Cuello Suarez v. PUERTO RICO ELEC. POWER AUTHORITY

• Decision Date: 29 June 1992
• Docket Number: Civ. No. 88-0133(PG).
• Citation: 798 F. Supp. 876
• Parties: Candelaria CUELLO SUAREZ, et al., Plaintiffs, v. PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA), Defendant.
• Court: U.S. District Court — District of Puerto Rico

798 F. Supp. 876

Candelaria CUELLO SUAREZ, et al., Plaintiffs, v. PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA), Defendant.

Civ. No. 88-0133(PG).

United States District Court D. Puerto Rico.

June 29, 1992.

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A. Santiago-Villalonga, Santurce, Puerto Rico, for plaintiffs.

Karen M. Loyola-Peralta, San Juan, Puerto Rico, for defendant.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

I. Introduction

This multi-headed action combines (1) a claim of employment discrimination on the basis of nationality pursuant to § 703 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2 ("Title VII"), (2) the local counterpart of Title VII — Law 100 of June 30, 1959, as amended, 29 L.P.R.A. § 146 ("Law 100" or "§ 146") — and (3) a claim under 42 U.S.C. § 1981 ("§ 1981"), which guarantees "the right to make and enforce contracts." Plaintiffs also seek reasonable attorney fees pursuant to 42 U.S.C. § 2000e-5(g).

II. Findings of Fact

For a detailed analysis of the facts, the Court refers the avid reader to the unfathomable depths of the archives of the Clerk's Office. The salient facts as they pertain to a resolution of the legal issues presented by the parties in their post-trial briefs are as follows.

Plaintiff Candelaria Cuello Suárez ("Ms. Cuello"), is a national of the Dominican Republic, residing in the Commonwealth of Puerto Rico. Ms. Cuello holds a B.A. in Business Administration with a concentration in accounting. She is also a licensed C.P.A.¹

Defendant, Autoridad de Energía Eléctrica de Puerto Rico ("PREPA"), is a public corporation with legally cognizable standing, properly incorporated pursuant to the laws of the Commonwealth of Puerto Rico. Employing more than 15 employees and affecting interstate commerce, it is an employer as such term is defined at 42 U.S.C. § 2000e(b); Defendant's Post Trial Brief ("Def's Br.") at ¶ 3.

Ms. Cuello was hired by PREPA on July 6, 1971. She has been at all times an employee in good standing, receiving above average performance reviews on all her evaluations. Since 1971, Ms. Cuello has taken and approved a variety of tests required for promotion. These include: general classification, administrative aptitude, consumer services clerk, mathematics, chemistry, aptitude, typing, psychological evaluation, accounting and specialist in accounting systems. See Plaintiffs' Exhibit ("Pls' Exh.") 9(a). Between 1981 and 1987, Ms. Cuello applied and was rejected for a total of 77 managerial/supervisory positions. See Pls' Br., p. 3; see also Pls' Exh. 9(a). Although there is some dispute as to her qualifications for some of the positions, see Def's Br., ¶ 12, and even though defendant emphasizes that some of the positions were phased out before they could be filled, it is largely undisputed that as of 1989, Ms. Cuello applied and was turned down for dozens of managerial positions even though she was, in many instances, overqualified.²

On or about July 29, 1987, plaintiffs filed a claim of discrimination on the basis of national origin with the New York Office of the Equal Employment Opportunity Commission and the Director of the Anti-Discrimination Unit of the Department of Labor and Human Resources of the Commonwealth of Puerto Rico. The Anti-Discrimination Unit issued a right to sue letter on December 29, 1987. Plaintiffs' Amended Complaint, ¶¶ 11, 12, 16.

On January 26, 1988, plaintiffs filed with this Court the allegations which form the core of this action. Subsequent to the initiation of these proceedings, Ms. Cuello applied for a managerial position as Supervisor of Consumer Services. Although Ms. Cuello had eighteen years experience in the area and exceeded the requisite academic qualifications, the position was awarded to a person with only two years experience and a B.S. in Biology.

A. Trial

During trial and as a means of establishing the prima facie case, plaintiffs introduced a comparative composite of all the jobs that Ms. Cuello applied for and the persons to whom the same were eventually awarded. See Pl.'s Ex. 9(a). Those individuals who eventually occupied the positions Ms. Cuello applied for fall within three easily distinguishable categories: less experienced, less qualified, and unqualified. Falling in the unqualified category were those employees who were awarded the position after occupying the same on a temporary basis.

