Mojica v. Resort

• Decision Date: 13 May 2010
• Docket Number: Civil No. 08-1797 (PG).
• Citation: 714 F.Supp.2d 241
• Parties: Ruben Serrano MOJICA, et al., Plaintiffs v. EL CONQUISTADOR RESORT AND GOLDEN DOOR SPA, Defendant.
• Court: U.S. District Court — District of Puerto Rico

714 F.Supp.2d 241

Ruben Serrano MOJICA, et al., Plaintiffs

v.EL CONQUISTADOR RESORT AND GOLDEN DOOR SPA, Defendant.

Civil No. 08-1797 (PG).

United States District Court,D. Puerto Rico.

May 13, 2010.

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Anibal Escanellas-Rivera, Escanellas & Juan, San Juan, PR, for Plaintiffs.

Edwin J. Seda-Fernandez, Mariel Y. Haack-Pizarro, Adsuar Muniz Goyco Seda & Perez Ochoa PSC, San Juan, PR, for Defendant.

OPINION AND ORDER

JUAN M. PÉREZ-GIMÉNEZ, District Judge.

Plaintiff Ruben Serrano Mojica (“Plaintiff” or “Serrano”), a forty-five year-old hotel bartender brings this case against his employer, defendant El Conquistador Resort and Golden Door Spa (“Defendant” or “the Hotel”) under the federal Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623. Serrano also pleads supplemental state law claims for age discrimination and retaliation under Puerto Rico Act No. 100, P.R. Laws Ann. tit. 29, § 146 (“Law 100”) and Puerto Rico Act No. 115, P.R. Laws Ann. tit. 29, § 194(a) ( “Law 115”). Before the Court are the Hotel's Motion for Summary Judgment (Docket No. 47) and Serrano's Opposition thereto (Docket No. 57). The Hotel subsequently filed a Reply (Docket No. 66) and Serrano a Surreply (Docket No. 78).

This case raises important questions about how to surpass summary judgment with direct and circumstantial evidence of age discrimination in the aftermath of the Supreme Court's decision Gross v. FBL Fin. Servs., Inc., ---U.S. ----, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), which in some aspects raised the standard for proving an ADEA claim. In essence, this case surrounds the working life of a career bartender with a complicated employment history consisting of many years of good service, followed by a deteriorating relationship with his supervisors that eventually gave way to open hostilities, and that allegedly culminated in the bartender's psychological breakdown. Because the facts are controverted, it is exceedingly difficult to pinpoint who is at fault, or who was the cause and what was the effect. The Court, nevertheless, endeavors to sort out the factual versions of this highly contentious story, in order to evaluate the merits of Plaintiff's legal claims for purposes of summary judgment. For the reasons that follow, the Court DENIES Defendant's Motion for Summary Judgment.

I. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law based on the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits. Fed.R.Civ.P. 56(c); Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir.2008). A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. Prescott, 538 F.3d at 40 (citations omitted). “ ‘A fact is material if it has the potential of determining the outcome of the litigation.’ ” Id. ( quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008)).

To be successful in its attempt, the moving party must demonstrate the absence of a genuine issue as to any outcome-determinative fact in the record through definite and competent evidence. See DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). Once the movant has averred that there is an absence of evidence to support the non-moving party's case, the burden shifts to the nonmovant to establish the existence of at least one fact in issue that is both genuine and material. See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (internal citations omitted). If the non-movant generates uncertainty as to the true state of any material fact, the movant's efforts should be deemed unavailing. See Suarez v. Pueblo Int'l, 229 F.3d 49, 53 (1st Cir.2000). While the mere existence of “some alleged factual dispute between the parties will not affect an otherwise properly supported motion for summary judgment,” the Court may grant the motion if the non-moving party rests merely upon “conclusory allegations, improbable inferences, and unsupported speculation.” Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003)). It is well-settled that “[t]he mere existence of a scintilla of evidence” is insufficient to defeat a properly supported motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

At the summary judgment juncture, the Court must examine the facts in the light most favorable to the non-movant, indulging that party with all possible inferences to be derived from the facts. See Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir.2002). The Court must review the record “taken as a whole,” and “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). This is so because credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Id.

