Citations
- 851 F. Supp. 2d 336
Full opinion text
OPINION AND ORDER
DANIEL R. DOMINGUEZ, District Judge.
Pending before the Court is Defendant’s Motion for Summary Judgment and the Statement of Uncontested Material Facts in Support of Motion for Summary Judgment (Docket No. 40), which was referred to Magistrate Judge Camille Velez Rivé for a report and recommendation (Docket Nos. 72 and 73).
Upon review of Magistrate Judge’s Report and Recommendation (Docket No. 78), the Court hereby ADOPTS the same as outlined below and GRANTS Universal’s motion for summary judgment (Docket No. 40), DISMISSING WITH PREJUDICE Plaintiffs federal claims and DISMISSING WITHOUT PREJUDICE the state law claims.
I. PROCEDURAL HISTORY
On June 1, 2010, Mr. Gidel MéndezMartinez, his wife Diana Collazo-Santiago and their conjugal partnership (collectively, “Plaintiff’) filed a complaint against his former employer under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, 29 U.S.C.A. §§ 621 et seq. (“ADEA”), Act No. 100 of June 30, 1959, Act No. 80 of May 30, 1976 and Article 1802 of the Puerto Rico Civil Code, based on alleged discrimination, harassment and retaliatory activities during his employment on the basis of age. (Docket No. 1).
On July 7, 2011, defendants CAICO Insurance Company (“CAICO”), Universal/CAICO, Universal Insurance Company and Universal Group (collectively, “Universal”) filed a motion for summary judgment with the corresponding statement of uncontested facts and exhibits in support thereof. Universal’s request for summary judgment rests on the grounds that: (1) Plaintiffs claims regarding age discrimination prior to November 3, 2009 are time-barred for failure to timely file the required administrative charge with the Equal Employment Opportunity Commission (“EEOC”); (2) Plaintiff lacks evidence to establish a prima facie case of age discrimination under ADEA; (3) Plaintiff did not suffer and adverse employment action and was not replaced in his former position; (4) Plaintiff resigned voluntarily from his employment with Universal; (5) there was no constructive discharge; and (6) the supplemental state claims lack merit. (Docket Nos. 40, 43, 48 and 49).
On September 9, 2011, Plaintiff opposed Universal’s request for summary judgment and statement of uncontested facts. (Docket No. 53). Thereafter, Universal filed, with leave of the Court, a response in opposition to Plaintiffs filing. (Docket No. 59).
On October 26, 2011, the pending motion for summary judgment and other non-dis-positive motions were referred to Magistrate Judge Vélez (Docket Nos. 72 and 73). On December 13, 2011 Magistrate Judge Vélez entered her Report and Recommendation recommending that the Court grant Universal’s motion for summary judgment. (Docket No. 78).
In her Report and Recommendation, Magistrate Judge Vélez sets forth the uncontested facts in the instant case and concluded that Plaintiff did not establish a prima facie case for age discrimination under ADEA nor under local law because there was no adverse employment action and because he did not prove that someone younger was favored against him; that there was no constructive discharge because Plaintiff resigned voluntarily; that there was no hostile work environment to support a claim for harassment; and that the claim for retaliatory activities is also unsupported in lack of an adverse employment action.
On December 27, 2011, Plaintiff filed his objections to the Report and Recommendation (Docket No. 79). Therein, Plaintiff mainly rehashes the allegations previously averred in his opposition to Universal’s motion for summary judgment, which he claims were not properly addressed or considered by Magistrate Judge Vélez. Thus, Plaintiff asserts that the Magistrate Judge erred in her recommendations and that this Court should not adopt them.
On January 10, 2012, Universal filed an opposition to Plaintiffs objections (Docket No. 81). Universal notes that Magistrate Judge Vélez properly addressed, considered and rejected (when appropriate) all of Plaintiffs arguments and the evidence in-eluded in the record, and that Plaintiff has failed to establish that the conclusions and recommendations in the Report and Recommendation of Magistrate Judge Velez are unsupported, or that her application of the laws to the facts of the instant case are legally unsound. Thus, Universal requests that this Court approve and adopt the Report and Recommendation and dismiss Plaintiffs opposition.
II. MAGISTRATE’S REPORT AND RECOMMENDATION
The Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See also Fed. R. Civ.P. 72(b); D.P.R. Civ. R. 72(a); and Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Nonetheless, an adversely affected party may contest the Magistrate Judge’s Report and Recommendation by filing its objections to the recommendations made. Fed.R.Civ.P. 72(b). In such respect, 28 U.S.C. § 636(b)(1), in pertinent part, provides that
any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.
“Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S. Ct. 571, 88 L.Ed.2d 556 (1985). Additionally, “failure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objections are precluded upon appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992); see also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in a magistrate’s recommendation, as well as the magistrate’s failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[o]bjection to a magistrate’s report preserves only those objections that are specified”); Borden v. Sec. of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”).
The Court, in order to accept unopposed portions of the Magistrate Judge’s Report and Recommendation, needs only satisfy itself that there is no “plain error” on the face of the record. See Douglass v. United Servs. Auto., Ass’n, 79 F.3d 1415, 1419 (5th Cir.1996) (en banc) (extending the deferential “plain error” standard of review to the un-objected to legal conclusions of a magistrate judge); see also Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en banc) (appeal from district court’s acceptance of un-objected to findings of magistrate judge reviewed for “plain error”); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (finding that the “Court reviews [unopposed] Magistrate’s Report and Recommendation to ascertain whether or not the Magistrate’s recommendation was clearly erroneous”) (adopting the Advisory Committee note regarding FED. R.CIV. P. 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990) (finding that “when no objections are filed, the district court need only review the record for plain error”).