At trial and in its brief, PREPA argues that these employees were selected because they had experience in the jobs they were ultimately awarded. At trial, plaintiffs countered that PREPA's "grooming" of unqualified individuals was and is a backhanded way of excusing PREPA's decision not to select her on the basis of her place of origin.

Evidence introduced at trial supports this contention. At trial, the evidence disclosed that PREPA regularly hired temporary, unexperienced employees to fill positions that were later opened for applications. However, these positions were invariably filled by the same temporary employees PREPA initially hired with the intent of later claiming that they had the necessary experience and qualifications they lacked in the first place. See, e.g., Pls.'s Exh. 6. This practice, plaintiffs contend, was and is still being used as an excuse to deny promotion to Ms. Cuello.

At trial, PREPA challenged Ms. Cuello's contention by introducing evidence of its facially neutral selection process. Offered as evidence were documents evidencing the neutral selection procedures and affirmative action programs in force at PREPA. According to PREPA regulations, vacant managerial positions or newly created positions

... classified under the grade of MI to MV (managerial level positions) are simultaneously published in all the dependencies of the Authority for a period of ten (10) calendar days.... The interested supervisor selects the one that he/she considers to be the best candidate in accordance to the effective norms and in accordance to the following priority order:

. . . . .

a) Regular and temporary managerial employees with one or more years of service with the authority.

b) Non-Regular employees.

c) Candidates from the Registry of Eligibles.

See Def's Exhibit 13, General Employment Norms. (Emphasis supplied).

Further evidence disclosed that PREPA's affirmative action program guarantees

... employment and personnel practices ... offering equal opportunity for everyone ... making full and effective utilization of qualified persons, regardless of race, age, color, religion, sex, national origin, and mental or physical disability.

. . . . .

... and that all matters related to recruiting, hiring, training, compensation, benefits, promotions, transfers, layoffs, recall from layoffs, company-sponsored educational, social, and recreational programs and all behavior on the job are free of discriminatory practices.

See Def. Exh. C, Affirmative Action Plan, p. 1.

Keenly aware that facially neutral selection criteria is a poor breakwater against claims of intentional discrimination or disparate impact cases, PREPA argued that, if anything, plaintiffs' claim was not one of discriminatory treatment but of discriminatory impact. The claim, defendant contended, fails because plaintiffs do not present evidence that establishes a pattern of discrimination.

Following on this vein, defendant sought to vanquish plaintiffs' prima facie case by introducing evidence of supervisory jobs awarded to nationals of the Dominican Republic. See Def. Exh. D(1). According to PREPA's summary of foreign employee records, a total of five nationals from the Dominican Republic occupied supervisory jobs at the time of trial. See Def.Exh. D(1), D(3). This evidence was basically endorsed and repeated at trial by José A. del Valle Vázquez, Executive Director of Finance at PREPA. What defendant self-servingly omits from its analysis of the data is that these Dominican nationals were all in highly technical field-jobs outside the office.

PREPA also attempts to mitigate the impact of Ms. Cuello's prima facie case by introducing evidence that she did not have the qualifications necessary for eight of the seventy-seven (77) positions she applied for. Finally, as an explanation for its continued failure to promote Ms. Cuello, PREPA argues that it did not discriminate against Ms. Cuello but merely underutilized her abilities and qualifications.

III. Legal Theories: Post Trial Briefs

In its post trial brief, PREPA raises a series of procedural and legal barriers to plaintiffs' Title VII, § 1981 and Law 100 claims. First, defendant seeks to re-cast Ms. Cuello's discriminatory treatment claim as one of disparate impact, indulging in the fantasy that this Court will somehow confound the two and make it easier for defendant to prevail. Def's Br., pp. 5-13. Second, defendant contends that under the new analysis of § 1981 announced in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), promotion to a supervisory position does not constitute a new contract between the parties and is therefore not sufficient to state a claim for which relief can be granted under § 1981. Id., p. 15. Third, defendant contends that under 42 U.S.C. § 1981 discrimination solely on the basis of national origin is not actionable. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987). Finally, defendant states that evidence introduced at trial does not suffice to find a violation of Law 100.³ Id., at p. 16.

Unimpressed by this three pronged attack, plaintiffs merely state that the proof presented at trial is sufficient to recover under the three causes of action.

IV. Conclusions of Law

By its terms, Title VII proscribes employer discrimination on the basis of race, color, religion, sex or national origin. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Overt and covert discrimination practices are banned by Title VII, protecting...