Rivera-Rivera v. Medina & Medina, Inc.

• Decision Date: 11 January 2017
• Docket Number: Civil No. 13–1889 (SEC)
• Citation: 229 F.Supp.3d 117
• Court: U.S. District Court — District of Puerto Rico
• Parties: Martina RIVERA–RIVERA, Plaintiff, v. MEDINA & MEDINA, INC., Defendant.

229 F.Supp.3d 117

Martina RIVERA–RIVERA, Plaintiff,

v.MEDINA & MEDINA, INC., Defendant.

Civil No. 13–1889 (SEC)

United States District Court, D. Puerto Rico.

Filed January 11, 2017

Anibal Escanellas–Rivera, Escanellas & Juan, San Juan, PR, for Plaintiff.

Jaime Sifre–Rodriguez, Nerylu Figueroa–Estasie, Sanchez–Betances, Sifre & Munoz–Noya Law Offices, PSC, Julio I. Lugo–Munoz, San Juan, PR, for Defendant.

OPINION AND ORDER

SALVADOR E. CASELLAS, U.S. Senior District Judge

Pending before the Court is Defendant's motion for summary judgment. Because the elements necessary to support Plaintiff's claims are supported only with inadmissible hearsay and conclusory allegations included in her affidavit, the motion is granted .

I. Factual and Procedural Background

At forty-six years of age, Martina Rivera started working for Medina & Medina, Inc. (Defendant or Medina). Rivera's tenure began in 2006 and she received salary increases in 2008, 2009, and 2013. Every year, except for the year she resigned, Rivera received a discretionary "gratification bonus" given to employees that complied with certain criteria, in addition to the Christmas bonus required by law. Docket # 44, ¶¶ 9–13.¹

Seven years after she was hired, on August 20, 2013, Rivera filed a charge before the Equal Employment Opportunity Commission (EEOC) alleging that Medina's top officers had engaged in a campaign of discrimination against her based on her age, sex, and opposition to Medina's discriminatory practices. On September 2013, the EEOC issued a notice of right to sue and Rivera submitted her resignation on November 1. A month later, Rivera filed this federal employment action seeking redress for discrimination and retaliation under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. , and Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. (Title VII). She also brought supplemental claims under Puerto Rico law.

Rivera alleges that, from June 2011 until her resignation in November 2013, she was subjected to a hostile work environment by Medina's top officers. She posits that, "on a daily basis," her supervisors made derogatory comments regarding her age and gender; screamed and insulted her up to the point that she felt physically threatened; and falsely accused her of engaging in a fraud scheme involving illegal appropriation of corporate funds. Rivera also claims that younger male employees who performed similar duties earned higher salaries and bonuses than she did. According to Rivera, after she filed the EEOC charge, the harassment increased and became so unbearable that she was forced to resign.²

In summary judgment, Defendant argues that the evidence on record proves that Rivera's salaries, bonuses, and benefits were equal or higher than those of younger male employees. It also maintains that Rivera lacks sufficient evidence to support the remaining discrimination and retaliation claims for hostile work environment and constructive discharge. Rivera opposes summary judgment relying heavily on her post-discovery affidavit.

II. Standard of Review

Summary judgment is appropriate only if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine if a "reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case." Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). At this stage, it is axiomatic that courts "may not weigh the evidence," Casas Office Machs., Inc. v. Mita Copystar Am., Inc. , 42 F.3d 668 (1st Cir. 1994), and must construe the record in the "light most flattering" to the nonmovant. Soto–Padró v. Public Bldgs. Authority , 675 F.3d 1 (1st Cir. 2012). A court must similarly resolve all reasonable inferences in favor of the non-moving party. Tolan v. Cotton , ––– U.S. ––––, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam).

Once the movant properly configures a summary-judgment motion, the burden shifts onto the nonmovant—or "the party who bears the burden of proof at trial," Geshke v. Crocs, Inc. , 740 F.3d 74, 77 (1st Cir. 2014) —to "point to competent evidence and specific facts to stave off summary judgment." Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London , 637 F.3d 53, 56 (1st Cir. 2011). So the nonmovant cannot rest on conclusory allegations and improbable inferences. See Advanced Flexible Circuits, Inc. v. GE Sensing & Inspection Technologies GmbH , 781 F.3d 510, 516 (1st Cir. 2015). Neither "effusive rhetoric," Cadle Co. v. Hayes , 116 F.3d 957, 960 (1st Cir. 1997), nor "arguments woven from the gossamer strands of speculation and surmise," RTR Technologies, Inc. v. Helming , 707 F.3d 84, 93 (1st Cir. 2013), suffice to forestall the entry of summary judgment. Failure to shoulder this burden "allows the summary judgment engine to operate at full throttle." Lawton v. State Mut. Life Assur. Co. , 101 F.3d 218, 223 (1st Cir. 1996).

