Baez v. American Cyanamid Co. Caribbean Branch, Civ. No. 86-1199(PG).

• Decision Date: 22 April 1988
• Docket Number: Civ. No. 86-1199(PG).
• Parties: Arsenio BAEZ, et al., Plaintiffs, v. AMERICAN CYANAMID COMPANY CARIBBEAN BRANCH, Defendant.
• Court: U.S. District Court — District of Puerto Rico

685 F. Supp. 303

Arsenio BAEZ, et al., Plaintiffs, v. AMERICAN CYANAMID COMPANY CARIBBEAN BRANCH, Defendant.

Civ. No. 86-1199(PG).

United States District Court, D. Puerto Rico.

April 22, 1988.

Jose L. Rivero Vergne, San Juan, P.R., for plaintiffs.

Jose E. Gonzalez Borgos, San Juan, P.R., for defendant.

OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

Arsenio Báez ("plaintiff") claims defendant-employer, American Cyanamid Co.— Caribbean Branch ("American Cyanamid"), fired him because of his age. Plaintiff, his wife and the conjugal partnership they form bring causes of action based on the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and Puerto Rico's Law 100, P.R.Laws Anno., tit. 29, § 146. We have jurisdiction over the ADEA action, and plaintiff asks us to exercise pendent jurisdiction over the local claim. Before us is defendant's motion for summary judgment. Findings of facts are necessary to determine the fate of plaintiff's claims.

Plaintiff started working with American Cyanamid as a sales representative in April 1974. At all times relevant to this suit he was assigned to promote and to sell American Cyanamid products in "Territory 9", which comprised 13 towns on the northwestern part of Puerto Rico. In February 1985, Edwin Torregrosa was assigned to look over plaintiff's sales performance as his new immediate supervisor.

Torregrosa accompanied plaintiff in his sales efforts seven times during the February-to-June 1985 period to evaluate plaintiff's sales approach.¹ On July 11, 1985, after another one of those field trips, plaintiff met with Torregrosa for more than three hours to discuss plaintiff's 1985 sales and salesmanship as of June 30.² Torregrosa thought plaintiff could improve his sales to the public health centers. He believed plaintiff was not taking the necessary promotional steps with the centers. He also suggested to plaintiff alternatives to improve sales. Plaintiff's reaction to Torregrosa's constructive criticism and demands was not positive.

On July 18, 1985, Torregrosa received a memorandum from Mr. La Luz, Medical Department Manager.³ Plaintiff's sales for the January-June 1985 period were 11.6% below those of the same 1984 period. The sales were also substantially below his quota.

On July 19, 1985, Torregrosa met with plaintiff to discuss Mr. La Luz's memorandum. Torregrosa even wrote a memorandum to plaintiff as to how he could improve sales.⁴ Plaintiff's reaction to the suggestions was not positive.

On August 13, 1985, Torregrosa sent a memorandum to plaintiff asking why he averaged 6.2 doctors a day during July 1985 when company policy required at least eight doctor visits a day.⁵ Plaintiff excused his performance by saying that July 5 was a bad day to contact doctors and that July 19th and 23rd were rainy days.⁶ Torregrosa was not satisfied with plaintiff's explanation. This was not the first time he was told to improve performance in the private practitioners' area.⁷

Torregrosa accompanied plaintiff in his sales visits on August 28 and September 26 and 27. As to the latter, Torregrosa filled out an evaluation sheet.⁸ Plaintiff's work was rated either "good" or "average" in most aspects. This contrasted with previous field evaluations in March and June, on which plaintiff's work was mostly deemed as "good".⁹ In particular, it is worth noting the deterioration in Torregrosa's evaluation of plaintiff's "professional selling techniques", which had been the subject of discussion in the aforementioned July meetings.

In October 18, 1985, plaintiff met with Hector Mendez, American Cyanamid's personnel manager, and Torregrosa.¹⁰ Plaintiff was handed a memorandum written by Torregrosa that discussed his 1985 sales as of September 30. These were 22.3% under his quota and 15.4% below the same 1984 period. Figures also showed that even if 1984 vaccine sales were not considered in the 1984-85 comparison,¹¹ plaintiff's sales were still 8.1% below the 1984 level. Plaintiff was told to make up for the amount undersold (as compared to 1984) during the July-September 1985 period and to comply with his October and November quotas. Otherwise, he would be terminated.¹²

During that meeting plaintiff did not mention anything about being discriminated by Torregrosa because of his age. At one point during the meeting, Torregrosa left to give plaintiff a chance to air out any complaints against his immediate supervisor. Plaintiff said nothing about age discrimination. He excused his lackluster sales performance based on reasons that were not deemed convincing by his supervisors.¹³

