Ashe v. Distribuidora Norma, Inc.

• Citation: 7 F.Supp.3d 134
• Decision Date: 14 March 2014
• Docket Number: Civil No. 10–2236(DRD).
• Court: U.S. District Court — District of Puerto Rico
• Parties: David ASHE, Plaintiff v. DISTRIBUIDORA NORMA, INC., Carvajal S.A., Editorial Norma S.A., et al., Defendants.

7 F.Supp.3d 134

David ASHE, Plaintiff

v.DISTRIBUIDORA NORMA, INC., Carvajal S.A., Editorial Norma S.A., et al., Defendants.

Civil No. 10–2236(DRD).

United States District Court,

D. Puerto Rico.

Signed March 14, 2014.

Leticia Casalduc–Rabell, Vanesa Vicens, David C. Indiano–Vicic, Indiano & Williams, PSC, Jose A. Pagan–Nieves, San Juan, PR, for Plaintiff.

Eyck O. Lugo–Rivera, Carolina Iguina–Lopez, Eliseo Roques–Arroyo, Edge Legal Strategies, PSC, Ricardo Pizarro, Pizarro Law Firm, P.S.C., San Juan, PR, for Defendants.

OPINION AND ORDER

DANIEL R. DOMINGUEZ, District Judge.

David Ashe (“Plaintiff”) alleges to have been the victim of age discrimination at the hands of his former employers Carvajal S.A.; Distribuidora Norma, Inc.; and Editorial Norma S.A. In addition to several remedies under state law, Plaintiff seeks compensation under the Age Discrimination in Employment Act (“ADEA”). See29 U.S.C. §§ 621–634. Plaintiff is particularly alleging an ADEA violation as to a position in which he worked for Editorial Norma S.A.; the other two Defendants are alleged to have acted in conjunction with Editorial Norma S.A. in committing the ADEA infraction. Pending before the Court is a joint motion for summary judgment filed by all three Defendants. Defendants aver that summary judgment should be granted because no reasonable jury could rule in Plaintiff's favor because Plaintiff cannot establish either: a) that a prima facie case of age discrimination exists, as required under ADEA, and/or b) that age was the but-for cause for Plaintiff's firing. For the reasons set forth below, the Court hereby DENIES Defendants' motion for summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of the instant case are complicated by the numerous business entities involved and their relationships to one another. An understanding of said relationships is critical as they are related to the legal issues surrounding the instant motion for summary judgment. Plaintiff's argument to treat Defendants as one entity under the single employer doctrine is particularly dependent on this understanding. Further, the facts have been stated in the light most favorable to Plaintiff, who is the non-moving party.

To begin, there are three defendants in the instant case: Carvajal S.A. (“Carvajal”), Distribuidora Norma Inc. (“Distribuidora”), and Editorial Norma S.A. (“Editorial”).¹ Nevertheless, it is necessary to mention several additional non-party business entities in order to fully comprehend the relationships between Defendants. Carvajal, a Defendant, is a large international holding company of numerous business entities. (Docket No. 240, p. 1, ¶ 1). Among the companies held by Carvajal are: a) Editorial, b) Publicar, and c) BICO. (Docket No. 265, p. 2, ¶ 2; Docket No. 240, p. 4, ¶ 14; and Docket No. 240, p. 9, ¶ 29). At some point, Editorial merged with BICO to form Grupo Norma.² (Docket No. 265–2, ¶ 25). Before April of 2009, Editorial was itself the holding company of: a) Distribuidora, and b) 13213 Portales (“B2B”).³ (Docket Nos. 240, p. 3, ¶ 8; Docket No. 265–2, ¶ 6). After April of 2009, Publicar became the holding company of 13213. (Docket No. 241–44). With the explanation of the business structure briefly narrated, the Court shall proceed to describe Plaintiff's place within said structure over different periods of time.

