Acevedo–Parrilla v. Novartis Ex–Lax, Inc.

• Decision Date: 10 October 2012
• Docket Number: No. 10–2276.,10–2276.
• Citation: 696 F.3d 128
• Parties: Hernán ACEVEDO–PARRILLA; Nitza I. Medina Martínez; and the conjugal partnership composed between them, Plaintiffs, Appellants, v. NOVARTIS EX–LAX, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

696 F.3d 128

Hernán ACEVEDO–PARRILLA; Nitza I. Medina Martínez; and the conjugal partnership composed between them, Plaintiffs, Appellants,

v.NOVARTIS EX–LAX, INC., Defendant, Appellee.

No. 10–2276.

United States Court of Appeals, First Circuit.

Heard March 6, 2012.

Decided Oct. 10, 2012.

Vilma M. Dapena–Rodríguez, for appellants.

Enrique R. Padró–Rodríguez, with whom Pedro J. Manzano–Yates and Fiddler, González & Rodríguez, P.S.C., were on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiff–Appellant Hernán Acevedo–Parrilla (“Acevedo”) appeals the district court's award of summary judgment to his former employer, Novartis Ex–Lax (“Ex–Lax” or “the company”), on his claims of age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634. Upon careful review of the record, we find that it holds sufficient evidence from which a jury could conclude that the company's reason for terminating Acevedo was pretextual, and that the true reason for his termination was discriminatory based on his age. We therefore reverse the district court's grant of summary judgment and remand.

I. Background

Because our review is from a grant of summary judgment, we set forth the background facts, as supported by the record, “in the light most favorable to the non-moving party,” in this case, Acevedo. Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 444 (1st Cir.2009).

A. Acevedo's History at Ex–Lax

Acevedo was born in 1951 and is a trained mechanical engineer. For twenty years, from 1975 to 1995, Acevedo worked in various posts as an engineer in the manufacturing, government, and pharmaceutical sectors, a trajectory that included the assumption of supervisory roles and exemplary performance evaluations. In 1996, the General Manager of Ex–Lax—a pharmaceutical company that manufactures over-the-counter products, including laxatives—approached Acevedo and offered him the position of Maintenance and Engineering Manager at the company's site located in Humacao, Puerto Rico. Acevedo accepted the position and held it for the next eleven years, until he was terminated in 2007. At the time of his termination, Acevedo was 56 years old.

Acevedo's main responsibility as the Maintenance and Engineering Manager at Ex–Lax consisted of keeping the plant's facilities in optimum condition, including facilities associated with the company's production machinery, treatment plant, landscaping, and building services. Acevedo's department also provided engineering support to other departments in the company, supervised major contract works, and oversaw the provision of services such as pest control, cleaning, and sanitation by outside contractors. In all, the job required that Acevedo supervise approximately twelve employees, including a maintenance technician, several mechanics, a stock room clerk, a groundskeeper, a packaging engineer, and a facilities project engineer.

For most of his career at Ex–Lax, Acevedo received positive performance reviews that fluctuated between overall ratings of “fully met expectations” and “exceeding expectations.” ¹ From 2000 to 2006, Acevedo was awarded performance ² bonuses of over $10,000.00 in each of those years, except for 2004, when his bonus totaled only $6,244.00. In 2007, the year of his termination, both Acevedo's immediate supervisor at the time, Carlos Ceinos (“Ceinos”), and Ceinos's supervisor, Iván Martí (“Martí”), approved a bonus of $13,166.00 for Acevedo's performance in 2006.

B. Ceinos's Superintendence as Site Leader

In 2003, Ex–Lax hired Ceinos for the position of Site Leader, which made him responsible for overall operations at the company's Puerto Rico site. As part of his duties, Ceinos evaluated the performance of all of Ex–Lax's department managers, including Acevedo. Ceinos was also charged with reviewing “unplanned deviation reports” generated by investigation teams at the site. These reports contained analyses of deviations from Ex–Lax StandardOperating Procedures (“SOPs”), and were prepared in order to determine the “root cause” of particular deviations, establish appropriate corrective and preventive actions, and gauge the impact of the deviation on Ex–Lax's products.

