Arroyo-Audifred v. Verizon Wireless, Inc.

• Decision Date: 04 June 2008
• Docket Number: No. 07-1661.,07-1661.
• Citation: 527 F.3d 215
• Parties: Dennis ARROYO-AUDIFRED; Waleska Rivera Montañez; Desiree Arroyo-Rivera; Dennis Arroyo-Rivera, Plaintiffs, Appellants, v. VERIZON WIRELESS, INC.; José Rubén Sáez, in his personal and official capacity; John Doe, in his personal and official capacity; Insurance Company ABC, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

527 F.3d 215

Dennis ARROYO-AUDIFRED; Waleska Rivera Montañez; Desiree Arroyo-Rivera; Dennis Arroyo-Rivera, Plaintiffs, Appellants, v.VERIZON WIRELESS, INC.; José Rubén Sáez, in his personal and official capacity; John Doe, in his personal and official capacity; Insurance Company ABC, Defendants, Appellees.

No. 07-1661.

United States Court of Appeals, First Circuit.

Heard November 7, 2007.

Decided June 4, 2008.

Lydia Ramos, with whom Carlo Law Offices, P.S.C., was on brief, for appellant.

Miriam B. Toledo-David, with whom Lizette Vélez-Rivé, Bayoán Muñiz-Calderón and Vélez-Rivé & Toledo-David, P.S.C., were on brief, for appellees.

Before LIPEZ, Circuit Judge, BALDOCK,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

In this age discrimination case, AppellantDennis Arroyo-Audifred("Arroyo") appeals the district court's grant of summary judgment to his employer, Verizon Wireless, Inc., on his claim that he was victimized by a policy of discrimination and was wrongfully denied several promotions.¹We affirm.

We review the district court's summary judgment decision de novo, Rathbun v. Autozone, Inc.,361 F.3d 62, 66(1st Cir.2004), taking the record facts in the light most favorable to the nonmoving party, and drawing all reasonable inferences in his favor.Iverson v. City of Boston,452 F.3d 94, 98(1st Cir.2006).We will affirm the district court if we find that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Fed.R.Civ.P. 56(c).We are not, however, required to "accept as true or to deem as a disputed material fact, each and every unsupported, subjective, conclusory or imaginative statement" made by a party.Torrech-Hernandez v. General Elec. Co.,519 F.3d 41, 47(1st Cir.2008).

I.BACKGROUND

Arroyo was born in 1956.In 1981, he began working as a sales representative for the Puerto Rico Telephone Company("PRTC").He was promoted to a supervisory position seven years later.In 1995, he began working for PRTC's wireless telephone division as a store supervisor.In 2001, he successfully applied to become a sales manager in the retail sales department.Also in 2001, Verizon became the parent company of PRTC and implemented a reorganization that eliminated some positions and created others.One of the eliminated positions was retail sales manager, which Arroyo and four other Verizon employees held.The reorganization led to the creation of two district manager positions.Arroyo applied to become a district manager in late 2002, when he was 46 years old.Although Verizon's human resources department certified that he met the minimum requirements for the job, he was not selected.Instead, the job went to one of Arroyo's fellow displaced retail sales managers, Gustavo Cañas, who was then 35 years old.The other unsuccessful candidates were 36, 43 and 58 years old.

At roughly the same time, given that the reorganization had eliminated Arroyo's old position, Verizon offered Arroyo a newly created position of retail store manager, at the same salary as his former job of retail sales manager.Although he considered it a demotion, he accepted the position, as did two other former retail sales managers, whose ages were 36 and 50.He was allowed to choose the store where he would work, and selected the store in Humacao, which was near his home.

In March 2003, Arroyo applied for the position of associate director of corporate sales.Verizon's human resources department certified Arroyo and three other candidates as meeting the minimum requirements for the position.Three of the four were older than 40 years of age.Rather than hiring any of the internal candidates, Verizon turned to a headhunter, to look for external candidates within the wireless industry.William Cuebas was selected from a group of 20 candidates.He was 39 years old.