Plaintiff was hired on May 1, 1990 as the international sales manager for B2B. (Docket No. 265, p. 39, ¶ 2). Subsequently, Plaintiff was promoted to the position of general manager of B2B. Id. at p. 39, ¶ 3. In 2005, Plaintiff was named country manager of Distribuidora. (Docket No. 240, p. 3, ¶ 11). However, to be clear, Plaintiff's appointment as country manager did not mean that Plaintiff would be relinquishing his prior position as general manager of B2B. On the contrary, Plaintiff simultaneously held both positions: a) general manager for B2B Portales, and b) country manager for Distribuidora. (Docket No. 265–3). In May of 2008, the parameters of Plaintiff's position as country manager of Distribuidora changed. From that point forward, as country manager of Distribuidora, Plaintiff was assigned to manage B2B Global and Editorial/Grupo Norma. (Docket No. 265–6).⁴ Shortly after Publicar became the holding company for B2B, Plaintiff's country manager position was eliminated. (Docket No. 241–44). However, Plaintiff continued to manage Editorial/Grupo Norma, which was one of the duties assigned to him as country manager of Distribuidora before said position was eliminated. (Docket No. 265–2, ¶ 24). Further, Plaintiff also continued to manage B2B. (Docket No. 241–44). Thus, at that time Plaintiff worked simultaneously in management positions for: a) B2B, and b) Editorial/Grupo Norma (the position subject to an alleged ADEA infringement). See Id.; Docket No. 278, p. 35, ¶ 19; and Docket No. 265–2, ¶ 24. In January of 2010, in a company move that Plaintiff admits is independent of any age discrimination, Plaintiff was relieved of his management position for B2B in favor of Mr. Cody Lund.⁵ (Docket No. 240–102; Docket No. 265, p. 10, ¶ 32, and Docket No. 278, p. 36, ¶ 25). Consequently, Plaintiff was only left with the management position for Editorial/Grupo Norma. (Docket No. 265, p. 41, ¶ 26). Finally, Plaintiff's employment was terminated on June 30, 2010. (Docket No. 242–16).⁶

Plaintiff was 44 years of age at the time of the firing. Plaintiff avers that Mr. Juan David Calero (“Mr. Calero”), who is 34 years of age, replaced him as the manager for Grupo Norma. Defendants deny that Plaintiff was in fact “replaced.” (Docket No. 239, p. 13). On September 20, 2010, Plaintiff timely filed a charge with the Equal Employment Opportunity Commission (“EEOC”) in which he invokes his rights under ADEA. (Docket No. 1, Exhibit 1A). Thereafter, on November 5, 2010, the EEOC issued a “Notice of Right to Sue.” (Docket No. 1, Exhibit 1B). Thus, Plaintiff then proceeded to file, in a timely manner, the instant lawsuit on December 16, 2010. The instant lawsuit is based, inter alia, on the theory that Defendants violated ADEA by: a) discriminating against Plaintiff on account of his age, and b) firing Plaintiff on account of his age. (Docket No. 31, p. 4, ¶ 26–27). Defendants deny that said firing was age related; on the contrary, Defendants state that the reasons for the firing are completely independent of Plaintiff's age.

After extensive discovery, Defendants jointly filed a motion for summary judgment on October 10, 2013. (Docket Nos. 239, and 240). Defendants' motion argues that a summary judgment is warranted because: a) Plaintiff cannot establish a prima facie case of age discrimination as required under ADEA, and/or b) Plaintiff cannot establish that he would not have been fired but for his age. On November 14, 2013, Plaintiff filed the corresponding opposition in which he disputes both arguments raised by Defendants. (Docket No. 270). After a thorough analysis of the extensive record, the Court shall proceed to scrutinize the motion and its merits.

II. SUMMARY JUDGMENT STANDARD

A motion for summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure, which entitles a party to judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is ‘genuine’ if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.” See Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir.2013); Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir.2008) (citing Thompson v. Coca–Cola Co., 522 F.3d 168, 175 (1st Cir.2008)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Calero–Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004) (stating that an issue is “genuine” if it can be resolved in favor of either party). The analysis with respect to whether or not a “genuine” issue exists is directly related to the burden of proof that a non-movant would have in a trial. “[T]he determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.” Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505. (applying the summary judgment standard while taking into account a higher burden of proof for cases of defamation against a public figure). In order for a disputed fact to be considered “material” it must have the potential “to affect the outcome of the suit under governing law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660–661 (1st Cir.2000) (citing Liberty Lobby, Inc., 477 U.S. at 247–248, 106 S.Ct. 2505); and Prescott, 538 F.3d at 40 (1st Cir.2008) (citing Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008)).

The objective of the summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997) (citing Fed.R.Civ.P. 56(e) advisory committee note to the 1963 Amendment). The moving party must demonstrate the absence of a genuine issue as to any outcome-determinative fact on the record. Shalala, 124 F.3d at 306. Upon a showing by the moving party of an absence of a genuine issue of material fact, the burden shifts to the nonmoving party to demonstrate that a trier of fact could reasonably find in his favor. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The non-movant may not defeat a “properly focused motion for summary judgment by relying upon mere allegations,” but rather through definite and competent evidence. Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). The non-movant's burden thus encompasses a showing of “at least one fact issue which is both ‘genuine’ and ‘material.’ ” Garside v. Osco Drug, Inc., 895 F.2d 46,...