An adversely affected party may “contest the [m]agistrate [jjudge’s report and recommendation by filing objections ‘within ten days of being served’ with a copy of the order.” United States v. Mercado Pagan, 286 F.Supp.2d 231, 233 (D.P.R.2003) (citing 28 U.S.C. § 636(b)(1)). If objections are timely filed, the district judge shall make a de novo determination of those portions of the report or specified findings or recommendation to which an objection is made. See Bonefont-Igaravidez v. International Shipping Corp., 659 F.3d 120 (1st Cir.2011); and Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006).
In the instant case, Plaintiff objects all of the conclusions reached by the Magistrate Judge and contends that the Magistrate Judge failed to consider Plaintiffs allegations that would establish a prima facie case of age discrimination and the claims for hostile work environment, harassment and retaliation. Consequently, the Court reviews de novo for plain error both the uncontested facts and the legal analysis of Plaintiffs claims of age discrimination, harassment, and retaliation.
III. SUMMARY JUDGMENT
A motion for summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure, which entitles a party to judgment 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 the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.” See Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir.2008) (citing Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.2004) (stating that an issue is genuine if it can be resolved in favor of either party). In order for a disputed fact to be considered “material” it must have the potential “to affect the outcome of the suit under governing law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660-661 (1st Cir.2000) (citing Liberty Lobby, Inc., 477 U.S. at 247-248, 106 S.Ct. 2505); Prescott, 538 F.3d at 40 (citing Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008)).
The principle of the summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997) (citing Fed.R.Civ.P. 56(e) advisory committee note to the 1963 Amendment). The moving party must demonstrate the absence of a genuine issue as to any outcome-determinative fact on the record. Shalala, 124 F.3d at 306. Upon a showing by the moving party of an absence of a genuine issue of material fact, the burden shifts to the nonmoving party to demonstrate that a trier of fact could reasonably find in his favor. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The non-movant may not defeat a “properly focused motion for summary judgment by relying upon mere allegations,” but rather through definite and competent evidence. Maldonado-Denis v. CastilloRodriguez, 23 F.3d 576, 581 (1st Cir.1994). The non-movant’s burden thus encompasses a showing of “at least one fact issue which is both ‘genuine’ and ‘material.’ ” Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990); see also Suarez v. Pueblo Int'l., 229 F.3d 49, 53 (1st Cir.2000) (stating that a non-movant may shut down a summary judgment motion only upon a showing that a trial-worthy issue exists). As a result, the mere existence of “some alleged factual dispute between the parties will not affect an otherwise properly supported motion for summary judgment.” Liberty Lobby, Inc., 477 U.S. at 247-248, 106 S.Ct. 2505. Similarly, “summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).
When considering a motion for summary judgment, the Court must examine the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor in order to conclude whether or not there is sufficient evidence in favor of the non-movant for a jury to return a verdict in its favor. Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir.2002). The Court must review the record as a whole and refrain from engaging in an assessment of credibility or weigh the evidence presented. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The burden placed upon the non-movant is one of production rather than persuasion. In other words, in weighing a non-movant’s opposition to summary judgment the Court should not engage in jury-like functions related to the determination of credibility.
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Summary judgment is inappropriate where there are issues of motive and intent as related to material facts. See Poller v. Columbia Broad. Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (summary judgment is to be issued “sparingly” in litigation “where motive and intent play leading roles”); see also Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (“[Findings as to design, motive and intent with which men act [are] peculiarly factual issues for the trier of fact.”); Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir.2000) (finding that “determinations of motive and intent ... are questions better suited for the jury”).
Conversely, summary judgment is appropriate where the nonmoving party rests solely upon “conclusory allegations, improbable inferences and unsupported speculation.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir.1996).
IV. ADEA
A. Elements for a Prima Facie Case
ADEA prohibits discrimination in public and private employment against individuals who are at least 40 years of age. 29 U.S.C. §§ 621-634. ADEA violations may be established by proving either disparate treatment or disparate impact. Smith v. City of Jackson, Miss., 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). Plaintiffs often allege claims under both theories. See Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93 (2d Cir.2001).
Disparate treatment claims under ADEA may be based on direct or circumstantial evidence, as set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a prima facie case of intentional age discrimination may be established by demonstrating that: (1) plaintiff is a member of the protected age group (i.e. was at least forty (40) years of age); (2) plaintiff was qualified for the position in question; (3) despite being qualified, plaintiff was adversely affected; and (4) someone younger, with similar or lesser qualifications, was treated more favorably.
The claims of the instant case are consistent with allegations of disparate treatment. Consequently, the Court must determine whether there is direct or circumstantial evidence proving the elements of McDonnell Douglas of intentional age discrimination. In this case, there is no doubt that Plaintiff meets the first and the second elements of the prima facie case for age discrimination. In fact, Plaintiff met the first element for this type of action from day one, as he was hired when he was within the ADEA age-protected group. The question remains as to whether Plaintiff meets the last two elements.
