Flamand v. American Intern. Group, Inc.

• Decision Date: 17 October 1994
• Docket Number: Civ. No. 92-1541 (HL).
• Citation: 876 F. Supp. 356
• Parties: Luis V. FLAMAND, Jr., et al., Plaintiffs, v. AMERICAN INTERNATIONAL GROUP, INC., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

876 F. Supp. 356

Luis V. FLAMAND, Jr., et al., Plaintiffs, v. AMERICAN INTERNATIONAL GROUP, INC., et al., Defendants.

Civ. No. 92-1541 (HL).

United States District Court, D. Puerto Rico.

October 17, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ruben T. Nigaglioni, Ledesma, Palou & Miranda, Nilda M. Navarro-Cabrer, Hato Rey, PR, for plaintiffs Luis V. Flamand, Jr., Diana C. Mendez Ondina, Conjugal Partnership Composed Between Luis V. Flamand, Jr. and Diana C. Mendez Ondina.

Vicente J. Antonetti, Goldman, Antonetti & Cordova, San Juan, PR, P. Kevin Connelly, Connelly, Sheehan & Moran, Chicago, IL, for defendants American Intern. Group, Inc., American Intern. Underwriters, American Intern. Underwriters Corp., American Intern. Underwriters, American Intern. Underwriters Caribbean, Inc., Peter Hammer, Gloria Subirats.

OPINION AND ORDER

LAFFITTE, District Judge.

Before the Court are a flurry of motions for summary judgment and motions to dismiss filed by the parties. First, the Court shall address the Individual Defendants' Motion For Summary Judgment (dkt. no. 163), Corporate Defendants' Motion For Summary Judgment (dkt. no. 164), Plaintiffs' Opposition To The Corporate Defendants' And The Individual Defendants' Motions For Summary Judgment (dkt. no. 177), and Plaintiffs' Brief thereto (dkt. no. 179). Next, the Court shall discuss Defendant's Joint Motion For Partial Summary Judgment (dkt. no. 69), Plaintiffs' Opposition To Defendants' Motion For Partial Summary Judgment (dkt. no. 80), and Plaintiffs' Brief thereto (dkt. no. 81). Thereafter, the Court shall address Defendants' Joint Motion To Dismiss The Defamation Claim (dkt. no. 70) and Plaintiffs' Opposition To Motion To Dismiss To Defamation Claim (dkt. no. 79). And Finally the Court shall discuss Defendants' Motion To Dismiss And/Or For Summary Judgment (dkt. no. 6), Plaintiffs' Opposition thereto (dkt. no. 27), Defendants' Renewed Motion To Dismiss And/Or For Summary Judgment (dkt. no. 34), Plaintiffs' Opposition thereto (dkt. no. 44), Defendants' Reply Brief Supporting Motion To Dismiss Mrs. Mendez Ondina's Claims (dkt. no. 71), Plaintiffs' Opposition To Defendants' Reply Brief Supporting Motion To Dismiss Mendez Ondina's Claim (dkt. no. 82), and Plaintiffs' Supplemental Opposition to Motion To Dismiss And/Or For Summary Judgment (dkt. no. 100).

I. BACKGROUND

Plaintiffs are Luis V. Flamand, Jr. ("Flamand"), former president of AIU Caribbean, his wife, Diana C. Mendez Ondina ("Mendez"), and the conjugal partnership constituted between them. Defendants are American International Group, Inc. ("AIG"), American International Underwriters Corporation ("AIU"), American International Underwriters Caribbean, Inc. ("AIU Caribbean"), Peter Hammer, former supervisor of Flamand, and Gloria Subirats, Personnel Director of the Latin American Division of AIU. Flamand has brought suit under the Age Discrimination In Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. and Law 100, 29 L.P.R.A. § 146, et seq. claiming disparate treatment, retaliation, harassment and constructive discharge, under Law 80, 29 L.P.R.A. § 185, et seq. claiming wrongful discharge and failure to pay severance pay, under Articles 1802 and 1803 of the Puerto Rico Civil Code, 31 L.P.R.A. §§ 5141 and 5142 claiming abuse of process, malicious prosecution and tortious interference, under Article 1401 of the Puerto Rico Civil Code, 31 L.P.R.A. § 2991, et seq. claiming breach of contract, and under Puerto Rico Law claiming defamation. This Court has jurisdiction under 28 U.S.C. § 1331, federal question jurisdiction, and 28 U.S.C. § 1367, supplemental jurisdiction.

