Rodríguez-Cardi v. MMM Holdings, Inc.

• Decision Date: 26 August 2019
• Docket Number: No. 18-1415,18-1415
• Parties: Carmen RODRÍGUEZ-CARDI, Plaintiff, Appellant, v. MMM HOLDINGS, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

936 F.3d 40

Carmen RODRÍGUEZ-CARDI, Plaintiff, Appellant,

v.MMM HOLDINGS, INC., Defendant, Appellee.

No. 18-1415

United States Court of Appeals, First Circuit.

August 26, 2019

Juan R. Dávila-Díaz, Hato Rey, PR, with whom Enrique J. Mendoza-Méndez, San Juan, PR, and Mendoza Law Offices, were on brief, for appellant.

Katherine González-Valentín, with whom Patricia M. Marvez-Valiente and Ferraiuoli LLC were on brief, for appellee.

Before Howard, Chief Judge, Torruella and Barron, Circuit Judges.

TORRUELLA, Circuit Judge.

Carmen Rodríguez-Cardi ("Rodríguez-Cardi") appeals the district court's order granting MMM Holdings, Inc.'s ("MMM") motion for summary judgment on her Age Discrimination in Employment Act ("ADEA") claim regarding the termination of her employment. The district court determined that the record was devoid of any evidence from which a reasonable jury could infer that MMM's articulated reason for terminating Rodríguez-Cardi's employment was pretextual, let alone a pretext for age discrimination. After careful consideration, we affirm.

I. Background

A. Factual Background

On October 16, 2012, Rodríguez-Cardi began working with TEAMS LLC as an Independent Promoter for MMM, which "operates a [highly regulated] health insurance plan designed [for] beneficiaries of Medicare Advantage." During her tenure as an Independent Promoter, Rodríguez-Cardi regularly performed several tasks for MMM, including generating "valid leads ... through authorized marketing activities," while adhering to Centers for Medicare & Medicaid Services ("CMS") and MMM policies, procedures, and rules. MMM Supervisor Roberto Rodríguez-Delgado ("Rodríguez-Delgado"), who oversaw Rodríguez-Cardi's work during this period, and MMM Sales Manager Brenda Real ("Real") eventually approached Rodríguez-Cardi and encouraged her to apply for a sales position at MMM. After interviewing with Rodríguez-Delgado and Real, on June 24, 2013, Rodríguez-Cardi accepted an offer to work as an Outside Sales Representative ("OSR") at MMM. Under the terms of her employment, Rodríguez-Cardi -- who was forty-six years old at the time -- would report directly to Rodríguez-Delgado.

To sell MMM products, all OSRs must have a license issued by the Puerto Rico Insurance Commissioner. Rodríguez-Delgado assisted Rodríguez-Cardi -- who was unlicensed and said she did not have enough money to pay the licensing fees -- with securing her license by lending her the necessary funds.

At the outset of her employment, Rodríguez-Cardi acknowledged receipt of MMM's Job Description for the OSR position, the "Sales Representative or Independent Producers Agreement Letter," and the MMM Employee Handbook.¹ She certified her understanding that any "coordinated marketing" must be compliant with all applicable state and federal laws and CMS policies. She additionally acknowledged that she was expressly prohibited from "solicit[ing] door-to-door for Medicare beneficiaries or through other unsolicited means of direct contact, including calling a beneficiary without the beneficiary initiating the contact." Moreover, MMM's written Employee Counseling/Progressive Discipline Policy provided that employees who "failed to meet MMM's ... job expectations or violated MMM's policies and/or CMS provisions" could face either progressive discipline or immediate termination depending on the circumstances.

Rodríguez-Cardi's OSR duties included "conducting seminars and in-home sales presentations to eligible and potential Medicare beneficiaries"; providing product information to interested persons who had provided MMM with a valid written authorization; visiting assigned providers to "generate sales leads through referrals and to coordinate activities"; and creating various reports (e.g., in-home reports, leads results reports, and provider visit reports) which were due to Rodríguez-Delgado each day at 7:30 a.m.

OSRs were required to meet with their supervisor each month to discuss their job progress and performance, including review of their Primary Responsibilities Form ("Hoja de Responsabilidades Primarias," hereinafter "HRP"), which memorializes the OSR's success in reaching their monthly quotas and timeliness in submitting reports.

Rodríguez-Delgado assessed Rodríguez-Cardi's job performance in a probationary period evaluation dated September 23, 2013. The evaluation, which Rodríguez-Cardi received and signed, concluded that she "presented doubts regarding MIPPA regulation[s] and [that] her sales reports [contained] many errors." Despite the concerns expressed in the evaluation, however, Rodríguez-Cardi was given a regular employee position as an OSR. Between August 2013 and February 2014, Rodríguez-Cardi's monthly evaluations reflected her pervasive failure to meet job expectations; her HRPs indicated that she was noncompliant with between forty and sixty-seven percent of the performance indicators each month. These unfulfilled performance indicators included meeting sales, "Scope of Appointments,"² and provider visit quotas, as well as "daily arrival at the office."