In connection with the adverse employment action, the parties have uncontested that Plaintiff prepared a letter of resignation on May 27, 2009 to Universal, wherein he did not make reference to or made any allegation of age discrimination as the basis for his resignation. Plaintiff made an appointment with Mr. Luis Miranda Casañas, Universal’s chief executive officer (“CEO”), tendered his resignation and delivered the letter by hand to Universal’s CEO. Further, the parties also agree that Plaintiff was asked to reconsider his resignation shortly after its delivery by to Universal’s chief legal officer and the CEO’s daughter. He did not immediately accept to rescind and determined to ponder the matter. When he eventually notified the CEO on the same date about his change of heart, the CEO would not accept the withdrawal of his resignation.
Plaintiff intends to convince this Court that Universal’s refusal to accept Plaintiffs reconsideration of his resignation should be considered an adverse employment against him despite the fact that he voluntarily prepared and tendered his resignation letter after numerous promotions and salary increases, and after two prior unsuccessful attempts to resign (once in 2004 and then in 2006) in order to pursue Plaintiffs interests of opening his own insurance company. Under such chain of events, this Court simply cannot accept Plaintiffs allegation that Universal’s acceptance of Plaintiffs resignation, despite having rescinded resignation, constitutes an adverse employment action.
To establish the fourth element of a prima facie case of age discrimination, plaintiffs must prove that the employer must have discriminated against plaintiff in favor of someone younger. In this respect, the First Circuit has previously stated that
[a] discharged employee ‘is not replaced when another employee is assigned to perform the plaintiffs duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work.’ Rather, ‘a person is replaced only when another employee is hired or reassigned to perform the plaintiffs duties.’
LeBlanc v. Great American Ins. Co., 6 F.3d 836, 846 (1993) (citations omitted) (quoting Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir.1990), cert. denied, 498 U.S. 878, 111 S.Ct. 211, 112 L.Ed.2d 171 (1990)). Thus, to reasonably infer that Plaintiff was replaced by a younger employee, this Court would have to conclude that Plaintiffs duties, and no others, were allocated to a younger employee that was hired to perform Plaintiffs duties subsequent to his resignation.
In this respect, Plaintiff averred that Ms. Yale, a significantly younger and less experienced person than Plaintiff, was appointed as the vice president of a division of CAICO two (2) days before Plaintiffs resignation as CAICO’s president. Nonetheless, Plaintiff made no allegation that Ms. Vale, or any other person, was hired or reassigned to replace Plaintiff, or that Universal assigned any or all of Plaintiffs duties or functions to such person. Instead, Plaintiffs contention that Universal discriminated against him in favor of a younger employee is based solely on the fact that Plaintiff had nothing to do with Ms. Vale’s appointment as vice president and on the evident age difference between the two. Plaintiff has failed to proffer any evidence suggesting that Universal assigned his job to a younger employee or that his duties were reassigned in whole or in part to a younger employee in his or her favor.
For the reasons set forth above, and after examining the facts in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, this Court finds that Plaintiff has failed to establish a prima facie case as he has not been adversely affected and or replaced by a younger person to perform his duties.
B. Constructive Discharge
When a plaintiff in an employment discrimination case alleges that the adverse employment action which he suffered was an unpleasant working environment that resulted in his discharge, such allegation “presents a special wrinkle that amounts to an additional prima facie element.” Landrau-Romero v. Banco Popular De Puerto Rico, 212 F.3d 607, 612 (1st Cir.2000) (setting for the “wrinkle” in a Title VII context); see also Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 50 (1st Cir.2008) (outlining the additional requirements of an ADEA constructive discharge theory prima facie case). Under the constructive discharge theory, the plaintiff must show that the employer engaged “in a calculated, age-inspired effort to force an employee to quit.” De La Vega v. San Juan Star, Inc., 377 F.3d 111, 117 (1st Cir.2004). However, not all unpleasant conduct is sufficient to show constructive discharge. Rather, a plaintiff must show that “the working conditions imposed by the employer had become so onerous, abusive, or unpleasant that a reasonable person in the employee’s position would have felt compelled to resign.” Velazquez-Fernandez v. NCE Foods, Inc., 476 F.3d 6, 12 (1st Cir.2007). The First Circuit has further specified that “the question is not whether working conditions ... were difficult or unpleasant, but rather, an employee must show that, at the time of his resignation, his employer did not allow him the opportunity to make a free choice regarding his employment relationship [and] ... it effectively must be void of choice or free will.” Torrech-Hernández, 519 F.3d at 50 (internal quotation and citation omitted).
In support of his allegations, Plaintiff presented evidence showing that: (1) Plaintiff was taken away functions and duties belonging to his role in CAICO, such as the marketing functions, functions of hiring officers at CAICO, and the administration of the office building; (2) the CEO had made remarks about his intent to build a team of young professionals in preparation for passing Universal’s administration onto his daughter; (3) on April of 2009, the CEO increased the number and frequency of visits to CAICO’s offices allegedly displaying a “hostile attitude,” which consisted of plaintiffs perception that the CEO was not greeting him with a handshake as frequently as before, that the CEO was escorted by a bodyguard, and that the CEO made derogatory comments about CAICO and the employees under Plaintiffs supervision; (4) upon learning of the resignation of two other officers of CAICO earlier that day (Mr. Soto and Mr. Forteza), he felt compelled to resign out of indignation and fear that Plaintiff would also be fired; and (5) when Plaintiff tried to retract his resignation on the same day of its delivery, the CEO refused to accept it. (Docket No. 53 and accompanying documents thereto).
