Serrano-Cruz v. DFI Puerto Rico, Inc.

• Decision Date: 06 November 1996
• Docket Number: H,SERRANO-CRU,No. 96-1418,96-1418
• Citation: 109 F.3d 23
• Parties: 70 Empl. Prac. Dec. P 44,720 Dignaector Irizarry, and The Conjugal Society Comprised Between Them, Plaintiffs--Appellants, v. DFI PUERTO RICO, INC., et al., Defendants--Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 23

109 F.3d 23

70 Empl. Prac. Dec. P 44,720

Digna SERRANO-CRUZ, Hector Irizarry, and The Conjugal

Society Comprised Between Them, Plaintiffs--Appellants, v. DFI PUERTO RICO, INC., et al., Defendants--Appellees.

No. 96-1418.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1996.

Decided March 19, 1997.

Rehearing Denied April 16, 1997.

Javier A. Morales-Ramos, Hato Rey, PR, for appellants.

Vicente J. Antonetti, Hato Rey, PR, with whom Ilsa Y. Figueroa-Ars and Goldman Antonetti & Crdova were on brief, for appellees.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and DiCLERICO, ^* District Judge.

TORRUELLA, Chief Judge.

Plaintiff-appellant Digna Serrano-Cruz ("Serrano") formally resigned from her job with defendant-appellee DFI Puerto Rico, Inc. ("DFI") on August 22, 1994. Four months later, she and her husband filed suit under the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C.A. §§ 621-634 (1985 & Supp.1996), claiming damages resulting from allegedly discriminatory, adverse employment actions resulting in her constructive dismissal. She and her husband now appeal the district court's grant of summary judgment for her employer, DFI. We affirm, finding that Serrano failed to establish a prima facie case under the ADEA.

BACKGROUND

In the summary judgment context we relate all material facts in genuine dispute in the light most favorable to the party resisting summary judgment, here Serrano. Sanchez v. Alvarado, 101 F.3d 223, 225 n. 1 (1st Cir.1996). Serrano worked for DFI's predecessor firm, Aeroboutiques, from 1984 until it was purchased by DFI in September 1992. Aeroboutiques, and later DFI, owned and operated several stores selling gifts and other consumer merchandise at Luis Munoz Marn International Airport in San Juan. At the time of the change in ownership, Serrano served as the "assistant general manager" of Aeroboutiques, and, in that position, assisted the general manager, supervised the operation of the airport stores, oversaw their physical upkeep (e.g., lighting, cleanliness) and their security systems, and performed some accounting functions. ¹ When DFI took over the stores, Serrano was offered, and accepted, the position of "comptroller." ² As comptroller Serrano continued to perform her previous managerial duties, with regular duties including: maintaining the security system for the airport stores, supervising store employees and arranging employee vacation time, having responsibility for the keys to the stores, and attending security and employee management meetings. In addition, she assumed accounting responsibilities such as preparing quarterly reports and keeping the payroll accounts.

The events giving rise to her suit began in February 1994, when the general manager (Manny Lozano) and the president (Luis Bared) of DFI, Serrano's superiors, began reducing her responsibilities. She lost managerial control over the security system for the stores, as well as control over the keys. Serrano's role in personnel selection was also decreased, and she was excluded from meetings she had previously attended.

Through a letter to Serrano dated June 21, 1994, Luis Bared indicated that Serrano was on a 90-day probation period effective that day. The letter cited DFI's dissatisfaction with Serrano's "negligent" handling of certain rent payments for the airport stores. Bared indicated that during the 90-day period, he and Manny Lozano would be evaluating her performance as comptroller. Serrano denies that she made mistakes in the course of discharging her accounting duties as comptroller.