Discrimination claims pivot on issues which are quintessential jury questions, like motive or intent; in rare cases, however, summary judgment may be appropriate in the discrimination context if the nonmoving party rest merely upon conclusory allegations, improbable inferences, and unsupported speculation. See Vesprini v. Shaw Industries, Inc., 221 F.Supp.2d 44, 53 (D.Mass.2002).

II. Factual Background

The following factual narrative is derived from facts that are deemed uncontested by the Court because they were included in the Motion for Summary Judgment, Opposition, Reply, and Surreply, and were agreed upon, or were properly supported by the evidence and not genuinely opposed. The facts are viewed in the light most favorable to Serrano, the nonmovant.

Serrano, born on January 15, 1965, was employed as a bartender at El Conquistador Hotel and Golden Door Spa on January 2, 1996, when he was thirty (30) years old. He occupied this position until his termination on September 18, 2009, at which time he was forty four (44) years old. Pursuant to the Hotel's job description, his essential duties included, among other things: (1) serving guests in a warm, friendly, courteous and professional manner; (2) approaching all encounters with guests and employees in a friendly, service-oriented manner; (3) complying at all times with the Hotel's standards and regulations to encourage safe and efficient Hotel operations; (4) following prescribed procedures in serving liquor with care to avoid problems with intoxicated guests. Serrano's duties remained the same throughout his employment. Upon his employment, Serrano was provided with a copy of the Hotel's rules and policies, of which he received updated versions numerous times throughout the years, and he was given two weeks of training.

Serrano worked at several bars in the Hotel, among these, Drake's Bar, Amigo's Bar, Bar 21, and Isabela's Restaurant. The Hotel had a practice of rotating bartenders to different bars based on business necessity; it also had a practice of awarding yearly pay increases and merit-based promotions to its bartenders. Serrano requested, in one instance, that he be transferred from Isabela's Restaurant to Amigo's Bar for personal reasons; the Hotel so agreed and Serrano continued to receive the same salary and benefits.

A. Allegations of Age Discrimination and Retaliation

For purposes of ADEA analysis, the Court treats Serrano's allegations of age discrimination with a narrowed focus on the period of time of his employment wherein he became a member of the statute's protected class, that is, when he turned forty (40): beginning on January 15, 2005, until his termination on September 18, 2009. The Hotel affirmatively states that Serrano was assigned to work areas in the same manner as all other bartenders and was rotated to different bars depending on business necessity. It adds that he was evaluated in the same manner as other similarly situated employees, and received yearly pay increases as well as merit-based promotions. In effect, the Hotel defends all of its employment decisions as nondiscriminatory business practices and denies in large part Serrano's factual allegations of age discrimination.

Serrano, however, alleges that during the period of 2007-2009 he was: (1) relegated almost exclusively to a provisional bar in the Hotel's lobby (the “Lobby Bar”) with limited equipment, reduced clientele, and tip-based income, while younger bartenders were assigned to more popular and profitable bars; (2) given reduced working hours (from 5 days and 40-hour weeks to 4 days and 28 to 30-hour weeks) while younger bartenders were given schedules in excess of 40 working hours per week; (3) denied a yearly pay increase in 2007 and 2009 as opposed to younger bartenders who did receive them; and (4) given a reduced pay increase of .23¢ in 2008 compared to younger bartenders who received .35-.37¢ salary increases the same year. ( See Pl.'s Statement of Uncontested Material Facts (“SUMF”) 1-3 & Ex. 1 ¶¶ 1-3.) The details of Serrano's factual allegations of age discrimination, summarized above, are set forth as follows.

According to Serrano, he was transferred from Bar 21 to the Lobby Bar in September 2007, while Bar 21 was being remodeled, and remained there until approximately February 2008, even after the renovations were completed in November 2007. The Lobby Bar was a temporary bar with less clientele and the lowest sales of any bar at the Hotel; younger bartenders were assigned to more profitable bars such as Drakes Bar or Bar 21. Serrano would earn $3.00 to $4.00 in tips at the Lobby Bar during...