Velez v. Janssen Ortho, LLC

• Decision Date: 03 November 2006
• Docket Number: No. 05-2721.,05-2721.
• Citation: 467 F.3d 802
• Parties: Gladen VELEZ, Plaintiff, Appellant, v. JANSSEN ORTHO, LLC, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

467 F.3d 802

Gladen VELEZ, Plaintiff, Appellant, v. JANSSEN ORTHO, LLC, Defendant, Appellee.

No. 05-2721.

United States Court of Appeals, First Circuit.

November 3, 2006.

Carlos M. Vergne for appellant.

Carl Schuster, with whom Mariela Rexach and Schuster & Aguiló LLP were on brief, for appellee.

Before SELYA, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

In this unusual employment discrimination case, we must decide what prima facie showing is necessary to establish an adverse employment action, within the meaning of Title VII, when a plaintiff alleges a retaliatory failure-to-hire. Claims of retaliation in the failure-to-hire context are sufficiently rare that this question is one of first impression for this court. When a plaintiff makes such a claim, we conclude that the establishment of an "adverse employment action" requires a showing that (1) she applied for a particular position (2) which was vacant and (3) for which she was qualified. In addition, of course, she must show that she was not hired for that position.

Appellant Gladden Velez claims that her former employer, appellee Janssen Ortho, refused to consider her for re-employment in retaliation for a previous lawsuit she filed against the company in the Puerto Rico Court of First Instance alleging sexual harassment by her supervisor. She brought this employment discrimination lawsuit, in the federal district court of Puerto Rico, under Title VII and Puerto Rico commonwealth statutes. The district court granted summary judgment for Janssen on all claims, finding that Velez failed to make a prima facie showing of retaliation. We affirm the district court's judgment, although on narrower grounds.

I.

A. Factual Background

We recount the facts of this case with the summary judgment standard in mind, drawing all reasonable inferences and viewing the record in favor of Velez, the non-moving party. See, e.g., Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.2006).

Velez was first hired to work for Janssen in August 1989, and she remained at Janssen's Gurabo chemical plant until December 1998. While working at the Gurabo plant, Velez claimed that she was sexually harassed by her supervisor; she also alleged that her boss retaliated against her for reports of manufacturing irregularities she submitted to the Food and Drug Administration. In response to the alleged harassment and retaliation, Velez filed a commonwealth law claim in the Court of First Instance of Puerto Rico (the "Caguas court") on June 23, 1997. After the Caguas case was filed, Velez remained a Janssen employee and continued to perform her duties satisfactorily for over a year.

In November 1998, Velez applied for a promotion to the position of Senior Packaging Engineer. Janssen denied her request because she was not qualified for the position. Shortly thereafter, in December 1998, Janssen closed the Gurabo chemical plant and Velez lost her job; Velez received a standard severance package totaling $12,704.86. Two weeks later, Velez amended her original Caguas case to include an additional allegation of retaliation, based on Janssen's failure to transfer her to a new position after the closing of the Gurabo plant.

In February 1999, Velez sent a letter and resume to Janssen requesting that she be considered for a Manufacturing Supervisor position. Janssen did not respond. In May 1999, Velez sent another letter and resume applying for the Senior Packaging Engineer job, for which she had been rejected prior to the closing of the Gurabo plant. Again, Janssen sent no reply to Velez.¹

About two years later, on August 8, 2001, Velez again contacted Janssen seeking employment. She sent a general cover letter and resume to Janssen's human resources department via certified mail, requesting consideration for employment. Her letter expressed interest in "any position available." Velez mentioned a variety of general job categories (such as manufacturing supervisor, warehouse supervisor, and utilities supervisor) and asked to be considered for any position for which the human resources department considered her qualified. One week later, on August 15, Velez sent an identical letter and resume to the human resources department, this time via facsimile.