In this respect, Plaintiff attempts to convince this Court that the duties and functions that were allegedly taken away from him were inherent to the positions Plaintiff held at CAICO. Plaintiff admitted that he had no knowledge of the reasons for CAI-CO’s decision, but that they must have been based on a discriminatory animus. See Docket Nos. 40 and 53.
This Court, does not deem proper to second guess employer decisions taken by the directors and officers of for-profit entities that are generally motivated to improve performance of the results of operations of the entities under their care. In the case of corporate conglomerates composed of multiple controlled entities, directors and officers take many decisions in furtherance of their business objectives without having to consult with every president or vice president of the entities within such conglomerate. Absent any evidence that proves a discriminatory animus in the decision-making process; federal courts may not assess the merits or rationality of nondiscriminatory business decisions. See Meléndez v. Autogermana, Inc., 622 F.3d 46, 53 (1st Cir.2010); Webber v. Int’l Paper Co., 417 F.3d 229, 238 (1st Cir.2005); Rathbun v. Autozone, Inc., 361 F.3d 62, 74 (1st Cir.2004); and Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir.1991) (“Courts may not sit as super personnel departments, assessing the merits — or even the rationality — of employers’ nondiseriminatory business decisions.”).
Of the aforementioned facts, none rise to the level of constructive discharge. Not one of these facts indicate that Plaintiffs free will was annihilated and that he had no choice other than to resign from his position. Further, the First Circuit has stated that “apprehension of future termination is insufficient to establish constructive discharge — instead an employee is obliged not to assume the worst, and not to jump to conclusions too fast.” Torrech-Hernández, 519 F.3d at 51-52 (internal quotation omitted). Plaintiff proffers no evidence indicating that he was left without a reasonable option other than to tender his resignation and no indication that the CEO’s actions towards him constituted “harassment so severe and oppressive that staying on the job while seeking redress [was] intolerable.” De La Vega v. San Juan Star, Inc., 377 F.3d 111, 118 (1st Cir.2004). Consequently, the Court finds that Plaintiff has failed to meet his burden of establishing a prima facie case of discrimination under McDonnell Douglas. The Court hereby GRANTS Universal’s motion for summary judgment as to the ADEA discrimination claim based upon a constructive discharge theory.
C. Harassment and Hostile Work Environment
To succeed in a hostile work environment claim under ADEA, a plaintiff must show evidence demonstrating that: (1) he is a member of the class protected by the ADEA; (2) he was subjected to unwelcome harassment; (3) the harassment was based on age; (4) the harassment was sufficiently pervasive or severe so as to alter the conditions of the plaintiffs employment and create an abusive work environment; (5) the objectionable behavior was both subjectively and objectively offensive such that a reasonable person would find it hostile or abusive; (6) that the plaintiff found it hostile or abusive; and (7) some basis for employer liability has been established. See Gutiérrez-Lines v. Puerto Rico Elec. and Power Authority, 751 F.Supp.2d 327, 341-342 (D.P.R.2010) (citing Marquez v. Drugs Unlimited, Inc., 2010 WL 1133808 at *8 (D.P.R.2010) and O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir.2001)); see also Rodriguez-Torres v. Gov’t Dev. Bank of Puerto Rico, 704 F.Supp.2d 81, 100 (D.P.R.2010). The Court typically looks to the totality of the circumstances, analyzing “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance” in order to determine whether a hostile work environment exists. O’Rourke, 235 F.3d at 728-29 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).
In support of the harassment and hostile work environment claims, Plaintiff proffered the same evidence discussed above relating to his constructive discharge theory. In addition, Plaintiff alleged that: (1) sometime in April of 2009, the CEO had made derogatory comments about Mr. Soto, an officer of CAICO, when he referred to him in front of Plaintiff as “that fat old man” (“el viejo gordo ese”); (2) also on April of 2009, the CEO had made derogatory comments about Mr. Forteza, another officer of CAICO, when he referred to him in front of Plaintiff as “that young fella” (“el muchachito ese”); and (3), that he felt compelled to resign out of indignation after learning that Mr. Soto and Mr. Forteza resigned from their positions at CAICO because, as Plaintiff alleged, they could no longer cope with the CEO’s harassment and the hostile work environment created against them. (Docket No. 40-5, pages 30-31 and Docket No. 53 and accompanying documents thereto).
In addition to examining Plaintiffs allegations, the Court also analyzed the evidence presented by Universal in opposition to Plaintiffs claim of harassment and hostile work environment. The Court examined Plaintiffs history of promotions and salary increases, Universal’s attempts to prevent Plaintiffs resignation from CAI-CO, and the circumstances surrounding his hiring and resignation.
