Polanco v. UPS Freight Servs., Inc.
| Decision Date | 10 November 2016 |
| Docket Number | CIVIL NO. 13–1921 (PAD) |
| Parties | Joanna POLANCO, et al., Plaintiffs, v. UPS FREIGHT SERVICES, INC., et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Julie A. Soderlund, San Juan, PR, for Plaintiffs.
Jose A. Silva-Cofresi, Pedro J. Manzano–Yates, Daniel Brown–Saenz, Silva–Cofresi, Manzano & Padro, LLC, Javier A. Morales–Ramos, Javier A. Morales Ramos Law Office, San Juan, PR, for Defendants.
Joanna Polanco and Yolanda Escudero initiated this employment discrimination, hostile work environment, and retaliation against UPS Freight Services, Inc. under various Federal and Puerto Rico statutes (Docket No. 31).1 Polanco's husband, José L. Nevárez, joined in the action, claiming to have suffered damages resulting from of his spouse's suffering. Id. at ¶¶ 7, 94 and 95. Before the court are UPS's "Motion(s) for Summary Judgment" (Docket Nos. 106 and 107), which plaintiffs opposed (Docket Nos. 108 and 113). UPS replied (Docket Nos. 118 and 120). Plaintiffs surreplied (Docket No. 124).
For the reasons explained below, UPS's motion on Polanco and Nevárez (Docket No. 106) is DENIED except for (1) the national-origin discrimination claims; and (2) the Law No. 115 retaliation claim. However, the motion regarding Escudero (Docket No. 107) is GRANTED IN PART, to dismiss the federal claims with prejudice and the state claims without prejudice. To facilitate review, the materials have been organized under the following topics:
III. FINDING OF FACTS...477
a. UPS's Business Relationship with UW...477
b. The Puerto Rico Terminal...479
c. Escudero's Employment with UW...480
d. Incidents between Rosario and Escudero Prior to August 27, 2012...481
e. Escudero's Complaint against Rosario and the Ensuing Investigations...481
f. Escudero's EEOC Charge and Rosario's Subsequent Behavior...483
g. Polanco's Employment with UPS...484
h. Preparation of Shipping Documents...485
i. Calculation of Volume and Cube Utilization...485
j. Investigation as to Cube Utilization...486
k. Polanco's Termination...488
IV. DISCUSSION...489
During the relevant period, Polanco and Escudero worked at UPS's distribution center in Guaynabo, Puerto Rico. Polanco was an employee of UPS, whereas Escudero was an employee of Universal Warehouse ("UW"), a UPS contractor. Both claim to have been discriminated against because of their sex and national origin and subjected to a hostile work environment on account of their sex. In addition, they say UPS retaliated against them for having complained of discrimination. Nevárez requests compensation for damages linked to Polanco's claims (Docket No. 31). UPS contends it was never Escudero's employer, and challenges the sufficiency of evidence to sustain the asserted claims (Docket No. 106). In consequence, it seeks entry of summary judgment dismissing all claims with prejudice under Rule 56 of the Federal Rules of Civil Procedure.2
Summary judgment is appropriate when "the pleadings, depositions, answers to 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 judgment as a matter of law." Fed. R. Civ. P. 56(c). The purpose of summary judgment is to pierce the pleadings and assess the proof in order to see whether there is need for trial. Mesnick v. General Electric Co. , 950 F.2d 816, 822 (1st Cir. 1991).
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, 91 L.Ed.2d 265 (1986). A factual dispute is "genuine" if it could be resolved in favor of either party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is "material" if it potentially affects the outcome of the case in light of applicable law. Calero–Cerezo v. U.S. Dep't of Justice , 355 F.3d 6, 19 (1st Cir. 2004).
As to issues on which the nonmovant has the burden of proof, the movant need to no more than aver absence of evidence to support the nonmoving party's case. Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548 ; Mottolo v. Fireman's Fund Ins. Co. , 43 F.3d 723, 725 (1st Cir. 1995). All reasonable factual inferences must be drawn in favor of the party against whom summary judgment is sought. Shafmaster v. U.S. , 707 F.3d 130, 135 (1st Cir. 2013). Record review shows absence of genuine factual dispute as to the facts identified in the section that follows.
a. UPS's Business and Relationship with Universal Warehouse
UPS is a logistics company. It moves cargo for customers using a method called intermodal shipping, combining ocean and truck shipping (Docket No. 106–2, "Defendant's Statement of Uncontested Material Facts in Support of the Motion for Summary Judgment as to Claims Made by Plaintiffs Joanna Polanco and José L. Nevárez" ("SUMF–1") at ¶ 1). UW provides warehousing and office services and space for UPS in Puerto Rico. SUMF–1 at ¶ 5. It has provided those services to UPS since at least 2004 or 2005. SUMF–1 at ¶ 5. In addition, it is responsible for coordinating the delivery of packages belonging to UPS customers through independent truck drivers, and of loading packages belonging to UPS customers into containers destined to the mainland U.S. SUMF–1 at ¶ 6.