III. Applicable Law Analysis

The ADEA makes it illegal for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Similarly, Title VII prohibits discrimination based on an individual's race, color, religion, sex, or national origin." 42 U.S.C.A. § 2000e–2 (a)(1). "The analytical framework for ADEA discrimination and retaliation cases was patterned after the framework for Title VII cases, and [the First Circuit's] precedents are largely interchangeable." Fennell v. First Step Designs, Ltd. , 83 F.3d 526, 535, n. 9 (1st Cir. 1996) (citing Hazel v. U.S. Postmaster General , 7 F.3d 1, 3–4 (1st Cir. 1993) ).

Here, Rivera alleges that Medina discriminated against her on account of her age and sex. Specifically, she claims that Medina paid her less than younger male employees, and subjected her to a hostile work environment. Rivera also claims that she was subjected to retaliation in the form of an increased hostility that culminated in her involuntary resignation. The Court addresses each claim sequentially.

a. Disparate treatment in wages

The Court need not delve too much into Rivera's claim that she earned lower salaries and bonuses than her younger male counterparts because the evidence on record refutes this claim.

From 2008 until her resignation, Rivera was the second-highest paid employee at Medina. Her salary was superseded only by Medina's General Manager, Lizette Cortés, who is undisputedly higher in the corporate hierarchy. This is evinced by a sworn declaration from Cortés and the W–2 forms (tax withholding statements), showing the salaries of all of Medina's employees from 2007 to 2013. Rivera has the audacity to challenge this direct evidence only with her deposition testimony where she said that three male employees, at different and unspecified points in time, told her that they earned higher wages than she did. The Court, of course, disregards this testimony as classic hearsay, inadmissible at the summary judgment stage. See Garside v. Osco Drug, Inc. , 895 F.2d 46, 50 (1st Cir. 1990) ("Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment"). With nothing else to support this claim, it must be dismissed. The Court thus proceeds to tackle Rivera's hostile work environment claim.

b. Hostile Work Environment

Both the ADEA and Title VII provide a cause of action for employment discrimination based on a hostile work environment theory. See O'Rourke v. City of Providence , 235 F.3d 713, 728 (1st Cir. 2001) (Title VII); Collazo v. Nicholson , 535 F.3d 41, 44 (1st Cir. 2008) (ADEA). To sustain this type of claim, a plaintiff must prove that "that [her] workplace was ‘permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of ... [her] employment and create an abusive working environment.’ " Colón–Fontánez v. Municipality of San Juan , 660 F.3d 17, 43 (1st Cir. 2011) (quoting Quiles–Quiles v. Henderson , 439 F.3d 1, 7 (1st Cir. 2006) ). "[R]udeness or ostracism, standing alone, usually is not enough to support a hostile work environment claim." Carmona–Rivera v. Puerto Rico , 464 F.3d 14, 19 (1st Cir. 2006) (quoting Noviello v. City of Boston , 398 F.3d 76, 92 (1st Cir. 2005) ). This standard is sufficiently demanding to ensure that federal anti-discrimination laws do not become a general civility code for the workplace. See Faragher v. City of Boca Raton , 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

To be actionable, the harassment must be "objectively and subjectively offensive," Noviello , 398 F.3d at 92 (quoting Faragher , 524 U.S. at 787, 118 S.Ct. 2275 ), and directed at an employee "because of a characteristic protected by a federal anti-discrimination statute." Quiles–Quiles , 439 F.3d at 7–8. In making this assessment, courts consider the totality of the circumstances including "the severity of the conduct; its frequency; and whether it unreasonably interfered with the victim's work performance." Colón–Fontánez , 660 F.3d at 44.

Rivera asserts that Medina engaged in actionable harassment by making derogatory and discriminatory comments regarding her age; screaming at her using foul language; threatening her with termination; and falsely accusing her of being involved in a fraud scheme involving misappropriation of corporate funds. In support of these allegations, Rivera proffers only a post summary judgment statement under penalty of perjury,³ whose relevant paragraphs read as follows:

3. Mr. Pepín Medina, Mr. Eduardo Medina, and Lissette Cortés, since approximately June 2011, up until the date in which I was forced to resign, almost on a daily basis, told me that I was old and useless and worthless; that I was old and slow; that I was old and should

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