To such extent, the record shows that Plaintiff was hired during November of 1992 to work at CAICO at the age of forty-one (41). On 2002, his salary was $130,200, which was increased to $150,200 on 2003. On 2004, after the CEO convinced Plaintiff not to resign from CAICO, Plaintiff was promoted to Senior Vice President of CAICO, with a corresponding salary increase to $225,000. The next year, during 2005, Plaintiff was promoted again to Executive Vice President of Underwriting of CAICO, and his salary was increased to $261,700 (base salary of $191,700 plus $70,000 in expense reimbursements and other benefits and incentives). On 2006, Plaintiff tried to resign once again to pursue his interests of opening his own insurance company, but the CEO convinced him to remain at CAICO. At that time, he was promoted as President of CAICO. On 2008, Plaintiff received another salary increase to at least $297,740 (base salary of $227,740 plus $70,000 in expense reimbursements and other benefits and incentives). Lastly, on 2009 and merely two weeks before his resignation, Plaintiffs base salary was increased to $239,126 with the same expense reimbursements and retaining other benefits and incentives of the immediate past. Also on 2009, Plaintiff was publicly recognized amongst his peers and employees for the operational results achieved during 2008. (Docket No. 40-1, ¶¶ 9-11, 16-24).
The Court further notes that a few months before Plaintiff resigned, he spoke with the CEO and his daughter about CAICO’s future and about his own future in CAICO. Plaintiff specifically asked them whether he would be terminated, to which they responded, as admitted by Plaintiff, “no, you know that we are counting [on] you.” (Docket No. 40-1, ¶¶ 69-71). Further, the record shows that Plaintiff admitted that he was hired while he was above the ADEA protected age group, that Plaintiff was promoted various times during his employment at CAICO, that he also received numerous increases in salary and benefits, that the CEO showed genuine interest in retaining Plaintiff in his staff and in convincing Plaintiff not to resign from Universal on two separate occasions (in 2004 and in 2006).
Viewing the record in the light most favorable to Plaintiff and drawing all inferences in his favor, this Court cannot find that Universal’s conduct was sufficiently severe or pervasive to merit continuing to trial the claim of hostile work environment.
D. Retaliatory Acts
In a retaliation claim under ADEA, a plaintiff must show that he engaged in a protected activity under ADEA, that he suffered an adverse employment action as a result of his participation in said activity, and that there is a causal connection between those two elements. See Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998).
In this respect, Plaintiff alleged that he filed a complaint with the state EEOC on the basis of age discrimination approximately five (5) months after he resigned from Universal. Plaintiff further alleges that retaliation occurred when Universal sued him for engaging in insurance-related work activities after his resignation from Universal.
In response to this allegation, Universal contends that Plaintiff was sued for breach of contract. On September of 2004, the parties executed a Retention and Deferred Compensation Agreement which included a non-competition clause whereby Plaintiff consented not to engage in business services or activities similar to those offered by Universal within the territory of Puerto Rico for a term of twelve (12) months after the voluntary or involuntary termination of his employment with Universal. As it turns out, and by Plaintiffs own admission during the deposition taken on April 4, 2011 (Docket No. 40-4, pages 5-11), Plaintiff had been employed at two insurance companies in Puerto Rico within the twelve-month period following his resignation from Universal. Based on those set of facts, the Court finds that Universal’s counterclaim for breach of contract is not frivolous and prima facie non-discriminatory as the agreement was signed on 2004, when there was no vestige of any allegation of age discrimination. Further, Plaintiff admits that the fact that motivated the agreement was non-discriminatory as Plaintiff was seriously contemplating establishing his own insurance enterprise, while on the other hand, the CEO wished to retain Plaintiff in CAICO’s staff by granting him a $75,000 salary increase and promotion to senior vice president.
While Plaintiffs filing with the EEOC is considered a protected activity, Plaintiff cannot demonstrate that he suffered an adverse employment action or that Universal filed a lawsuit for breach of contract as a result of the EEOC filing. Consequently, Plaintiffs retaliation claim is dismissed.
V. SUPPLEMENTAL STATE LAW CLAIMS
Having dismissed all of Plaintiffs federal claims, the Court declines to exercise supplemental jurisdiction over Plaintiffs Puerto Rico law claims. “[A] district court has discretion to decline to exercise supplemental jurisdiction after dismissing ‘all claims over which it ha[d] original jurisdiction.’ ” Figueroa v. Alejan dro, 597 F.3d 423, 431 n. 10 (1st Cir.2010) (quoting 28 U.S.C. § 1367(c)(3)). See Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1176 (1st Cir.1995) (finding that dismissal of supplemental state actions without prejudice is appropriate where there is an “unfavorable disposition of a plaintiffs federal claims” before trial). Although “[i]n an appropriate situation, a federal court may retain jurisdiction over state-law claims notwithstanding the early demise of all foundational federal claims,” the usual case will point toward declining to exercise jurisdiction over the remaining state-law claims when the Court balances the factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity. Id. at 1176; see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988).
VI. CONCLUSION
For the reasons set forth above, the Court hereby ADOPTS, as supplemented herein, the Magistrate Judge’s Report and Recommendation (Docket No. 78) and GRANTS Universal’s motion for summary judgment (Docket No. 40), DISMISSING WITH PREJUDICE Plaintiffs claims under ADEA and DISMISSING WITHOUT PREJUDICE the state law claims. Judgment shall be entered accordingly.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
CAMILLE L. VELEZ-RIVE, United States Magistrate Judge.
INTRODUCTION
Plaintiffs Gidel Méndez-Martínez, his wife Diana Collazo-Santiago and their conjugal partnership (hereafter “plaintiff Méndez-Martínez”) filed a complaint against defendants under Title ATI of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (hereafter “ADEA”), 29 U.S.C.A. sec. 621 et seq., supplemental state law claims under Law No. 100 of June 30, 1959, Law No. 80 of May 30,1976 and Article 1802 of the Puerto Rico Civil Code, based on alleged discrimination/harassment in employment because of age. (Docket No. 1).
