De Arteaga v. Pall Ultrafine Filtration Corp., 88-1046

• Decision Date: 06 October 1988
• Docket Number: No. 88-1046,88-1046
• Citation: 862 F.2d 940
• Parties: 48 Fair Empl.Prac.Cas. 1018, 48 Empl. Prac. Dec. P 38,512 Al De ARTEAGA, Plaintiff, Appellant, v. PALL ULTRAFINE FILTRATION CORPORATION, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 940

862 F.2d 940

48 Fair Empl.Prac.Cas. 1018,

48 Empl. Prac. Dec. P 38,512

Al De ARTEAGA, Plaintiff, Appellant, v. PALL ULTRAFINE FILTRATION CORPORATION, Defendant, Appellee.

No. 88-1046.

United States Court of Appeals,

First Circuit.

Heard Oct. 6, 1988.

Decided Dec. 15, 1988.

Enrique Bray with whom Dominguez & Totti, Hato Rey, P.R., was on brief, for plaintiff, appellant.

Jorge L. Capo-Matos with whom Pedro A. Delgado-Hernandez and O'Neill & Borges, Hato Rey, P.R., were on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, BROWN, ^* Senior Circuit Judge, and COFFIN, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

This appeal is from the district court's granting of summary judgment to the defendant, Pall Ultrafine Filtration Corporation ("Pall"), in an age discrimination action brought by Al De Arteaga, who was discharged at the age of 47 after serving for a year as Pall's regional sales manager for Puerto Rico, Georgia and Florida. The district court's opinion is published at 673 F.Supp. 650 (D.P.R.1987). Essentially for the reasons stated therein, we affirm. We comment further, however, upon certain of appellant's arguments.

The question, when reviewing the correctness of summary judgment, is

whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). This turns on whether

there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.

Id. at 249, 106 S.Ct. at 2510 (citations omitted). Evidence that is "merely colorable" or "not significantly probative" is not enough. Id. at 249-50, 106 S.Ct. at 2510-11. The question is not whether there is literally no evidence favoring the non-movant, but whether there is any upon which a jury could properly proceed to find a verdict in that party's favor. Id. at 251, 106 S.Ct. at 2511 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)).

De Arteaga's age discrimination claim was brought under Puerto Rico law, the lower court's jurisdiction resting upon diversity of citizenship. The ultimate question is whether there is enough competent evidence for a jury to find that Pall was guilty of age discrimination under Puerto Rico law when it discharged De Arteaga.

Under sec. 1 of Law 100, P.R.Laws Ann. tit. 29, Sec. 146 (1985), an employer who discharges or discriminates against an employee on the basis of age incurs civil liability. Discharge of an employee "without good cause" is a presumptive violation of sec. 1, although the presumption is of a "controvertible character." Sec. 3 of Law 100, P.R.Laws Ann. tit. 29, Sec. 148 (1985). Once the presumption is established, "the defendant employer is required to prove that the discharge was not discriminatory." Ibanez Benitez v. Molinos de Puerto Rico, Inc., No. O-82-378, slip op. at 12 (Official English Translation) (P.R. Mar. 16, 1983). In this respect, the burden shifting under Law 100 of Puerto Rico operates differently from that under the federal age discrimination law. Id.

Under this analysis, as the district court recognized, there are two questions: 1) Would the evidence taken most favorably for plaintiff permit a reasonable jury to find that he was let go "without good cause?" 2) Assuming a genuine issue of fact as to "good cause," would the evidence as a matter of law permit a finding that De Arteaga was discharged because of his age (taking into account Pall's burden to prove non-discrimination)? The district court returned a negative answer to both questions, as do we.

As to the first issue, Pall's evidence was to the effect that De Arteaga was let go because of his lack of technical expertise, because he made various errors, and because he did not have the confidence of the sales staff at Pall's sole Puerto Rico distributor. ¹ Pall's marketing vice-president's sworn statement to this effect was backed by a sworn statement from Gold, the owner-manager of Pall's Puerto Rico distributor. These sworn statements indicate that Pall discharged De Arteaga because Pall believed De Arteaga was performing ineffectively. Under Puerto Rico law, ineffective performance is sufficient basis for a good cause discharge. Id. at 9 n. 2. Narvaez v. Chase Manhattan Bank N.A., No. CE-87-100, slip op. (P.R. Mar. 30, 1988); Baez Garcia v. Cooper Laboratories, No. R-85-279, slip op. (P.R. Dec. 18, 1987).

De Arteaga, in his own sworn statement, countered that he had received no complaints as to the quality or ineffectiveness of his work from any of the salesmen of the distributors with whom he worked, nor from Gold himself. De Arteaga further complained that prior to discharge he had received no warning or reprimand from his superiors at Pall, other than suggestions to make a further effort to memorize all of Pall's product numbers, nor was he told he had to reach certain sales quotas. De Arteaga set forth extensive figures, allegedly based on Pall's own sales figures, which he contends show that in the three regions for which he was responsible, the volume of Pall's sales had been satisfactorily maintained.

It is a close question whether on this record De Arteaga has raised as a genuine issue of fact whether his discharge was "without good cause." The fact that other salesmen, including Gold himself, did not complain to De Arteaga personally does little to counter Gold's and De Arteaga's supervisor's sworn statements that Gold and his sales personnel had expressed dissatisfaction to Pall. And the fact that sales figures during the relatively short period of his tenure were arguably sufficient is somewhat beside the point, as the stated basis for Pall's dissatisfaction was De Arteaga's lack of competence, not that sales had plummeted. A stronger point for De Arteaga is his assertion that, except for urging him to memorize product numbers, his supervisors did not reprimand or warn him of impending discharge. If a jury believed De Arteaga's version, it might infer from the lack of warning or reprimand that he was performing better than Pall now says. On the other hand, De Arteaga nowhere presents evidence to contradict Pall's primary criticisms that he lacked technical skills and that Gold, the head of Pall's sole Puerto Rico distributor, had complained to Pall on the grounds stated.

A recent decision of the Puerto Rico Supreme Court lends support to Pall's argument that there is not a triable issue concerning whether De Arteaga's discharge was "without good cause." In Narvaez v. Chase Manhattan Bank N.A., slip op. (Official English Translation), the court overturned lower court decisions that a bank did not have good cause to fire an employee for poor quality work as it was the employer's mistake to have promoted him to a supervisory position beyond his ability. Holding that discharge for incompetence was neither "whimsical [n]or abusive," the court reaffirmed its holding in Baez Garcia v. Cooper Laboratories that an employer has good cause to discharge an employee who is not performing his duties properly. Narvaez, slip op. at 5-6 (Official English...