Near the end of 2003, the "other" district manager position created in the 2002 reorganization became available due to a retirement.Arroyo applied for the job, as did three other Verizon employees over the age of 40.Only Arroyo had the minimum educational requirements for the job.The opening was re-posted internally, and two additional candidates were certified by the human resources department as meeting the minimum job requirements-Madeline Cuesta and Vivianette Menendez.Both were, like Arroyo, retail store managers.Menendez was 37 years old; Cuesta was 35.General Sales Manager Jose Saez conducted the interviews.During Arroyo's interview, Saez said, "This position is like stepping in a train station, sometimes the doors open and sometimes they don't."Arroyo interpreted the comment to mean that the position could already be closed to him.For his part, Saez explained that he used the analogy with all interviewees currently employed by Verizon because he wanted them to remain focused on their jobs while waiting for an open position.In addition, Arroyo testified that Saez yawned during his interview, which Arroyo took to mean that Saez found his answers boring or he didn't care for them.Saez testified that Cuesta and Menendez were his first two choices for the job.He noted in a written summary his opinion that although Arroyo was a "good candidate,"he"lacked professional maturity," meaning that Arroyo did not express himself with the necessary confidence for the job in question.After the interviews, Saez's supervisor, Walter Forwood, asked Saez for his top two choices, as he had a long-standing job opening and wanted to interview them.Forwood hired Menendez as distribution channels director.Saez then chose Cuesta for the district manager position.

Cuesta was promoted in May 2006, and Arroyo applied for her former district manager job.The interview process consisted of an English test, a sales aptitude test, and a "structured interview," wherein all candidates would be asked the same questions by interviewers.The process is designed to be objective, as there are specific subjects to be covered and responses deemed acceptable.Arroyo did not pass the structured interview.Sometime after the interview, Arroyo spoke with one of the interviewers, Human Resources Manager Vivian Sanabria.She told Arroyo that he needed to improve his organizational and planning skills.Cuesta, participating in the interview for her old job, testified that Arroyo's answers were superficial, incomplete and indirect.Frances Rodriguez, whose interview score was higher than Arroyo's was chosen to be the new district manager.Rodriguez was 52 years old at the time.

LEGAL ANALYSIS

The Age Discrimination in Employment Act, ("ADEA") prohibits employers from taking adverse employment actions against an employee older than 40 because of his age.Bennett v. Saint-Gobain Corp.,507 F.3d 23, 30(1st Cir.2007).Where, as here, there is no "smoking gun" evidence of discrimination, a plaintiff can use the familiar McDonnell Douglas burden shifting framework to meet his ultimate burden of proving that he was denied promotions due to his age.Vega v. Kodak Caribbean, Ltd.,3 F.3d 476, 478(1st Cir.1993)(citingMcDonnell Douglas Corp. v. Green,411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668(1973)).Arroyo bears the initial burden of making out a prima facie case of age discrimination.To do so, he must show: 1) he was at least 40 years old at the time of the discrimination; 2) he was qualified for the position; 3) he was denied the promotion; and 4) Verizon filled the position with a younger person of similar qualifications.Mesnick v. Gen. Elec. Co.,950 F.2d 816, 822(1st Cir.1991), cert. denied,504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586(1992).This "modest showing" is sufficient to raise an inference of discrimination.Rathbun,361 F.3d at 71.The burden then shifts to Verizon to articulate a legitimate, non-discriminatory reason for its decisions.Currier v. United Techs. Corp.,393 F.3d 246, 254(1st Cir.2004).If Verizon does so, Arroyo must produce evidence that Verizon's proffered reasons are a pretext for age discrimination.Hoffman v. Applicators Sales and Service, Inc.,439 F.3d 9, 17(1st Cir.2006)."[T]he ultimate burden on the plaintiff is to show that discrimination is the or a motivating factor, a showing which may, but need not be, inferred, depending on the facts, from the showing of pretext."Id.(citingFite v. Digital Equip. Corp.,232 F.3d 3, 7(1st Cir.2000)).

Before we undertake the analysis of the summary judgment record, we address certain subsidiary issues.Arroyo's complaint alleged both that he was improperly denied specific promotions and that he was victimized by Verizon's policy of discrimination that "closed the doors" of promotion to older workers.The district court found that the statute of limitations barred consideration of the promotion denials in 2002 and March 2003 as specific claims of discrimination.The court did, however, allow consideration of the claim of a discriminatory policy if it continued after July 28, 2003.Arroyo-Audifred v. Verizon Wireless,431 F.Supp.2d 215, 220(D.P.R.2006).²Arroyo has not appealed this ruling, and we therefore do not revisit it.

Next, we note that while Arroyo complied with Fed.R.Civ.P. 56andLocalRule 56(c) by submitting an opposing statement of material facts in support of his objection to Verizon's summary judgment motion, his denials of many of Verizon's asserted facts consisted of the following statement: "Denied, as it is a matter of veracity for the jury to assess, together with all the circumstances in the case."The district court deemed such denials as ineffective for the purpose of opposing summary judgment, and we do as well.It is simply not enough to say, in effect, that the testimony of a Verizon employee might be disbelieved by a jury.Instead, Arroyo must offer specific facts to counter those set out by Verizon.See, e.g., Vega,3 F.3d at 479(nonmovant's facts must demonstrate the existence...