On July 7, 2011, defendants CAICO Insurance Company, Universal/CAICO, Universal Insurance Company and Universal Group (hereafter “Universal”) filed a Motion for Summary Judgment with the corresponding statement of uncontested facts and exhibits in support thereof. Defendant Universal’s request for summary adjudication rests on grounds that: plaintiff Méndez-Martínez’ claims regarding age discrimination prior to November 3, 2009 are time-barred for failure to timely file the required administrative charge with the Equal Employment Opportunity Commission; plaintiff lacks evidence of age discrimination so as to establish a prima facie case; plaintiff did not suffer and adverse employment action and was not replaced in his former position; plaintiff Méndez-Martínez voluntarily resigned from his employment with defendant Universal and there was no constructive discharge; and the supplemental state claims lack merit. (Docket No. 40).
On September 9, 2011, plaintiff Méndez-Martínez filed the opposition to defendant’s summary judgment with the objection to defendant’s statement of uncontested facts. (Docket No. 53). Defendant Universal then filed, with leave of court, a response in opposition to plaintiffs filing. (Docket No. 59).
On October 26, 2011, the Court referred related non-dispositive motions regarding the parties’ summary judgment filing, which were ruled upon by this Magistrate Judge as non-dispositive. The Court also referred Universal’s Motion for Summary Judgment for report and recommendation, as discussed below. (Docket Nos. 72 and 73).
STANDARD FOR SUMMARY JUDGMENT
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).
Pursuant to the language of the applicable rule, as amended in 2010, the moving party bears the two-fold burden of showing that there is “no genuinely disputed” factual predicate. “Said party may also show that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” See Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997).
After the moving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists “a trial worthy issue as to some material fact.” Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997). A fact is deemed “material” if it potentially could affect the outcome of the suit. Id. Moreover, there will only be a “genuine” or “trial worthy” issue as to such a “material fact,” “if a reasonable fact-finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party’s favor.” Id.
At all times during consideration of a motion for summary judgment, Court must examine the entire record “in the light most flattering to the non-movant and indulge all reasonable inferences in the party’s favor.” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994). There is “no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood.... ” Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987). In fact, “[o]nly if the record, viewed in [this] manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997).
UNCONTESTED ISSUES OF FACTS
I. DEFENDANT’S UNCONTESTED FACTS.
A. General.
Universal is a leading property and casually insurance company in Puerto Rico with more than thirty (30) years in business. As of 2009, Universal Group was the parent company of several subsidiaries, including herein defendants CAICO and Universal Life Insurance Company, each with their own Board of Directors and corporate governance, specializing in different areas within the insurance industry. (Deft’s Uncontested ¶¶ 1-2; Exhibit I, Ms. Sary Ann Vázquez’ statement ).
Effective June 1, 2010, Universal Insurance, Eastern America Insurance Company, CAICO and Richport Insurance Company merged into a single entity, Universal Insurance. (Exhibit 1, ¶ 5).
Ms. Sary Ann Vázquez (hereafter “Ms. Vázquez”) indicated knowing plaintiff Méndez-Martínez who used to work at CAICO as its President. Plaintiff Méndez-Martínez was hired around November of 1992 by Mr. Luis Miranda-Casañas (hereafter “Mr. Miranda”), who was born on October II, 1937, and who held then the position of Chief Executive Officer of Universal Group. Plaintiff Méndez-Martínez, who was born on January 4, 1951, was hired when he was age forty-one (41) and Mr. Miranda, who hired him, was then age fifty-five (55). (Deft’s Uncontested ¶¶ 4-7; Exhibit I, ¶¶ 6-7; Exhibit II, Méndez-Martínez’ depo., pp. 34-35).
By September 2002, in his employment with defendant, plaintiff Méndez-Martínez was earning $130,200.00. The following year his salary was raised to $150,200.00. (Deft’s Uncontested ¶ 9; Exhibit III, Memo 10-18-2002; Exhibit IV, Memo 8-11-2003).
At the beginning of 2004, plaintiff Méndez-Martínez told Mr. Miranda he wanted to leave CAICO due to an opportunity in a new venture, namely, to open his own insurance business. Mr. Miranda asked plaintiff to stay in the Company because Mr. Miranda did not want him to leave. (Deft’s Uncontested ¶ 10; Exhibit II, pp. 48-51). Mr. Méndez-Martínez remained at CAICO and, effective on July 1, 2004, his annual compensation was raised to $225,000.00. (Exhibit IV, memo 7-16-2004).
As part of the terms of his employment with defendant, on September 2, 2004, plaintiff Méndez-Martínez executed a Retention and Deferred Compensation Agreement (hereafter “the Agreement”). (Deft’s Uncontested ¶12; Méndez-Martínez’ depo., Exhibit II, pp. 48, 59-60; Exhibit VI-Agreement). The Agreement provided plaintiff Méndez-Martínez with a substantial monetary incentive designed to encourage him to remain in his employment with defendant and to assure that plaintiff Méndez-Martínez would not provide services for a competing business, engage in solicitation, or disclose confidential information of defendant.
