Delanoy v. Aerotek, Inc., Civil No. 07-1871(DRD).

• Decision Date: 31 March 2009
• Docket Number: Civil No. 07-1871(DRD).
• Citation: 614 F.Supp.2d 200
• Parties: Mario C. DELANOY, et al., Plaintiff v. AEROTEK, INC., Defendant.
• Court: U.S. District Court — District of Puerto Rico

614 F.Supp.2d 200

Mario C. DELANOY, et al., Plaintiff v. AEROTEK, INC., Defendant.

Civil No. 07-1871(DRD).

United States District Court, D. Puerto Rico.

March 31, 2009.

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Ruben T. Nigaglioni, Rafael J. Martinez Garcia, Nigaglioni & Ferraiuoli Law Offices PSC, San Juan, PR, for Plaintiffs.

Shiara L. Dilone-Fernandez, Carl E. Schuster, Schuster & Aguilo LLP, San Juan, PR, for Defendant.

OPINION AND ORDER

DANIEL R. DOMINGUEZ, District Judge.

I. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff, Mario C. Delanoy ("Delanoy"), began his employment with defendant, Aerotek, Inc. ("Aerotek"), around September or October of 2004 as General Director in Aerotek's Puerto Rico offices. (Docket 23-3 at 63; Docket 23-5 at 12-13) In May of 2005, Delanoy's position at Aerotek changed from General Director to Director of Business Development. (Docket 23-3 at 136-37; Docket 23-7.) Delanoy filed an initial charge before the Puerto Rico Department of Labor Antidiscrimination Unit ("ADU") on March 22, 2006 alleging discrimination on the basis of age. (Docket 23-17.) Delanoy was placed on a Performance Improvement Plan ("PIP") on April 26, 2006. (Docket 23-22.) Aerotek subsequently discharged Delanoy on June 23, 2006. (Docket 23-3 at 398.) On the same day, Delanoy filed another ADU charge alleging retaliation based on his filing of the previous ADU charge. (Docket 23-27.) On September 19, 2007, Delanoy brought the present action alleging discrimination and retaliation pursuant to: (1) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (2000); (2) Puerto Rico Law 100 ("Law 100"), P.R. LAWS ANN. tit. 29, § 146 (2006); (3) Puerto Rico Law 80 ("Law 80"), P.R. LAWS ANN. tit. 29, § 185a-b (2006); Puerto Rico Law 115 ("Law 115"), P.R. LAWS ANN. tit. 29, § 194a (2006); and (4) Article 1802 of the Puerto Rico Civil Code ("Article 1802"), P.R. LAWS ANN., tit. 31, § 5141 (2006).

Pending before the court is the motion for summary judgment, (Docket 23), filed by Aerotek, the opposition to said motion for summary judgment, (Docket 34), filed by Delanoy, and Aerotek's reply thereto, (Docket 41).

II. LEGAL ANALYSIS

A. Summary Judgment Standard

The framework of Fed.R.Civ.P. 56 provides that it is appropriate to enter summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986); Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18, 22 (1st Cir.1993). Pursuant to the language of the rule, the moving party bears the two-fold burden of showing that there are "no genuine issue as to any material facts," and that he is "entitled to judgment as a matter of law." Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997). When the moving party asserts that the competent evidence clearly demonstrates that it is entitled to judgment and after the moving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists "a trial worthy issue as to some material fact." Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997).

At the summary judgment stage, the trial court examines the entire record "in the light most flattering to the nonmovant and indulges all reasonable inferences in that party's favor. Only if the record, viewed in the manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment." Cadle Company v. Hayes, 116 F.3d 957 at 959-60 (1st Cir.1997); see also Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000); Cortes-Irizarry, 111 F.3d at 187; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). "`Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see also Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-555, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, n. 6, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962).

