Micheo-Acevedo v. Stericycle of P.R., Inc.

• Decision Date: 27 July 2018
• Docket Number: No. 17-1431,17-1431
• Citation: 897 F.3d 360
• Parties: Marisol MICHEO-ACEVEDO, Plaintiff, Appellant v. STERICYCLE OF PUERTO RICO, INC., Defendant, Appellee, Angel Rivera-Morales; Osvaldo Santana-Rivera, Defendants.
• Court: U.S. Court of Appeals — First Circuit

897 F.3d 360

Marisol MICHEO-ACEVEDO, Plaintiff, Appellant

v.STERICYCLE OF PUERTO RICO, INC., Defendant, Appellee,Angel Rivera-Morales; Osvaldo Santana-Rivera, Defendants.

No. 17-1431

United States Court of Appeals, First Circuit.

July 27, 2018

Juan Rafael González-Muñoz, with whom Carlos M. Vergne-Vargas, Juan C. Nieves-González, and González-Muñoz Law Offices, PSC, San Juan, PR, were on brief, for appellant.

Tacy F. Flint, Chicago, IL, with whom Luis D. Ortiz Abreu, Javier G. Vázquez Segarra, Goldman Antonetti & Córdova, LLC, Brian J. Gold, San Juan, PR, Natalie C. Chan, and Sidley Austin LLP, Chicago, IL, were on brief, for appellant.

Before Torruella, Lynch, and Barron, Circuit Judges.

BARRON, Circuit Judge.

Marisol Micheo-Acevedo ("Micheo") appeals an order granting summary judgment to Stericycle of Puerto Rico ("Stericycle") and other defendants on her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and dismissing without prejudice her related pendent Puerto Rico law claims. We affirm.

I.

Stericycle's services include managing medical waste for hospitals. In April 2012, Stericycle hired Micheo as a field sales representative. A little less than a year later, in March 2013, Stericycle launched a program called "BioSystem," to which Micheo was then assigned in March 2013. Under that program, through contracts with hospitals, Stericycle installed containers to dispose of sharp, biomedical objects like syringes.

Stericycle terminated Micheo's employment in January 2014. Micheo brought suit against the company and two of its managers in the District Court for the District of Puerto Rico on February 3, 2015. She alleged violations of Title VII, the Americans with Disabilities Act, 48 U.S.C. §§ 12101, et seq., the Family and Medical Leave Act, 29 U.S.C. §§ 2601 - 54, and six Puerto Rico laws, P.R. Laws Ann., tit. 29, §§ 146 et seq., 185(a) et seq., 194 et seq., 1321 et seq. ; P.R. Laws Ann. tit. 1, §§ 501 et seq., 511 et seq.

On July 11, 2016, the defendants filed a motion for summary judgment as to all of Micheo's claims. Micheo then filed a motion to strike the defendants' summary judgment motion pursuant to Rule 56 of the Local Rules for the District Court of Puerto Rico ("Local Rule 56"), which requires that such motions provide citations to supporting record evidence. The District Court denied Micheo's motion.

Several months later, on November 14, 2016, Micheo filed an opposition to the defendants' motion for summary judgment. Micheo argued that summary judgment was not warranted on her Title VII claims and her related Puerto Rico law claims, but she abandoned her other federal and Puerto Rico law claims.

On March 31, 2017, the District Court issued an order that granted the defendants' motion for summary judgment as to Micheo's Title VII claims, dismissed with prejudice the federal and Puerto Rico law claims that Micheo had abandoned, and dismissed without prejudice Micheo's remaining pendent Puerto Rico law claims. This appeal then followed.

II.

We start with Micheo's Title VII claim for gender-based disparate treatment. Because Micheo put forward no direct evidence of discrimination, the District Court applied the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in considering the defendants' motion to grant summary judgment as to this claim. Under that framework, to survive summary judgment, Micheo must show that there is a genuine issue of disputed material fact with respect to, among other things, whether her employer subjected her to an adverse employment action. See Lockridge v. The Univ. Of Maine Sys., 597 F.3d 464, 470, 472 (1st Cir. 2010).

We review the District Court's grant of summary judgment de novo. Colón v. Tracey, 717 F.3d 43, 49 (1st Cir. 2013). In performing that review, we must draw "all reasonable inferences ... in favor of the non-moving party," but we are "not obliged to accept as true or to deem as a disputed material fact, each and every unsupported, subjective, conclusory, or imaginative statement made to the Court by a party." Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 47 (1st Cir. 2008) (emphasis omitted).