In exchange, plaintiff Méndez-Martínez executed a non-compete clause in which he agreed that, during the period of his employment with defendant and for a term of twelve (12) months after the voluntary or involuntary termination of the same, plaintiff could not engage in similar business services or activities within the territory of Puerto Rico. (Deft’s Uncontested ¶ H; Exhibit VI). Section 14 of the Agreement provides that, if plaintiff Méndez-Martínez breached the agreement not to compete described above, he would be held liable to defendant for a sum no less than $500,000.00 in damages. (Id.).
By December 2004, Mr. Miranda was Chief Executive Officer of Universal Group and plaintiff Méndez-Martínez was already Senior Vice-President for CAICO, who reported directly to Mr. Miranda. (Deft’s Uncontested ¶ 16; Exhibit II, Méndez-Martínez’ depo., pp. 85-36; Exhibit I, US).
On August 1, 2005, Mr. Miranda promoted plaintiff Méndez-Martínez to Executive Vice-President of Underwriting (“Subscriptions ”) for CAICO. (Deft’s Uncontested ¶27; Exhibit II, pp. 62-63, 72-73; Exhibit VII, memo 7-27-2005). Plaintiff Méndez-Martínez’ annual base salary was increased to $191,700.00, plus $70,000.00 in expenses and other incentives and benefits. (Exhibit VII; Exhibit VIII, E-mail 8-1-2005).
On 2006, Mr. Méndez-Martínez for the second time renewed his approach to Mr. Miranda with entrepreneurial ideals for he wanted to leave CAICO to open his own Company. (Deft’s Uncontested ¶ 18; Exhibit II, pp. 51/.-55). Mr. Miranda once more convinced plaintiff Méndez-Martínez to stay. (Exhibit II, pp. 55-56). Shortly thereafter, according to Mr. Méndez-Martínez, by the end of 2006, Mr. Miranda promoted him to President of CAICO. (Id., pp. 99, 105; Exhibit IX, Memo 12-18-2006). Plaintiff Méndez-Martínez was responsible for directing CAICO’s operations. (Exhibit I, Sary Ann Vázquez’ statement ¶ 8).
By April 2008, Mr. Méndez-Martínez’ annual base salary, as CAICO’s President, increased to $227,739.62. (Deft’s Uncontested ¶ 20; Exhibit X, memo 1-30-2008). In addition to the base salary, Mr. Méndez-Martínez had other benefits such as car allowance, corporate expense account, and bonuses. On September 16, 2008, defendant granted plaintiff 100% coverage of the payment for his health insurance plan. (Deft’s Uncontested ¶¶ 21-22; Exhibit XI, memo 9-16-2008). Plaintiffs allowance for expenses under his corporate card was of, at least, $70,000 per year. (Exhibit VIII).
In early 2009, plaintiff Méndez-Martínez was recognized and congratulated for achievements in 2008. (Deft’s Uncontested ¶23; Méndez-Martínez’ depo., Exhibit II, p. 173). On May 13, 2009, Mr. Miranda notified Mr. Méndez-Martínez that his newbase salary was augmented to $239,126.00, retroactively to April 1, 2009. (Deft’s Uncontested ¶23; Exhibit XII).
Defendant Universal in its request for summary judgment also submits plaintiff Méndez-Martínez did not suffer any adverse employment action. While plaintiff Méndez-Martínez worked for defendant, there were no salary or benefits reductions before Mr. Méndez-Martínez tendered his resignation on May 27, 2009. (Deft’s Uncontested ¶ 25; Exhibit I, Sary Ann Vázquez’ statement ¶ 12). Mr. Méndez-Martínez never received any disciplinary actions. (Deft’s Uncontested ¶ 26; Exhibit I, ¶ 12). Mi-. Méndez-Martínez has stated that during the last three (3) years of employment he received multiple pay-raises. (Deft’s Uncontested ¶27; Méndez-Martínez’ depo., Exhibit II, pp. 37, 211).
B. Age-based Discrimination and Harassment Claims.
Plaintiff Méndez-Martínez’ complaint submits as alleged discriminatory acts: (I) the alleged elimination and/or reduction of his duties and functions; (ii) the refusal to approve new lines of products for CAICO; (iii) the purported rumors spread in or about years 2004-2005 that Universal would be “taking over” CAICO’s operations and discharging employees; (iv) the hiring and/or appointment of purportedly young employees to high level position; (v) the decision to consolidate all outings, which were individually sponsored by the various companies that form Universal Group, into one company outing for all employees; and (vi) forced resignation due to Mr. Miranda’s hostile treatment. Mr. Méndez-Martínez admitted in his deposition that there is no other basis for his claim of age discrimination and harassment claims. (Deft’s Uncontested ¶29; Exhibit II, p. 235).
Defendant Universal’s submits for summary disposition as to above issues, the following uncontested issues:
(i) Elimination and/or Reduction of Duties and Functions.
While plaintiff Méndez-Martínez worked for Eastern America in 2000, part of his duties as Vice-President of Underwriting included working both Personal and Commercial Lines. At the time, he reported directly to the President of the Company, Mr. Antonio Ortiz (hereinafter, “Ortiz”). (.Deft’s Uncontested ¶ 30; Méndez-Martínez’ depo., Exhibit II, pp. 37-38, 15-16).