On July 18, 1994, before the 90-day probation period had ended, Lozano informed Serrano that DFI had decided to transfer her to a newly created position entitled "retail manager." Serrano refused the new position, stating that being fired would be preferable to the new position. In a letter to Serrano dated July 21, 1994, Lozano stated that Serrano would receive the same salary and benefits in the new position as she had received as comptroller, and that she would be given two days of paid leave to reconsider her decision to turn down the position. Lozano's Serrano was 53 at the time her suit was initiated in December 1994. There is no direct evidence that DFI's actions were taken because of Serrano's age. Appellant alleges a few facts that might suggest discriminatory animus on the basis of her age. These are: that she was replaced by a woman aged 25 with roughly the same qualifications and with less experience; that she was treated differently from younger employees by DFI management by not receiving free lipstick samples and not being thrown a birthday party.

                July 21 letter further states that, as retail manager, Serrano "would supervise and be responsible for the retail operation of our San Juan International Airport stores."   After taking a month of leave, Serrano formally resigned from DFI on August 22, 1994, and now claims she was forced to resign by DFI's unacceptable job transfer
                

The district court granted DFI's summary judgment motion, ruling that Serrano failed to establish constructive dismissal as part of her prima facie case of age discrimination because she did not show that there was a problem with the new position that would compel a reasonable person to resign. Before us on appeal is Serrano's ADEA claim against DFI, her state law claims having been dismissed without prejudice.

STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. Mulero-Rodriguez v. Ponte, 98 F.3d 670, 672 (1st Cir.1996). Summary judgment is properly granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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).

Under Rule 56, once the moving party has pointed to the absence of adequate evidence supporting its opponent's case, the onus is on the party resisting the motion for summary judgment to respond by presenting facts that show that there is a "genuine issue for trial." LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841-42 (1st Cir.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986)). To oppose the motion successfully, the nonmoving party "may not rest upon mere allegations or denials of his pleading." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. "The nonmoving party must establish a trial-worthy issue by presenting 'enough competent evidence to enable a finding favorable to the nonmoving party.' " LeBlanc, 6 F.3d at 842 (quoting Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11).

DISCUSSION

The ADEA makes it unlawful 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.A. § 623(a)(1) (1985). In a wrongful discharge case under the ADEA, the plaintiff bears the ultimate burden of proving that "he would not have been fired but for his age." Freeman v. Package Mach. Co., 865 F.2d 1331, 1335 (1st Cir.1988). Where, as here, there is no direct evidence showing that the employer's actions were motivated by age, the familiar McDonnell Douglas framework governs. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973); Greenberg v. Union Camp Corp., 48 F.3d 22, 26-27 (1st Cir.1995).

Under the McDonnell Douglas framework, the employee must initially come forward with sufficient evidence to establish a prima facie case of age discrimination. Here, Serrano needed to establish that: (i) she is over forty years of age; (ii) her job performance was sufficient to meet DFI's legitimate job expectations; (iii) she was constructively discharged; and (iv) DFI sought a replacement with roughly similar skills or qualifications. Greenberg, 48 F.3d at 26. Once the plaintiff has met this modest burden, a presumption of discrimination arises that shifts the onus to the employer to come forward with a legitimate, nondiscriminatory reason for its actions. Id. If the employer does so, the presumption of age discrimination vanishes and the burden shifts back to the plaintiff to show that the employer's justification is pretextual. The burden of persuasion, as opposed to the burden of production, rests with the plaintiff throughout.

The district court found that although there may exist a factual dispute between the parties as to whether Serrano met DFI's legitimate job expectations (the second prong of McDonnell Douglas ), or indeed as to whether DFI's reasons for reducing Serrano's duties or transferring her job were pretexts for improper age discrimination, Serrano failed to establish a prima facie case because, on undisputed facts, she did not establish constructive dismissal (prong three). On appeal Serrano contends that there is a triable issue as to constructive dismissal, making summary judgment improper, and also contends that a finding of "adverse employment actions" may provide grounds for relief even if a finding of constructive dismissal is not supported by the record. We assess each argument in turn.

I. Constructive Dismissal

We must consider de novo whether, as a matter of law, Serrano failed to make a prima facie showing of constructive discharge. We have long applied an "objective standard" in determining whether an employer's actions have forced an employee to resign. See, e.g., Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir.1986). For the transfer proposed by DFI to be deemed a constructive discharge, " 'the trier of fact must be satisfied that the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.' " Id. (quoting Alicea Rosado v....