On February 21, 2014, Rodríguez-Delgado issued a "Record of Disciplinary Action" to Rodríguez-Cardi for her repeated failure to timely submit her sales reports between December 2013 and February 2014. When discussing the Record of Disciplinary Action with Rodríguez-Cardi, Rodríguez-Delgado informed her that "her actions were affecting the daily process of the Sales Department, generation of reports, quality calls, and audits," and that continued underperformance would be met with "more severe disciplinary measures resulting in [termination]." Rodríguez-Cardi did not write any comments or objections on the Record of Disciplinary Action despite having been given the opportunity to do so.

After failing again to meet her monthly sales quotas in October 2013 and February 2014, Rodríguez-Cardi was placed on an Action Plan "to help her with her productivity and sales."³ On March 17, 2014, Rodríguez-Delgado met with Rodríguez-Cardi and informed her that she was not meeting the Action Plan's objectives and that continued failure to comply would result in further adverse disciplinary action, including termination. Rodríguez-Cardi received and signed the "Action Plan Follow-Up." On April 2, 2014, Rodríguez-Delgado met with Rodríguez-Cardi once again, this time to discuss the "Action Plan Closing Memo," which detailed her noncompliance with the Plan's objectives. The following day, Rodríguez-Delgado issued Rodríguez-Cardi a "Final Written Warning," which included a "Final Action Plan" -- a last-ditch attempt to improve her sales numbers and overall productivity.

The MMM Scope of Appointment Policy MKT-0047 provides that OSRs are strictly prohibited from any unsolicited contact with potential enrollees. An OSR must have a "Scope of Appointment" -- a specific written authorization -- issued by the Medicare beneficiary or legal representative before the OSR can engage in a sales presentation appointment. Pursuant to the Sales Investigation Process Policy CMP-0046, the recommended disciplinary action for unapproved door-to-door solicitation is "immediate suspension or termination." Additionally, the MMM Standards of Conduct for Sales and Marketing Activities dictate that OSRs who call or visit "a beneficiary who was referred by a friend, provider, provider's secretary, [or] any other third-party without obtaining a [S]cope of [A]ppointment prior to contact and member attestation form (testimonial)" should be terminated from employment with MMM.

On March 14, 2014, CMS Caseworker E. Dumas referred a beneficiary's complaint to MMM, which was reported through 1-800-MEDICARE and alleged marketing misrepresentation. MMM Compliance Auditor Specialist Frances Benítez Fernández ("Auditor Benítez") commenced a compliance investigation regarding the complaint on March 30, 2014. At the end of the investigation, on April 11, 2014, Auditor Benítez concluded in her Compliance Investigation Report that Rodríguez-Cardi had "incurred in a door-to-door solicitation" by arriving at beneficiary Ms. Doe's⁴ residence "without prior and valid authorization." Finding that the "Scope of Appointment" and "attestation" were improperly obtained -- Rodríguez-Cardi acquired them after appearing at Ms. Doe's residence "without a proper prior contact" -- Auditor Benítez recommended that Rodríguez-Cardi's employment be terminated.

MMM Human Resources Director Gloribel Rivera-Cabrera ("Director Rivera") upheld Auditor Benítez's recommendation after evaluating Auditor Benítez's Compliance Investigation Report, Rodríguez-Cardi's record, training, and disciplinary and performance history, as well as applicable policies and procedures regarding disciplinary action. On April 16, 2014, MMM terminated Rodríguez-Cardi's employment.⁵ Her duties and assigned providers were distributed among eight other MMM employees, ranging in age from twenty-seven to forty years old.

Rodríguez-Cardi contends that, prior to her termination, some of her colleagues called her "la mayor del grupo" ("the oldest in the group"). She additionally claims that two OSRs referred to her as "la vieja" ("the old lady"), called her hairstyle old-fashioned, and remarked that she had an "old woman's coat." Moreover, she says that these OSRs mocked her cell phone, which she had owned for twelve years and did not have internet access, and her car, a 1987 S.U.V. model, for being old. In her deposition, Rodríguez-Cardi claimed that she told Rodríguez-Delgado that coworkers "were making out of place comments" and "bothering" her; even so, she admitted that she had never formally complained about any alleged mistreatment or unwelcome age-related comments in writing.

B. Procedural History

On November 25, 2014, Rodríguez-Cardi filed a complaint in the U.S. District Court for the District of Puerto Rico against MMM. In her amended complaint filed on January 29, 2015, Rodríguez-Cardi asserted claims for: (1) age discrimination, hostile work...