Micheo argued that the defendants subjected her to an adverse employment action by passing her over for a promotion from her position as a field sales representative in Stericycle's BioSystem Program to the position of "Project Manager" or "Program Manager" of the Integrated Waste Stream Solutions ("IWSS"),¹ an initiative within the BioSystem Program. She contends that the defendants gave the position instead to Jorge Rodríguez-Toro ("Rodríguez"), who was at that time also a field sales representative in the BioSystem Program.

The denial of a promotion to a position can constitute an adverse employment action. See Cartagena v. Sec'y of Navy, 618 F.2d 130, 134 (1st Cir. 1980). The District Court, however, found that, because there was no basis for finding that the position of IWSS Program Manager existed, Micheo could not show that there was a genuine issue of material fact as to whether she had been denied a promotion to it. And we agree.

In challenging the District Court's conclusion on appeal, Micheo does not argue that the fact that Rodríguez held himself out as holding the title of IWSS Program Manager—as the record shows that he did—suffices to create a genuine issue of material fact as to whether the position at issue existed, such that the defendants' refusal to promote her to it constituted an adverse employment action. Indeed, the record shows that Micheo also held herself out as holding a supervisory title—namely, as "Sharps Management System Supervisor"—and she does not contend that the title that Rodríguez held himself out as holding was in and of itself more prestigious than the one she held herself out as holding. Micheo also fails to identify any evidence that would contradict the sworn affidavit of Stericycle's Human Resources manager that, based on her own knowledge and review of Stericycle's payroll records, Stericycle at no point established such a position on its payroll. Micheo instead makes just two arguments to support her contention that the IWSS Program Manager position existed, which she agrees is the necessary predicate for her contention that she was treated adversely by not being promoted to it.

First, Micheo argues that a jury reasonably could find on this record that Stericycle gave Rodríguez a higher salary in return for performing the duties of IWSS Program Manager and thus that the position existed even if it was not formally designated as one on the company's payroll. Second, Micheo argues that a jury could reasonably infer that the position of IWSS Program Manager existed from the evidence in the record that she says would permit a jury to find that, during the time period in which she was working in the BioSystem Program and Rodríguez was holding himself out as having that title, he was acting as her supervisor.

We start with what the record shows with respect to the pay that Rodríguez received while he was at the company. Prior to the creation of the BioSystem Program, Stericycle hired Rodríguez and Micheo as field sales representatives and paid each of them the same salary, $27,000. Then, sometime in 2013, Rodríguez was promoted to a new position within the company—namely, transportation supervisor—for which he received a higher salary.

There is no dispute, however, that Rodríguez received his promotion to this position—and the salary increase that came with it—before either Micheo or Rodríguez began working in the BioSystem Program as field sales representatives. Thus, the fact that he received a higher salary for his promotion to the position of transportation supervisor obviously provides no basis for finding that the position of IWSS Program Manager in the BioSystem Program existed.

The record does show that Rodríguez was later transferred from his position as transportation supervisor to the BioSystem Program. And the record further shows that, following that transfer, Rodríguez held himself out as being the IWSS Program Manager even though he was formally designated as a field sales representative, like Micheo was. But, while Micheo contends that Rodríguez continued to receive his higher salary after he had been transferred into the BioSystem Program, and during the time he was holding himself out as the IWSS Program Manager, the record does not provide a basis for so concluding.

Micheo bases her contrary assertion entirely on Rodríguez's own deposition testimony, but we do not see how it says what she contends that it does. In that deposition, he agreed that, following his transfer to the BioSystem Program from his prior position as Transportation Supervisor, his salary was "reduced back down to the $27,000.00 in Sales." And while Rodríguez did then offer the caveat in his testimony that "what I don't know is if, if it went back to my base salary when, when I began with," he was clear that "there was an adjustment" downwards in his salary in consequence of his having been transferred from the position for which he had received the salary increase to his new position in sales in the BioSystem Program. In fact, when he was asked later on in the deposition whether he was paid more to be the IWSS Program Manager, he testified that he was not.

That leaves only Micheo's contention that the position of IWSS Program Manager existed because the record would permit a jury to find that Rodríguez supervised her while she worked in the BioSystem Program. In making that assertion, Micheo relies on copies of emails from Rodríguez to her that requested that she provide him with information about her performance of her duties.

The District Court concluded, however, that the emails showed only that "at times [Rodríguez] was told to ‘verify with [Micheo] how it went in [a specific hospital]’ ... because Ms. Micheo was not...