Velez v. Thermo King De Puerto Rico, Inc.

• Decision Date: 16 October 2009
• Docket Number: No. 08-1320.,08-1320.
• Citation: 585 F.3d 441
• Court: U.S. Court of Appeals — First Circuit
• Parties: José VÉLEZ, Plaintiff, Appellant, v. THERMO KING DE PUERTO RICO, INC., Defendant, Appellee.

585 F.3d 441

José VÉLEZ, Plaintiff, Appellant, v. THERMO KING DE PUERTO RICO, INC., Defendant, Appellee.

No. 08-1320.

United States Court of Appeals, First Circuit.

Heard March 6, 2009.

Decided October 16, 2009.

Carlos M. Vergne-Vargas, for appellant.

Edwin J. Seda-Fernández, with whom Mariel Y. Haack was on brief, for appellee.

Before TORRUELLA, LEVAL,^* and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Plaintiff José Vélez appeals from a grant of summary judgment for his former employer, Thermo King de Puerto Rico, on his claims of age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 ("ADEA"), Puerto Rico Act No. 80, P.R. Laws Ann. tit. 29, § 185a ("Law 80"), and Puerto Rico Act No. 100, P.R. Laws. Ann. tit. 29, § 146 ("Law 100"). After careful review of the record, we vacate the entry of summary judgment and remand the case for further proceedings.

I.

We recite the background facts of this case and the underlying sequence of events that provide the context for this dispute. Subsequently, we discuss in more detail the facts necessary for our disposition of this appeal. Because this is an appeal from the entry of summary judgment, we recite the facts in the light most favorable to the non-moving party, the plaintiff Vélez. Mariani-Colón v. Dep't of Homeland Sec., 511 F.3d 216, 219 (1st Cir.2007).

Vélez worked for Thermo King from 1978 to 2002, when he was fired at the age of 56. At the time of his discharge, his position at the company was "Tool Crib Attendant," and he had been in that role for approximately eight years. As Tool Crib Attendant, he was in charge of maintaining, dispatching, and safeguarding the company's tools and maintenance materials, as well as preparing purchase requisitions for new tools and materials. Until shortly before his dismissal, his employment record with Thermo King was unblemished.

In September 2002, Vélez arrived at work to discover that the padlock securing an expensive chipping hammer had been broken and the hammer, which was worth over $1,000, was missing. He immediately reported the incident to management. Instead of reporting the theft to authorities, Thermo King hired private investigators to conduct an internal investigation into the disappearance of the chipping hammer as well as other irregularities with respect to its tools and materials. The internal investigation uncovered allegations that Vélez had stolen company property and sold it for his own profit.

Thermo King introduced into the summary judgment record an affidavit of its Human Resources Director, Steve Soto,¹ and internal records of the investigation and employee interviews. According to Thermo King, employee Alfredo Trinidad reported having paid Vélez $80 for four gallons of gray floor paint that were the property of Thermo King. Trinidad also admitted to facilitating the sale of four additional gallons of the floor paint to another employee, Blanca Figueroa-Díaz ("Figueroa"). He reported paying Vélez another $80 on Figueroa's behalf and arranging for the paint to be delivered to her home. Trinidad further reported purchasing from Vélez a Leatherman knife, which he believed to be the property of Thermo King and for which he paid $20, and said that Vélez had offered to sell him a paint spray gun for another $80 but that he had refused the offer. Trinidad also admitted to stealing an impact gun, soldering rods, an adjustable wrench, and other lightweight tools from Thermo King, and reported that another employee, Raúl Rivera, had also stolen tools. Other employees reported during the investigation that Trinidad had stolen several drills and other tools from Thermo King.

Investigators also spoke with Figueroa, who confirmed that she had bought four cans of paint from the plaintiff through Trinidad and that she had known that the paint was the property of Thermo King. Another employee, Víctor Quiles-Miranda ("Quiles"), told the investigators that Vélez had told him that he had a deal with a Thermo King supplier whereby the supplier would provide Vélez with Leatherman knives to sell in exchange for 50% of the sales revenue. Quiles also admitted to the investigators that he had stolen several tools, including screwdrivers, a roll of two-sided tape, pressure pliers, a crescent wrench, and a pipe wrench, and that when he was "in charge of the tool warehouse" he had "dispatched tools to several coworkers ... without them bringing in dispatch orders, aware that they were asking for them for their own personal use and not for Thermo King."

