Martinez–burgos v. Guayama Corp..

• Citation: 656 F.3d 7,113 Fair Empl.Prac.Cas. (BNA) 253,94 Empl. Prac. Dec. P 44273
• Decision Date: 26 August 2011
• Docket Number: No. 10–1372.,10–1372.
• Parties: Jayne MARTINEZ–BURGOS; Jose Colon–Martinez and the Conjugal Partnership, Plaintiffs, Appellants,v.GUAYAMA CORP., a/k/a Baxter; Baxter Healthcare; Baxter Pharmaceutical, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

656 F.3d 7

113 Fair Empl.Prac.Cas. (BNA) 253

94 Empl. Prac. Dec. P 44,273

Jayne MARTINEZ–BURGOS; Jose Colon–Martinez and the Conjugal Partnership, Plaintiffs, Appellants,

v.GUAYAMA CORP., a/k/a Baxter; Baxter Healthcare; Baxter Pharmaceutical, Defendant, Appellee.

No. 10–1372.

United States Court of Appeals, First Circuit.

Submitted March 9, 2011.Decided Aug. 26, 2011.

William Nadal Colon on brief for appellants.Diana M. Espinosa–Nuñez, Juan J. Casillas–Ayala and Fiddler González & Rodríguez, PSC on brief for appellee.Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.HOWARD, Circuit Judge.

In this case involving a claim of employment discrimination based on pregnancy, plaintiffs Jayne Martinez–Burgos (“Martinez”) and her spouse Jose Colon–Martinez appeal from an order granting summary judgment in favor of Martinez's former employer, defendant Baxter Healthcare S.A., d/b/a Baxter Healthcare of Puerto Rico (“Baxter”).¹ We affirm.

I. BACKGROUND

Before we sketch the relevant factual background, there is a threshold issue about which record facts are properly before us. Baxter filed a motion for summary judgment in December 2008. Martinez filed a timely opposition, complete with exhibits, in support of her factual assertions. In connection with her opposition, Martinez was granted leave to file the exhibits first in Spanish and to later provide the required English translations.² The summary judgment motion was subsequently referred to a magistrate judge, who issued a report and recommendation in November 2009. The magistrate judge refused to consider Martinez's still-untranslated exhibits and found that Martinez had not provided a proper counter-statement of material facts, as required by Local Rule 56(c). As a result of these failings, the magistrate judge ruled that Baxter's statement of material facts would be deemed as admitted. The magistrate judge recommended that summary judgment be granted on the plaintiffs Title VII pregnancy claims and that remaining state law claims be dismissed without prejudice.

Martinez eventually filed the translations with her objection to the report and recommendation—approximately eleven months after she had originally filed the exhibits. The district court, however, declined to consider any documents or other facts not first presented to the magistrate judge, and granted summary judgment to Baxter.

Ordinarily, we would review the district court's decision regarding Martinez's local rules violations for abuse of discretion. See Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st Cir.2004). Here, however, Martinez has waived the issue. Her appellate argument on this point is only that she “complied with the District Court Local Rules” when she filed her opposition to summary judgment. Such a bare contradiction is plainly insufficient as an argument. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) ( “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argument, are deemed waived.”).³ Martinez's attempt to revive this issue in her reply brief is also deficient. See United States v. Vanvliet, 542 F.3d 259, 265 n. 3 (1st Cir.2008) (“Arguments raised for the first time in a reply brief are waived.”). Accordingly, we set forth the facts of this case as culled from the record and from the uncontested facts proffered by Baxter and deemed admitted by appellants.

Martinez was employed by Kelly Services, Inc. (“KS”), which provided temporary staffing to Baxter's pharmaceutical plant in Guayama, Puerto Rico. Through KS, Martinez was assigned to work at the Guayama plant as a “Fill & Pack Operator.” Her temporary work assignment commenced in September 2003, and consisted of packing, capping, labeling and inspecting sterile bottles of anesthesia. She worked as an assembly line employee and was responsible for making sure that the bottles to be filled with anesthesia were “clean.” Baxter generally renewed Martinez's temporary assignment through KS on a monthly basis.

During her time at the plant, Martinez was notified and received training about various Standard Operating Procedures (“SOPs”) and Good Manufacturing Practices (“GMPs”) relevant to her work. GMP violations could subject Baxter to serious consequences, including fines, plant shutdowns, permit revocations and product recalls. Martinez was also specifically trained at least twice on Baxter's relevant “Personal Attire and Hygiene” policy.