When delivering shipments to UPS's customers, UW mixes shipments with those of other UW customers in a way that it is most efficient for UW (Docket No. 107–2, "Defendant's Statement of Uncontested Material Facts in Support of the Motion for Summary Judgment as to Claims Made by Plaintiff Yolanda Escudero" ("SUMF–2") at ¶ 3). It has similar relationships with other companies, such as Saia Motor Freight, A Duie Pyle, and Selective Transportation. SUMF–1 at ¶ 7.
The agreement between UW and UPS stipulates that certain functions of UPS's operation will be executed by employees of UW. SUMF–2 at ¶ 5. However, UW has its own work force, and may choose to staff the operation any way it finds appropriate. SUMF–2 at ¶ 5. UW employees do not report directly to UPS. SUMF–2 at ¶ 7.4 They report to UW, specifically to Josué Bernardi, General Manager of UW, and to Carmen Carmona, Supervisor of UW. SUMF–2 at ¶ 7. Bernardi's boss is Marcos Rodríguez, President of UW. SUMF–2 at ¶ 7.
Rodríguez is not an employee of UPS, and does not have any relationship with UPS other than the one established in the agreement between UPS and UW. SUMF–2 at ¶ 8. He is not a member of the Board of Directors of UPS or any of its related entities, and does not have any decisional power within UPS. SUMF–2 at ¶ 8. Likewise, UPS and its affiliated companies do not have any proprietary interest in UW. SUMF–2 at ¶ 9. UPS and UW have distinct and separate boards of directors, shareholders and proprietors. SUMF–2 at ¶ 7. Rodríguez is the sole proprietor of UW. SUMF–2 at ¶ 9. UW could refuse to offer services for UPS by terminating the UPS contract, which it can unilaterally do with a sixty-day notice. SUMF–2 at ¶ 10.
UPS has its own Human Resources Department ("HR") to handle UPS personnel. It is not involved in personnel management for UW. SUMF–2 at ¶ 17. Nor does it have the authority to discipline or terminate UW employees. SUMF–2 at ¶ 12. Bernardi is the only person authorized to make decisions affecting UW employees assigned to the UPS account. SUMF–2 at ¶ 11.5 When a UW employee does something wrong, UPS employees can speak directly to the UW employee only if it involves a small problem such as an incorrect address in a customer bill. If the matter encompasses a larger problem, UPS will communicate with UW, and UW management will speak directly to its employee. SUMF–2 at ¶¶ 13–14.6
UPS has minimal control over the strategies and methods used by UW to comply with its responsibilities under the UPS agreement. SUMF–2 at ¶ 15.7 Nevertheless, UW employees are trained by UPS and guided by UPS operational methods in using UPS systems, for UW is expected to comply with UPS's operating policies and procedures. SUMF–2 at ¶ 15.8 As to UW employees, UPS's focus is on having the customer's cargo delivered in a timely manner. SUMF–2 at ¶ 16.9
b. The Puerto Rico Terminal
UPS's Puerto Rico terminal operates with two primary groups: the operations group and the sales group. SUMF–1 at ¶ 8. Sales and operations people in Puerto Rico are at the same hierarchical level. SUMF–1 at ¶ 8. The terminal manages concurrently two types of shipments: shipments of packages which come from the mainland U.S. to Puerto Rico, which are known in the company as "southbound shipments;" and shipments exiting Puerto Rico to the mainland U.S., known as "northbound shipments." SUMF–1 at ¶ 9.
Richard Shearer, Manager of Puerto Rico Operations, and Michael Mackey, Director of Business Development for Canada, Mexico and Puerto Rico, manage UPS's Puerto Rico terminal. SUMF–1 at ¶ 10. They are both stationed outside of Puerto Rico (Docket No. 108–1, "Plaintiffs' Opposing Statement of Uncontested Material Facts" ("OSUMF–1") at ¶ 16 and 17; Docket No. 118–2 at ¶¶ 16 and 17). Shearer reports directly to Mackey. SUMF–1 at ¶ 14. In 2012, the sales group consisted of John Rosario, Anabel Marxuach, and Orlando Santos. SUMF–1 at ¶ 11. Rosario was a lead sales person, but all sales employees reported to Mackey. SUMF–1 at ¶¶ 11 and 20. Mackey, in turn, reported to Paul Fleming. SUMF–1 at ¶ 11.10
c. Escudero's Employment with UW
Escudero is a UW employee assigned to work on the UPS account in UPS's distribution center. SUMF–2 at ¶...
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