Rivera-Meléndez v. Pfizer Pharms., LLC

• Decision Date: 20 September 2013
• Docket Number: No. 12–1023.,12–1023.
• Parties: Luis A. RIVERA–MELÉNDEZ; Wanda Otero–Rivera; Conjugal Partnership Rivera–Otero, Plaintiffs, Appellants, v. PFIZER PHARMACEUTICALS, LLC, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

730 F.3d 49

Luis A. RIVERA–MELÉNDEZ; Wanda Otero–Rivera; Conjugal Partnership Rivera–Otero, Plaintiffs, Appellants,

v.PFIZER PHARMACEUTICALS, LLC, Defendant, Appellee.

No. 12–1023.

United States Court of Appeals,First Circuit.

Sept. 20, 2013.

Jos L. Barrios–Ramos, with whom Pirillo Hill González & Sánchez, PSC was on brief, for appellant.

Pedro J. Torres–Díaz, with whom Mariela M. Rexach–Rexach, Jos J. Sánchez–Vález, and Schuster Aguil LLP were on brief, for appellee.

Holly A. Thomas, Attorney, United States Department of Justice, with whom M. Patricia Smith, Solicitor of Labor, United States Department of Labor, Thomas E. Perez, Assistant Attorney General, Dennis J. Dimsey, Attorney, United States Department of Justice, and Erin Aslan, Attorney, United States Department of Justice, were on brief, for amicus curiae United States.

Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

This case requires us to determine whether the “escalator principle” and “reasonable certainty” test governing reinstatement claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) apply to non-automatic, “discretionary” promotions. The district court found that they do not, and used this conclusion to reject plaintiff Luis Rivera–Meléndez's USERRA reinstatement claim pursuant to 38 U.S.C. §§ 4312 and 4313 and award summary judgment to defendant, Pfizer Pharmaceuticals, LLC (“Pfizer”). Because we conclude that the escalator principle and reasonablecertainty test apply regardless of whether the promotion at issue is automatic or non-automatic, we vacate the district court's judgment and remand.

I.

A. Background

We summarize the relevant facts in the light most favorable to Rivera, the party against whom summary judgment was granted. Barclays Bank PLC v. Poynter, 710 F.3d 16, 18 (1st Cir.2013).

Luis Rivera–Meléndez (“Rivera”) earned his associate's degree in chemistry from the Technological Institute of Manat in 1993 and a bachelor's degree in liberal arts from the Pontifical Catholic University at Arecibo in 2010. He began working at Pfizer's pharmaceutical manufacturing facility in Barceloneta, Puerto Rico in 1994. Initially employed as a Chemical Operator Trainee, Rivera received several promotions, including a 2004 promotion to Active Pharmaceutical Ingredient (“API”) Group Leader. The API Group Leader position—which has since been eliminated—was an hourly, non-exempt position under the supervision of the exempt API Supervisor and API Manager.¹

Rivera also serves his country as a member of the United States Naval Reserve (“Navy”). During his career at Pfizer, he has been called twice into active duty service. On October 11, 2008, Rivera received notice that he was being called to active duty in Iraq. He promptly notified Pfizer's Senior Human Resources Specialist that he needed to take military leave. After attending pre-mobilization training, Rivera commenced his active duty service on December 5, 2008. His tour of duty concluded on October 21, 2009.

In February 2009, Pfizer restructured its API Department. As part of this restructuring, Pfizer eliminated the API Group Leader position held by Rivera and replaced it with two separate classifications: API Team Leader and API Service Coordinator. Pfizer management held a meeting with the API Group Leaders at the Barceloneta facility and informed them that they could apply for the exempt API Team Leader position, for which seven job openings would be posted. The API Group Leaders were informed that if they were not among those selected for the API Team Leader position, they would have three alternatives: (1) to apply to the new, non-exempt API Service Coordinator position; (2) to be demoted to the Senior API Operator position; or (3) to participate in a voluntary separation option.

The API Team Leader positions were posted in March 2009, seven months before Rivera returned to Pfizer. The position originally required, inter alia, a Bachelor's Degree in Science or Business Administration, at least five years of experience in API manufacturing, and at least five years in a supervisory or interdisciplinary team environment handling multiple tasks. Pfizer Senior Human Resources Specialist Lissette Guerra–Sierra testified in a deposition that an estimated sixteen to seventeen people applied for the seven API Team Leader vacancies. After a first round of interviews, Pfizer modified the criteria so that API Group Leaders without bachelor's degrees could qualify for the position, subject to their completing the degree requirement within a specified period of time.