On several occasions, Martinez was cited for failing to comply with company regulations or GMPs. In October 2003, for example, not long after she began working at Baxter, Martinez was orally reprimanded for violating Baxter's dress code. She was given an Employee Counseling Report (“ECR”) in connection with the reprimand, and signed the report without disputing its contents. In December 2004, Martinez was reprimanded for chewing gum in violation of Baxter's GMPs, as well as the Personal Attire and Hygiene policy. The ECR in connection with this incident observed that Martinez had on several occasions been admonished for chewing gum in the workplace and that if she were to repeat such conduct, Baxter would terminate her employment immediately. Martinez signed this ECR as well without disputing its contents. In addition to these incidents, Martinez was also verbally reprimanded on a few occasions for wearing jewelry at work.

Baxter also provided evaluations of Martinez's performance to KS. One such evaluation noted several instances of noncompliance with GMPs and violation of Baxter's Personal Attire and Hygiene Policy. Specifically, the evaluation observed that Martinez had been reprimanded for chewing gum, wearing jewelry and not wearing eye protection. Another evaluation pointed out that Martinez had a persistent tardiness problem.

In her final evaluation, completed on or around February 28, 2005, Martinez's supervisor pointed out that Martinez could improve her attendance, punctuality, professionalism and attitude.

Earlier in February 2005, an increase in production needs prompted Baxter to create five new, full-time Fill & Pack Operator positions. Martinez applied for one of these newly created positions. Among the requirements for the position was the demand that candidates have strong GMP knowledge and safety awareness.

Martinez and the other candidates for the positions were interviewed on February 25, 2005. All of the interviews were conducted by the same four-member panel using the same questionnaire. There were ten categories, known as competence standards, under which each applicant was evaluated. The five highest-scoring interviewees would be considered to fill the new openings. Martinez did not rank among the top five candidates. In addition, she did not achieve the minimum score to qualify for the position in eight of the ten competence standards. The successful candidates were hired in May and July 2005; Martinez was not among them.

At the time that Martinez sought the full-time position, she was approximately seven months pregnant. She began her maternity leave on March 15, 2005, and gave birth on March 26, 2005. Martinez's last temporary contract had a term of March 7 to April 15, 2005. It was the eighth contract renewal for Martinez after she informed Baxter of her pregnancy in August 2004. KS paid Martinez's maternity leave benefits until about May 10, 2005. Although she applied for temporary employment, Martinez was not rehired by Baxter after her leave ended. She subsequently obtained other work through KS.

In her complaint, Martinez asserted two distinct discrimination claims. First, she contended that Baxter discriminated against her because of her pregnancy when it refused to hire her for the full-time Fill & Pack Operator position. Second, she claimed that Baxter discriminated against her because of her pregnancy when it refused to renew her temporary services contract after her maternity leave.

As previously noted, the magistrate judge recommended granting Baxter's summary judgment motion with respect to the Title VII pregnancy discrimination claims and recommended dismissing Martinez's supplemental state law claims without prejudice. The district court adopted the report and recommendation with only minor modifications. This appeal followed.

II. DISCUSSION

We review the district court's grant of summary judgment de novo. Fontanez–Nuñez v. Janssen Ortho LLC, 447 F.3d 50, 54 (1st Cir.2006). Summary judgment is appropriate where “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id.; Fed.R.Civ.P. 56(c). Issues are not suitable for summary judgment if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We view the summary judgment record in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party's favor. Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir.2004).

Title VII makes it unlawful “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex.” 42 U.S.C. § 2000e–2(a)(1). The Pregnancy Discrimination Act of 1978 (“PDA”) extended Title VII's protection against discrimination to specifically include discrimination “on the basis of pregnancy.” 42 U.S.C. § 2000e(k). “It is settled under Title VII that an employer may not discharge an employee based on the categorical fact of her pregnancy.” Smith v. F.W. Morse & Co., 76 F.3d 413, 424 (1st Cir.1996). A pregnant employee may be discharged however, if the employer “does so for legitimate reasons unrelated to her pregnancy.” Id. Where, as here, there is no direct evidence of discrimination, we apply the familiar burden shifting framework to Martinez's Title VII claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93...