On December 6, 1985, Mendez, Torregrosa, plaintiff and Francisco Brigantty, American Cyanamid Sales Manager, met. Plaintiff had not made the sales required of him on the October meeting—he was 23.6% below that amount. Moreover, Torregrosa noted plaintiff's salesmanship and attitude problems continued. Consequently, Torregrosa asked plaintiff for his resignation. Plaintiff did not tender it and instead promised to cover his sales deficit as of November 30, 1985 (compared with 1984 sales) and to meet his December 1985 quota. Plaintiff was given a last opportunity.¹⁴

On January 2, 1986, Brigantty and Mendez asked Torregrosa to see whether plaintiff had complied with his promises. Plaintiff had not. According to Torregrosa's manual calculations, plaintiff was 0.4% below his 1984 sales,¹⁵ not including a credit for a return of an order that would put plaintiff's sales 1.1% below 1984 sales.

Brigantty and Mendez met with Torregrosa. They all decided to fire plaintiff because his 1985 sales were below his quota and, more importantly, under his 1984 sales. In the termination letter,¹⁶ Torregrosa also mentions the two probation periods after which plaintiff failed to make good his sales promises as well as the various oral and written admonitions. Plaintiff was 46 years old when fired.

We must note that during the approximately ten months Torregrosa supervised plaintiff, relations between them were not good. In his deposition, plaintiff said Torregrosa was "always pressuring him in an arbitrary manner"¹⁷ and "to the point of exasperation."¹⁸ Plaintiff characterized his working relationship with Torregrosa as one within a "negative atmosphere."¹⁹ In his motions plaintiff also makes constant reference to the absence of criticism from his supervisors prior to Torregrosa, implying that Torregrosa was picking on him.²⁰

On January 7, 1986, a preliminary sales report for 1985 showed plaintiff's sales were up 1.4% from those of 1984.²¹ Since the report was issued five days after plaintiff's discharge, it was not taken into consideration in the making of that decision. The final 1985 sales report issued on June 2, 1986, confirmed Torregrosa's manual computations prior to firing plaintiff—his sales were 1.1% under the 1984 sales and 19.6% under his 1985 quota.²² This computation took into account plaintiff's 1986 credit notes, i.e., 1986 returns of products sold by plaintiff in 1985.²³

After plaintiff's dismissal, his and nine other territories were reorganized.²⁴ The sales representatives that serve plaintiff's old territory under its reorganization were 28 and 32 years old when they took over.²⁵ The sales in the towns that used to be plaintiff's territory increased from $229,276 when plaintiff worked it in 1985 to $273,341 in 1986, a 19.2% increase.²⁶

Plaintiff was not the only sales representative failing to match his previous year sales. Five other salespersons did not.²⁷ Only one, who was 48 years old, was also discharged. American Cyanamid explained why the other four were not fired.²⁸ "Territory 1" representative's 1985 sales were below those of 1984 because the territory was without a salesperson for 1½ months. "Territory 3" was affected by the loss of a major client who decided to stop purchasing merchandise from the salesperson in charge and instead started to buy directly from its parent company. "Territory 12" 1985 sales were .2% below 1984 sales because its sales representative, Gilberto Irizarry, suffered an aggravation of a heart condition. Irizarry was sixty years old when plaintiff was fired and had worked with American Cyanamid for 40 years. "Territory 20", which used to be Torregrosa's territory before being made plaintiff's supervisor, was vacant for 1½ months and, thus, its 1985 sales were below those of 1984.

Turning now to the applicable law, a very recent decision of the Court of Appeals for the First Circuit, Dea v. Look, 810 F.2d 12 (1st Cir.1987), explains the procedure we must follow in determining whether summary judgment should be granted as to an ADEA action. We must first find whether plaintiff has made a prima facie case. To that effect plaintiff typically will prove that 1) he is within the protected age group, that is, 40 to 65 years; 2) he was discharged; 3) he was replaced by a younger person outside the protected age group; and 4) he was qualified to do the job. Dea, 810 F.2d at 14, n. 1, following, Loeb v. Textron, Inc., 600 F.2d 1003, 1008 (1st Cir. 1979). Or, plaintiff may also meet his burden by presenting direct evidence that he was discharged because of age. Id., at 1014, n. 12. Either way, plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of evidence. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981).

If plaintiff makes his prima facie case, the burden of production then shifts to the employer. He must articulate a plausible, non-discriminatory reason for the dismissal. Dea, 810 F.2d at 15. Whether defendant has made an acceptable rebuttal is for the court, not a jury, to decide. Id. at 16. If a sufficient explanation is given, "plaintiff continues to carry the burden of showing discriminatory intent, and the relevant question is whether the given reason was a pretext for discrimination." Id. at 15.

It is not enough for plaintiff to show that the

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