In response to Velez's August 2001 letters and resumes, Janssen's director of human resources, Carlos Otero, sent a letter stating that she would not be considered for an interview or "rehiring." Otero's letter mentioned Velez's prior lay-off and severance, as well as the company's "business needs" as an explanation. Otero subsequently testified that he consulted with one of Janssen's lawyers prior to finalizing and sending the rejection letter. He also testified, as did other Janssen employees, that the human resources department typically sent no response to rejected applicants.

Three days after Otero sent Velez the rejection letter, Janssen published an advertisement in the local newspaper for two Manufacturing Process Facilitator ("MPF") positions.² Janssen interviewed at least one candidate for one of the MPF jobs sometime in September. Janssen did not hire anyone for either position at that time. One of the positions remained vacant until July 2002, almost a year after Velez applied.³

B. Procedural Background

Velez filed her complaint in this case on January 27, 2003, alleging federal claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, and Title VII, 42 U.S.C. § 2000e-3. She also asserted claims under Puerto Rico's Act No. 44, P.R. Laws Ann. tit. 1, § 501 (disability discrimination); Act No. 100, P.R. Laws Ann. tit. 29, § 146 (gender-based employment discrimination); Act No. 115, P.R. Laws Ann. tit. 29, § 194a (retaliatory employment discrimination) ("Law 115"); Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5141-42 (general tort statute); and the privacy protections in the Puerto Rican constitution.

Janssen subsequently moved for summary judgment, arguing that Velez: (1) failed to meet her prima facie burden of showing retaliation because her prior lawsuit was not protected activity under Title VII, and (2) failed to show a causal connection between her conduct and an "adverse employment action" by Janssen.

In granting judgment for Janssen, the district court used the McDonnell Douglas burden-shifting framework for employment discrimination claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). That is, the district court found that Velez bore the initial burden of making a prima facie showing of three elements: (1) she engaged in protected activity; (2) she suffered an adverse employment action; and (3) a causal connection existed between her protected activity and the adverse employment action. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004). The court also discussed the more precise standard for causation in failure-to-hire cases, as articulated in Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir.1986). In Ruggles, the Ninth Circuit held that a plaintiff claiming that a failure-to-hire amounted to discriminatory retaliation must "show that the position for which she applied was eliminated or not available to her because of her protected activities." Id.

The district court first concluded that Velez's activities were not protected under Title VII. It found that Velez's "filing and successive amended filings of discrimination lawsuits against Janssen [were] unreasonable," and therefore held that Velez had not engaged in protected activity. See Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 230-31 (1st Cir.1976) (applying a balancing test to determine whether specific actions are protected "opposition activity" and holding that an employee's actions may not be protected under Title VII where they are hostile and disruptive).

The district court alternatively held that Velez failed to satisfy the causation element of her prima facie case. It found that her allegations could not support an inference of discriminatory retaliation because she sent her letters of "application" without specifying a particular job opening and at a time when there were no positions open to external candidates. The court therefore concluded that there was no failure-to-hire that could have been caused by Velez's prior opposition conduct.

The court also rejected Velez's claim under the Americans with Disabilities Act and the supplemental commonwealth law claims. On appeal, she challenges only the dismissal of her employment discrimination claims under Title VII and Puerto Rico law.

II.

Our review of the district court's summary judgment is de novo. Ingram v. Brink's, Inc., 414 F.3d 222, 228 (1st Cir. 2005); Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 30 (1st Cir.2003). We must examine the evidence in the light most favorable to the non-moving party, and give that party "the benefit of any and all reasonable inferences." Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.2004). Summary judgment is an appropriate resolution of claims where "there is no genuine issue as to any material fact," and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Calero-Cerezo, 355 F.3d at 19.

Our evaluation of Velez's claims begins with § 704(a) of Title VII, which prohibits an employer from "discriminat[ing] against any of [its] employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has ... participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). As already noted, claims of retaliatory discrimination under this provision must begin with a prima facie showing of three elements: (1) protected opposition activity, (2) an adverse employment action, and (3) a causal connection between the protected conduct and...