommer concluded that the plant was struggling in all five matrices and lagging behind the other sites. Sommer communicated his concerns and plans for improvement to Torrech, specifically his expectations as to service and productivity improvement. Torrech considered Sommer's plans for improvement to be good business ideas.

Nevertheless, over the course of Sommer's first few months as President and General Manager, it became clear that despite Torrech's professed agreement with Sommer's ideas, he was neither implementing the improvement plans nor meeting Sommer's expectations. Despite his claim that the Humacao plant was meeting, if not exceeding, company expectations during his time as plant manager, Torrech admitted that his work was not what he wanted it to be. In his deposition, Torrech described his performance as having its "ups and downs," and agreed that during his time as plant manager, Humacao experienced numerous shut downs. At the same time, however, Torrech insisted that under his lead, Humacao was generally on an upward trend. However, to others, it was apparent that Torrech was resistant to change and new ideas.

Torrech complains of several incidents occurring in the months following Sommer's arrival in Puerto Rico as being directly related to what he perceived to be GE's hostility towards older workers. On the evening of Sledzick's retirement party, held at a local hotel, Roger Gasaway, to whom Sledzick reported in GE's corporate division, remarked to Torrech that there was a perception at GE that Torrech lacked the energy level he once had. Several weeks later, on April 18, 2001, while touring the Humacao plant, Sommer made a similar remark, commenting on Torrech's lack of energy. Torrech did not ask Gasaway or Sommer what they meant by their comments. Rather, Torrech assumed the comments referred to lack of intensity or enthusiasm. He connects these characteristics to age by noting that "normally when you grow old you grow slower." At the same time, Torrech acknowledges his familiarity with the "Four E's," consisting of "Edge," "Energy," "Excellence," and "Energized," a common mantra in GE company jargon.

Torrech similarly attributes age-based animus to a comment made by Sommer during a meeting at the Hard Rock Café in Old San Juan. According to Torrech, who cannot recall the context of the statements, Sommer generally referred to the staff as "dinosaurs." Torrech inferred from the comment that Sommer felt he and other employees were "old, sluggish, obsolete, you know, outdated." Another staff member in attendance, Nora Henríquez, a human resources manager, recalls that Sommer made the "dinosaur" comment in response to an inquiry about how the corporate headquarters viewed the Puerto Rico operations. According to Henríquez, Sommer used the term when

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explaining the perception that the organization was less automated than others, that it was not implementing change in the same manner as other operations, and that it appeared resistant to new initiatives.

The final incident complained of by Torrech took place on June 18, 2001. During a tour of the Humacao facility, in a particularly warm section of the plant, Sommer pointed to an employee, described by Torrech as an "old person," and stated: "You see that person? In Vega Baja no longer -- nobody no longer walks that slow." Torrech retorted "In Vega Baja nobody sweats like that." Later, in Torrech's office, Sommer indicated that he was not happy with how the plant was being run, and that if he did not see improvement, he would implement changes himself. Although Sommer never explicitly referenced Torrech's performance as plant manager or mentioned the age of any GE employee, Torrech interpreted Sommer as speaking specifically about him, and, further, that Sommer was implying that he wanted to replace Torrech with a younger employee.

In the evening after the conversation, Torrech called Henríquez and asked whether there were any plans to replace him. Although Henríquez denied that there were any such plans, Torrech volunteered to her that he would be willing to leave GE "peacefully" if offered a severance package. Henríquez contacted Sommer to inform him about Torrech's call. Without ordering or authorizing Torrech's termination, Sommer responded that they should analyze the situation and identify what Torrech wanted. After Torrech's phone call, and after getting the go-ahead from Sommer, Henríquez began to put together initial figures for a severance package. In the meantime, Sommer updated Gasaway about Torrech's phone call, indicated that they would begin to formulate an "exit plan" for Torrech, and identified Victor Aguilar, a thirty-three year-old long-term GE Caribe employee, as a possible replacement. At no time during the course of these or the preceding events did Torrech, who was well familiar with GE's anti-discrimination policy, complain of discrimination or utilize the internal procedures available to him.

Over the course of the next month, Henríquez began corresponding back and forth with Torrech about his severance package. On July 13, 2001, Henríquez sent to Torrech, via e-mail, a sample waiver form and proposed severance package. She explained to Torrech that she would soon follow up on other matters, including resignation announcements, and asked that Torrech get back to her with his thoughts. The following Monday, Torrech responded somewhat cryptically - -announcing his disappointment in the dollar value of the package, but neither rejecting the package nor commenting on its terms or on Henríquez's statement about his resignation. Several days later, Henríquez and Torrech reviewed together three possible severance packages. After e-mailing Torrech to inquire as to his thoughts on the proposals, Henríquez received the following response: "I need the money. It has to be $150k and on payroll until September 30, 2001. We can make the announcement tomorrow." Two days later, at 7:30 a.m. Henríquez sent to Torrech a draft organizational announcement, and sought his comments on it. Immediately after, and before the plant-wide e-mail was finalized or distributed, Torrech sent an e-mail to his staff and Henríquez announcing his retirement. An official announcement was released by human resources later that same day.

The following day, and after further discussions, Henríquez, apparently under the impression that Torrech had agreed to the terms offered by GE, sent him a confirmation

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e-mail with a final severance agreement. In that e-mail, Henríquez gave Torrech information about his tax obligations, stocks, and pension plan, and asked that he return certain company property. The next day, however, on July 25, 2001, Torrech responded curtly - -"I am not going to sign anything. Tell Jeff I will see him in court." Despite this declaration, Torrech requested an extension of time within which to consider GE's offer. By August 3, 2001, hearing no further response from Torrech, Henríquez wrote to Torrech and reiterated the company's final severance offer, gave him an additional week to consider the terms, and informed...

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