Olivera v. Nestle Puerto Rico, Inc.

Decision Date01 October 1990
Docket NumberNo. 90-1363,90-1363
Citation922 F.2d 43
Parties54 Fair Empl.Prac.Cas. 1013, 55 Empl. Prac. Dec. P 40,482 Hugo V. OLIVERA, Plaintiff, Appellant, v. NESTLE PUERTO RICO, INC., et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

James A. Toro, San Juan, P.R., with whom Nachman & Fernandez Sein, Santurce, P.R., were on brief, for appellant.

Jay A. Garcia-Gregory, with whom Jose A. Silva-Cofresi and Fiddler, Gonzalez & Rodriguez, San Juan, P.R., were on brief, for appellees.

Paul Bogas with whom Donald R. Livingston, Acting Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, and Vella M. Fink, Washington, D.C., Asst. Gen. Counsel, were on brief, for amicus curiae EEOC.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and WOODLOCK, * District Judge.

BOWNES, Senior Circuit Judge.

This is an appeal in an age discrimination in employment case by the plaintiff-employee, Hugo V. Olivera from a summary judgment for defendant-employer, Nestle Puerto Rico, Inc. The cause of action arises under the Age Discrimination In Employment Act (ADEA), 29 U.S.C. Sec. 626(c).

Plaintiff started working for defendant in March of 1982 as marketing manager. In November of 1983, he was promoted to the position of general sales manager. He continued as general sales manager until he was discharged on November 16, 1987. Plaintiff brought suit on May 25, 1988, under the ADEA and Puerto Rico law alleging that he was discharged because of his age--55. After pretrial discovery, defendant moved for summary judgment. 1 The district court granted defendant's motion for summary judgment under the ADEA and declined to take jurisdiction over plaintiff's pendent claim under Puerto Rico law. Olivera v. Nestle-Puerto Rico, Inc., 732 F.Supp. 285 (D.P.R.1990).


Before discussing the facts, which are set forth fully and accurately in the district court opinion, we summarize the controlling summary judgment principles. The key sentence of the Rule states:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers or 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 a judgment as a matter of law.

Fed.R.Civ.P. 56(c). The Supreme Court has emphasized "that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis original). The Court pointed out that "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. at 2511. The standard for determining whether summary judgment should be granted "mirrors the standard for a directed verdict under Fed.R.Civ.P. 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id. at 250, 106 S.Ct. at 2511.

Appellate review of summary judgment is plenary. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990); Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). In making our review, we look at the record in the light most favorable to the party opposing summary judgment and accept all reasonable inferences favorable to such party arising from the record. Garside v. Osco Drug, Inc., 895 F.2d at 48; Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 934 (1st Cir.1987).


After examining the materials filed, the district court found that plaintiff met the four-pronged test necessary to establish a prima facie case of age discrimination: he was within the age group protected by the statute, 40-70 years of age; he was discharged; he was qualified for the position he held and doing his job well enough to rule out the possibility that his discharge was for inadequate job performance; and he was replaced by someone with qualifications similar to his own, thus showing a continued need by the employer for the same services and skills. Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 153 (1st Cir.1990); Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1110-11 (1st Cir.1989). We agree with the district court that plaintiff made out a prima facie case.

Mindful of the shifting burdens in an ADEA case, the district court then examined the nondiscriminatory reasons articulated by the employer for plaintiff's termination. Defendant maintained that its president, Eugene Prince, had lost confidence in plaintiff's ability to continue as a senior member of the management. This erosion of confidence in the plaintiff was, defendant claimed, caused by four incidents which evinced lack of discretion by plaintiff: the advance disclosure of defendant's plans for a reduction in force; critical comments by plaintiff about defendant's corporate management policies made outside of the chain of command without first attempting to resolve the matter internally; statements made by plaintiff to an auditor that defendant's accounting practices were irregular and that kickbacks were being made by a supplier to defendant's president; and remarks made by plaintiff to a corned beef supplier of defendant about the retirement of defendant's president.

The district court next scrutinized plaintiff's rebuttal of the defendant's articulated reasons for the discharge. The district court first reviewed plaintiff's employment history with defendant and his job appraisal reports, which can be summarized as follows. Plaintiff worked for a subsidiary of defendant for eleven years. He became marketing manager of defendant in March of 1982 and was promoted to general sales manager in November of 1983, receiving a raise in salary and fringe benefits. Plaintiff's first job appraisal report, dated March 5, 1983, rated his performance as above average and as exceeding his employer's expectations. The next appraisal, dated January 1, 1985, rated plaintiff's performance as competent and within the employer's expectations. This appraisal had a special section covering attitude and personality relative to confidentiality. It stated: "Maturation and ability to retain confidential information: good." This appraisal report evaluated plaintiff's loyalty to the company and his sense of order and system as excellent. As noted by the district court, this job performance appraisal was made after the incident of June 11, 1984, accusing plaintiff of disclosing confidential information relative to a planned reduction in force by defendant. The next appraisal is dated October 20, 1986. Plaintiff's overall job performance was found to be above average, exceeding his employer's expectations. The report found, as did the prior one, that plaintiff's maturation and ability to retain confidential information was "good." Plaintiff's objectivity, company loyalty, judgment, common sense, maturity and reliability were rated as "excellent." This appraisal was made, as the district court observed, after the alleged incident in which plaintiff was reported to have made critical remarks about company management. Plaintiff's last employment appraisal was rendered on October 26, 1987, twenty days prior to his discharge. He was found to have rendered competent performance, meeting his employer's expectations. Plaintiff received a "good" rating as to attitude and personality relative to confidentiality, tactfulness, politeness and sensitivity. He received an "excellent" rating on: objectivity, fairness in the use of authority, company loyalty, judgment, common sense, maturity, ability to handle stress situations, sense of order and system, and reliability. The appraisal summary concluded that plaintiff continues to be energetic, has a good business sense and the ability to produce results with limited resources at his disposal. This final appraisal, as the district court found, was made "contemporaneously" with plaintiff's alleged indiscretion in discussing the president's retirement with a corned beef supplier. Finally, we note, as did the district court, that all during his employment plaintiff received salary increases based on merit and performance.

The district court next examined plaintiff's explanations of the four incidents that allegedly culminated in defendant's loss of confidence in plaintiff as a high level management employee. The court correctly stated that "Olivera has to show by a preponderance of the evidence that the reasons articulated by NPR [employer] as grounds for dismissal were most probably not the actual reasons. Menzel v. Western Auto Supply Co., 848 F.2d 327, 330 (1st Cir.1988)." Olivera v. Nestle-Puerto Rico, Inc., 732 F.Supp. at 288. After reviewing plaintiff's explanations of the four incidents, the district court found: "Mr. Olivera has addressed the reasons articulated by NPR [employer] for his dismissal and has shown by a preponderance of the evidence that they were most probably not the actual reasons." Id. at 290. Our independent review of the record compels the same conclusion.

The district court then went on to assess the evidence adduced by plaintiff to show that he was discharged because of his age. It concluded that "Olivera has not produced direct or circumstantial proof of age discrimination sufficient to defeat defendant's motion for summary judgment." Id. at 291. For the reasons that follow, we find this to have been error.

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