According to Elizabeth Rodríguez (“Rodríguez”), Ex–Lax's Human Resources (“HR”) Manager from March 1997 to May 2005, upon assuming the role of Site Leader, Ceinos asked Rodríguez to investigate “the inclinations” of employees “who had reached retirement age” to determine “what their wishes were regarding leaving the company.” Rodríguez testified that this request was part of Ceinos's new “recruitment plan,” instituted for the purpose of “proceed[ing] to substitute the persons who were of retirement age.” In order to qualify for retirement, employees had to have accumulated at least five years of service with the company and be 55 years of age or older. Although Rodríguez stated that “[t]here was no pressure as such” exerted upon employees to retire as part of Ceinos's plan, she gave at least one example of an employee at retirement age who chose not to retire after being asked and was subsequently moved to another department, resulting in what Rodríguez characterized as a “demotion.”

Information provided by Ex–Lax in answers to interrogatories reveals that, after 2003—the year in which Ceinos became Site Leader—the company hired approximately 140 employees, 114 of whom were less than forty years of age. In the same period, Ex–Lax fired only 17 employees, 15 of whom were older than forty.

C. The 2004 and 2006 Incidents

Not long after Ceinos became Site Leader, Acevedo began to experience performance problems at the company. Ceinos became aware of a number of incidents involving Acevedo's department that occurred from 2004 to 2006 and factored these into Acevedo's performance reviews. In 2004, such events included (1) the recorded presence of rodents in the chocolate manufacturing and packaging areas, (2) the recorded presence of bacteria in two lots of Ex–Lax's Gas–X Super Extra Strength Soft Gel 30's, and (3) a packaging process deviation.

The first of these incidents transpired in January of 2004, when a rodent was found in the packaging area near the chocolate line, causing production to be put on hold. A subsequent investigation conducted by Ex–Lax personnel, and in which Acevedo participated, determined that the rodent had likely entered the packaging area during a building renovation that began on December 30, 2003, during which contractors accessed the plant through the cafeteria's emergency exit door and the employees' entrance door. The investigation team found that these doors had remained open for longer than necessary, but the resulting report did not specifically mention a mistake or error on the part of Acevedo or his department.

Later, in June of 2004, an employee from One Source, Ex–Lax's building services contractor, found traces of ceiling tile on the floor of the chocolate manufacturing area. It was later confirmed that this was the result of rodent activity in the ceiling above the chocolate room. After the setting of traps and the capture of one small rodent, a maintenance technician found a hole in an unused exhaust fan in the ceiling of the Quality Assurance Laboratory. The exhaust fan was immediately removed and the hole sealed. A subsequent investigation concluded it was highly probable that the rodent gained access through the previously uncovered hole. The discovery of this latter rodent activity caused the company to “reject,” or decommission, a batch of chocolate laxative.

The second 2004 event took place in September and involved the detection through laboratory tests of a bacteria in two lots of Ex–Lax's Gas–X Super Extra Strength Soft Gel 30's. This triggered the Quality Assurance Department's rejection and disposal of the lots. An investigation team comprised of Ex–Lax personnel, including Acevedo, later concluded that the bacteria could have originated either from mold contamination in (closed and unused) bathrooms located near the production area, or from the fact that one of the operators who participated in the inspection of the lots was confirmed to be sick at the time of the inspection. Acevedo indicated through testimony that contamination in the bathrooms could have been prevented had there been an SOP in place regarding their daily cleaning.

The third and final 2004 event also occurred in September, when the personnel from Acevedo's department were installing and setting up a new brush box for the packaging of a lot of Gas–X Maximum Strength Soft Gels 50's. During the set-up, they became aware that the positioning of the brushes inside the brush box was not correct, so they changed it. They then installed a new acrylic box in the brush box and evaluated the effect of the acrylic box on the packaging operation. Although these actions did not have a negative impact on the quality of Ex–Lax's product, both actions were taken without the appropriate deviation approval from the Production and Quality Assurance Departments and, therefore, violated Ex–Lax's Change Control Procedure. The record reveals that some of the personnel involved in this event may not have received adequate training in the change control procedures. After the brush box incident, all personnel, supervisors, and managers in Acevedo's department were so trained.

Ceinos testified that he became aware of each of the 2004 incidents through their corresponding investigative and/or unplanned deviation reports. He also indicated that he attributed responsibility for each of the incidents to Acevedo based on his general job description and responsibilities. Accordingly, Ceinos recorded them in Acevedo's 2004 annual performance review, in which he gave Acevedo a low overall rating of 1, or “partially met expectations.” As a result, Ex–Lax required that Acevedo complete a Performance Improvement Plan (“PIP”...