The seven API Team Leader positions were filled by six of the former API Group Leaders and one Senior API Operator.² None of the six API Group Leaders who were promoted satisfied the original bachelor's degree requirement. Of the API Group Leaders not selected for the API Team Leader position, one, Luis Bravo, was appointed to special projects under the supervision of the API Manager pending the approval of the new API Service Coordinator position, while two others were demoted to the API Senior Operator position.

Upon being discharged from active military service, Rivera contacted Pfizer to request reinstatement. He returned to work on October 22, 2009. Rivera met with the API Manager, who told him that he was reinstated as an API Group Leader. However, because the API Group Leader position had been effectively eliminated by the time he returned to Pfizer, Rivera, like Luis Bravo, was assigned to “special tasks” under the supervision of the API Manager. Although Rivera's salary and benefits were not altered, he had reduced job responsibilities while assigned to the “special tasks” role.

On May 17, 2010, Rivera was appointed to the API Service Coordinator position after the creation of the position had been officially approved by Pfizer. Three other former API Group Leaders were appointed to the API Service Coordinator position as well. Rivera continued to receive the same compensation and benefits he had received as an API Group Leader, though he had fewer job responsibilities. Specifically, Rivera stated in his deposition that he no longer had the limited supervisory duties with which he was charged as an API Group Leader when supervisors were unavailable. Rivera also testified that he would have liked the opportunity to apply for the API Team Leader position, and that he felt he was qualified for the position.

B. Procedural History

Rivera and the conjugal partnership comprised of Rivera and his wife filed suit against Pfizer on January 11, 2010, asserting USERRA and pendent state law claims.³ Rivera's USERRA claims alleged violations of the statute's anti-discrimination and reinstatement provisions. Specifically, Rivera argued that Pfizer had violated his rights by, inter alia, delaying payment of his differential pay and pay raise, refusing to pay him a 2009 Christmas bonus, failing to provide him with an opportunity to apply for the API Team Leader position, and subjecting him to a hostile work environment based on his military service. Rivera also alleged that he was entitled to be rehired to a supervisory (i.e., the API Team Leader) position upon his return from active duty.

Pfizer moved for summary judgment on August 23, 2011.⁴ The district court granted Pfizer's motion as to nearly all of Rivera's USERRA claims.⁵ Among the claims the district court rejected were those Rivera brought pursuant to 38 U.S.C. §§ 4312 and 4313. Specifically, the district court held that Rivera could not establish that he was entitled to be employed as an API Team Leader upon his return from active duty because the API Team Leader position was not Rivera's “escalator position”—that is, the “position of employment in which [Rivera] would have been employed if [his] continuous employment ... with the employer had not been interrupted by [his] service.” 38 U.S.C. § 4313(a)(2)(A). Because the API Team Leader position was not an “automatic promotion” and instead involved employer discretion, the court found that Rivera could assert no entitlement to it under USERRA.

Rivera promptly filed a motion for reconsideration, arguing, inter alia, that the court had erred when it determined that the escalator position principle applied only to non-discretionary promotions. Unpersuaded, the district court simply reiterated its insistence on the automatic promotion principle.

II.

On appeal, Rivera asks us to vacate the district court's grant of summary judgment only as to his USERRA reinstatement claim. He mounts a two-pronged attack on the district court's analysis. First, he maintains that the district court erred in holding that USERRA's escalator principle and its associated reasonable certainty test apply only to automatic promotions. Second, he argues that, based on the evidence presented below, there are genuine issues of material fact relating to the question of whether it was reasonably certain that if not for the period of service, he would have attained the API Team Leader position.

The United States filed an amicus brief in this case, also arguing that the district court's grant of summary judgment must be vacated. Like Rivera, the United States maintains that the escalator principle and reasonable certainty test apply to both automatic and non-automatic promotions, and that the proper inquiry was therefore “not whether the promotion was automatic or discretionary, but whether it was reasonably certain that [Rivera] would have applied for and received the promotion had he not been in active duty status.” The United States takes no position on whether Rivera could ultimately prove that it was reasonably certain that he would have been promoted to the API Team Leader position.⁶

A. USERRA

Enacted in 1994, USERRA represents “the latest in a series of laws ⁷ protecting veterans' employment and reemployment rights.” 20 C.F.R. § 1002.2. In enacting the statute, Congress...