II. STANDARDS

A. Motion To Dismiss Standard

"The Court's function on a Rule 12(b)(6) motion is not to weigh the evidence which might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir.1990). Thus, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st Cir.1991). The court must accept as true the well-pleaded factual averments contained in the complaint, while at the same time drawing all reasonable inferences therefrom in favor of the plaintiff. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 276, 96 S.Ct. 2574, 2576-77, 49 L.Ed.2d 493 (1976); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). But see, Correa-Martinez, 903 F.2d at 52 ("despite the highly deferential reading which we accord a litigant's complaint under Rule 12(b)(6), we need not credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation.").

B. Summary Judgment Standard

Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The opposing party must then designate specific facts that show that there is a genuine triable issue. Id. at 324, 106 S.Ct. at 2553; Fed.R.Civ.P. 56(e). The nonmoving party cannot rest upon mere conclusory allegations, improbable inferences and unsupported speculation. Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993), reh'g denied, March 12, 1993. Likewise, the nonmoving party cannot rest on the pleadings but should set forward specific facts showing that there are genuine triable issues. Id. Supporting and opposing affidavits shall be based upon personal knowledge and set forth facts that would be admissible into evidence at trial. Fed. R.Civ.P. 56(e). All material facts set forth in the movant's statement of uncontested facts will be deemed to be admitted unless controverted by the nonmovant in a separate, short, concise statement of material facts at issue. Local Rule 311.12. See also, Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 930 (1st Cir.1983).

A fact is material, if under applicable substantive law, it may affect the result of the case. Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71, 73 (1st Cir.1990). A dispute is genuine only if there is conflicting evidence that requires a trial to resolve the discrepancy. Id. In determining whether summary judgment is warranted, the court views the facts alleged in the light most favorable to the non-moving party and must indulge all inferences in favor of that party. Rossy v. Roche Prods., Inc., 880 F.2d 621, 624 (1st Cir.1989); John & Kostas Serv. Station, Inc. v. Cumberland Farms, Inc., 948 F.2d 821, 822 (1st Cir.1991).

III. DISCUSSION

A. Individual Defendants' Summary Judgment Motion

Individual Defendants' Motion, dkt. no. 163, requests summary judgment on the following claims: (1) ADEA Claims, (2) Law 80 severance pay claim, (3) contract claim for severance pay, and (4) defamation claims.

1. ADEA Claims

Defendants argue that Hammer, as Flamand's former supervisor, is only liable in his official capacity under ADEA's "employer" definition, and that Subirats is not liable at all because she does not fit ADEA's definition of "employer." Defendants argue that Subirats was (1) not even Flamand's supervisor and (2) did not exercise significant control over Flamand.

Plaintiffs argue that supervisors are liable under ADEA in both their official and personal capacity. Additionally, plaintiffs argue that Subirats had authority over decisions directly affecting Flamand's conditions of employment. For example, plaintiffs state that Subirats attempted to change Flamand's home base from Los Angeles to New York and that Subirats withheld Flamand's last pay check.

Under ADEA, it is unlawful "for an employer to ... 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). The term "employer" includes any agent of an employer. 29 U.S.C. § 630(b). The First Circuit is silent as to the issue of whether supervisors constitute "employers" under ADEA. Most courts, usually following Title VII precedent,¹ hold a supervisor liable as an "employer" under ADEA in the supervisor's official capacity only.² However, a few courts have found supervisors to be both individually and officially liable under ADEA. House v. Cannon Mills, 713 F.Supp. 159 (M.D.N.C.1988) (supervisors individually liable under ADEA); Wanamaker v. Columbian Rope, 740 F.Supp. 127 (N.D.N.Y.1990).

In determining whether or not a supervisor is liable under ADEA as an "employer," courts must not lose sight of the statutory fact that violations of ADEA are considered violations of the Fair Labor Standard Act ("FLSA"), 29 U.S.C. §§ 201, et seq.,³ and that ADEA explicitly incorporates the remedial scheme set forth in sections 216(b)-(d)⁴ and 217⁵ of FLSA.⁶ FLSA provides a cause of action against employers who violate the FLSA provisions prohibiting certain conduct within the employer-employee relationship and within the employment context. FLSA is a labor law, not a tort law. Therefore, ADEA's special relationship with FLSA underscores the actuality that ADEA is a labor law, a law dealing with employer-employee relationships, particularly as it pertains to enforcement and remedial actions.

Mirroring FLSA's remedial scheme, ADEA permits the recovery by a successful plaintiff of the following amounts: (1) unpaid minimum wages, (2) unpaid overtime compensation, and (3) upon a showing of a willful...