Vélez was interviewed last. He was asked whether he had ever taken and sold company property, specifically paint and Leatherman brand knives, for his own benefit. He denied doing so, although he admitted having received low-value items, such as caps, small knives, and pencils, from suppliers who left them in his guard station as gifts. He also admitted to occasionally selling the small, supplier-gifted knives to coworkers. About two weeks before his termination, Vélez met with Thermo King's human resources director, Steve Soto. During that interview, Vélez again admitted receiving gifts, such as "simple" knives, from suppliers, but denied receiving more expensive gifts such as Leatherman knives.

Vélez was terminated on November 11, 2002. At the time, Thermo King did not give him a reason for his termination. After his dismissal, Vélez timely filed a complaint of employment discrimination with the Puerto Rico Department of Labor's Anti-Discrimination Unit ("ADU") and the Equal Employment Opportunity Commission ("EEOC"). On December 20, 2002, Soto reported to the ADU that Vélez had been terminated because he had accepted gifts from Thermo King suppliers. On September 23, 2003, after a statutorily-required sixty-day period had passed and the parties were not able to come to a resolution, see 29 U.S.C. § 626(d)(1), the EEOC issued a right-to-sue letter.

Vélez initiated this suit against Thermo King on December 3, 2003, alleging violations of the ADEA and Puerto Rico Laws 80 and 100, and seeking injunctive relief, back pay, double compensatory damages, and liquidated damages. Thermo King responded to the suit by stating that it had fired Vélez because he had "received gifts, favors, services, gratuities, and products from Thermo King's suppliers and vendors without authorization of Defendant and in clear violation of a Company policy." Further, it stated for the first time that Vélez was fired because he had "sold Thermo King's property to other employees and admitted to Thermo King that he sold items received from vendors and suppliers."

On September 29, 2005, the district court adopted the report and recommendation of a magistrate judge and granted Thermo King's motion for summary judgment on all claims. We reversed that decision on the ground that the district court had failed to consider de novo, as it was required to do under 28 U.S.C. § 636(b)(1), the portions of the magistrate judge's report and recommendation to which Vélez had specifically objected. Vélez-Padro v. Thermo King De P.R., Inc., 465 F.3d 31, 32-33 (1st Cir.2006). On remand the district court reviewed de novo the objected-to portions of the report and recommendation and again granted summary judgment on January 3, 2008. This appeal followed.

II.

Summary judgment is properly granted where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the grant of summary judgment de novo. Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 42 (1st Cir.2002). In so doing, we "draw all reasonable inferences from the facts in plaintiff's favor." Id.

A. The ADEA and McDonnell Douglas

The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). As the Supreme Court recently clarified, plaintiffs must "establish that age was the `but-for' cause of the employer's adverse action." Gross v. FBL Fin. Servs., Inc., ___ U.S. ___, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009). As with other kinds of employment discrimination cases, however, ADEA plaintiffs rarely possess "smoking gun" evidence to prove their employers' discriminatory motivations. Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 218-19 (1st Cir.2008). "There will seldom be `eyewitness' testimony as to the employer's mental processes." U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). ADEA plaintiffs who do not have "smoking gun" evidence may nonetheless prove their cases by using the three stage burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).²

The first stage of the McDonnell Douglas framework requires a plaintiff to establish a prima facie case of employment discrimination. Id. at 802. In the context of an ADEA claim for discriminatory firing, this requires a plaintiff to show that: 1) he was at least 40 years old at the time he was fired; 2) he was qualified for the position he had held; 3) he was fired, and 4) the employer subsequently filled the position, demonstrating a continuing need for the plaintiff's services. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Arroyo-Audifred, 527 F.3d at 219. We have described this prima facie showing as "modest," Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st Cir.2004), and a "low standard," Zapata-Matos, 277 F.3d at 44.

A plaintiff who makes the prima facie showing is entitled to a presumption of age-based discrimination. The burden of production...