Notwithstanding that there is no opposition to a summary judgement, the Court must entertain the motion on the merits and may not grant the request as a sanction even for failure to file an opposition. See de la Vega v. San Juan Star, 377 F.3d 111 (1st Cir.2004). Issues of motive and intent as to the conduct of any party will normally preclude the Court from granting summary judgement. Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 677 (1st Cir.1996)(reversing summary judgement and emphasizing that "determinations of motive and intent ... are questions better suited for the jury")(internal quotation marks omitted) (citation omitted)

We believe that summary judgment procedures should be used sparingly ... where the issues of motive and intent play leading roles ... It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of `even handed justice.'

See Poller v. Columbia Broad. Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); cf. Pullman-Standard v. Swint, 456 U.S. 273, 288-90, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (discriminatory intent is a factual matter for the trier of fact); see also William Coll v. PB Diagnostic Sys., Inc., 50 F.3d 1115, 1121 (1st Cir.1995); Oliver v. Digital Equip. Corp., 846 F.2d 103, 107 (1st Cir.1988); Lipsett v. University of P.R., 864 F.2d 881, 895 (1st Cir.1988). "[J]ury judgments about credibility are typically thought to be of special importance. Thus courts are particularly cautious about granting summary judgment in such cases." See Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir.1983)(citing Gual Morales v. Hernandez Vega, 579 F.2d 677, 680-81 (1st Cir.1978)); see also Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir.2000). However, "even in cases where elusive concepts, such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir.1996).

B. Disparate Treatment under the ADEA

The ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (2000). The ADEA protects individuals over the age of forty (40). See Gonzalez v. El Dia, Inc., 304 F.3d 63, 68 (1st Cir.2002). A plaintiff may rely on direct or circumstantial evidence in making a claim of employment discrimination. See Hidalgo v. Overseas Condado, 120 F.3d 328, 332-33 (1st Cir. 1997). The trial court must evaluate the evidence presented as a whole in order to determine if such evidence, whether direct or circumstantial, is sufficient for a reasonable fact-finder to infer that the employer's decision was motivated by a discriminatory animus based on membership in a protected class. See Hidalgo, 120 F.3d at 335 (citing LeBlanc v. Great American Ins. Co., 6 F.3d 836, 843 (1st Cir.1993)).

1. Direct Evidence of Disparate Treatment

A plaintiff may prove employment discrimination by using direct evidence. See Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 5 (1st Cir.2000). "Direct evidence is evidence which, in and of itself, shows discriminatory animus." Jackson v. Harvard University, 900 F.2d 464, 467 (1st Cir.1990); Mandavilli v. Maldonado, 38 F.Supp.2d 180, 192 (D.P.R.1999). "`[S]tray workplace remarks,' as well as statements made either by nondecisionmakers or decisionmakers not involved in the decisional process, normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus." Gonzalez, 304 F.3d at 69. "It also does not include statements capable of being interpreted as both discriminatory and benign." Rios-Jimenez v. Principi, 520 F.3d 31, 40 (1st Cir.2008). Statements as direct evidence cannot be "inherently ambiguous" and must give a "high degree of assurance" that discrimination was the reason for the adverse employment action. Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir.2002) (citing Fernandes v. Costa Bros. Masonry, 199 F.3d 572, 583 (1st Cir.1999)).

There are only three statements in the record allegedly reflecting an age motivated bias. Delanoy states in his deposition that Brett Eggleston ("Eggleston") told him that Eggleston envisioned him in a corporate role due to his knowledge, capabilities, and age. (Docket 36-2 at 121-22, 129.) Delanoy also states in his deposition that Hill called him a "dam [sic] fucking old guy." (Id. at 254.) Neither statement has clear support in the record for when or in what context they were made.¹ Aerotek presents an e-mail from Hill, in which he claims that he never made any discriminatory statements to Delanoy. (See Docket 23-9.) Aerotek also points to Hill's deposition in which he states that on only one occasion did he hear an employee at Aerotek refer to Delanoy as "something to the effect of `old man.'" (Docket 41-3 at 44-45.) None of the alleged statements have any clear context related to the...