As part of a reorganization undertaken in 2000 in plaintiff Méndez-Martínez’ department, the Company “divided” the department, allegedly stripping plaintiff Méndez-Martínez of Personal Lines and giving them to Mr. Carlos Bruno, while plaintiff retained Commercial Lines. (Deft’s Uncontested ¶ 31; Exhibit II, pp. 37-38, 15-16). As part of the reorganization, the Company appointed Mr. Luis Berrios (hereafter “Mr. Berrios”) as Senior Vice-President and direct supervisor of Mr. Méndez-Martínez, for which plaintiff no longer reported directly to the President of the Company but to Mr. Berrios. (Exhibit II, pp. 37-38). Mr. Méndez-Martínez stated his duties and responsibilities changed because Mr. Berrios assumed the role of the “boss”, and plaintiff Méndez-Martínez “assumed another role that was not the same as the one he had before.” (Deft’s Uncontested ¶ 32; Méndez-Martínez’ depo., Exhibit II, pp. 37-38, 15-16,18). Plaintiff Méndez-Martínez admitted he does not know the reasons for the restructure and redistribution of these functions. He also admitted his responsibilities were reduced marginally and his job title and status as Vice-President, as well as his compensation, remained unchanged. (Deft’s Uncontested ¶¶ 33, 31; Exhibit II, pp. 16-17).
Plaintiff Méndez-Martínez also claims that, prior to 2007, the Company began to eliminate some of CAICO’ functions and transferred the same to other affiliate companies. The Company established a “Customer Service” call-center and started transferring to Mr. Berrios, Universal Insurance’s President, administrative chores related to CAICO’s building and eliminating part of CAICO’s Marketing. (Deft’s Uncontested ¶ 35; Exhibit II, pp. 109-111, 128). According to plaintiff, Mr. Miranda decided to establish a Customer Service “call-center” without taking into consideration how that could affect the companies, both CAICO and Universal. (Méndez-Martínez’ depo., Exhibit II, pp. 122-125). The customer service end of the business for both CAICO and Universal was consolidated into one “call-center.” (Deft’s Uncontested ¶ 36; Exhibit II, pp. 123-121 )• Mr. Méndez-Martínez admitted having no knowledge as to the factors Mr. Miranda considered when he made the decision to establish the customer service “call-center.” (Deft’s Uncontested ¶ 37; Exhibit II, p. 125).
As to the responsibility for administrating CAICO’s operational facilities (ie. the building), Mr. Méndez-Martínez explained Universal had an employee who was responsible for the administration of said building. Initially, this administrator reported directly to Johnny Benitez (hereafter “Mr. Benitez”), the former President of CAICO. In or around 2005, Mr. Benitez told Mr. Méndez-Martínez that Universal was trying to strip him (Mr. Benitez) of the functions regarding the administration of the building. (Deft’s Uncontested ¶ 38; Méndez-Martínez’ depo., Exhibit II, pp. 125-127). In 2007, all functions related to the administration of CAICO’s building were finally transferred to Mr. Luis Perez (hereafter “Mr. Perez”). (Deft’s Uncontested ¶ 39; Exhibit II, p. 128). As of the date of Mr. Méndez-Martínez’ deposition, Mr. Perez was sixty (60) years old. (Id.). Plaintiff Méndez-Martínez admitted he does not know why the Company decided to transfer the administration of CAICO’s building to Mr. Perez. (Deft’s Uncontested ¶ 40; Exhibit II, p. 129).
As to the alleged elimination of the functions related to Marketing, Mr. Méndez-Martínez admitted said purported incident happened in or around 2003-2004. (Id.). Plaintiff Méndez-Martínez admitted in his deposition that “jealousy” was the motivating factor behind the decision to strip CAI-CO of those functions. (Exhibit II, p. 129). Specifically, jealousy from part of Mr. Richard R. Schiavo (hereafter “Mr. Schiavo”), the President of Universal Life. (Deft’s Uncontested ¶¶ 41, 42; Exhibit II, pp. 129-130).
Mr. Méndez-Martínez explained there was some kind of rivalry and jealousy amongst the officers and directors of the other sister/subsidiary companies towards CAICO because, in comparison to the other companies, CAICO generated more business and revenues. (Deft’s Uncontested ¶43; Méndez-Martínez’ depo., Exhibit II, pp. 138-139; 129). For that reason the other companies complained CAICO was being too competitive in the market and they wanted to strip away CAICO’s functions. (Exhibit II, pp. 113, 129).
(ii) Refusal to Approve New Lines of Products — Dwelling Policies.
Around 2007, Mr. Méndez-Martínez asked Mr. Miranda for a new line of product for CAICO, namely, an insurance policy for “Walk-up” residential buildings to complement CAICO’s automobile business since the sales of automobiles had declined. (Deft’s Uncontested ¶44; Exhibit II, pp. 110-111, 136). Initially, Mr. Miranda denied the request for the new product line. (Exhibit II, pp. 110, 130). Mr. Miranda approved plaintiff Méndez-Martínez’ petition after it was submitted to the Company’s Board of Directors. (Exhibit II, pp. 110-111, 130). Instead of assigning that new product to CAICO, the Company’s Board of Directors gave it to Mr. Berrios, the President of Universal Insurance. (Deft’s Uncontested HJ5; Méndez-Martínez’ depo., Exhibit II, pp. 111-112). Mr. Berrios is approximately sixty (60) years old. (Deft’s Uncontested ¶46; Exhibit II, p. 158). Mr. Méndez-Martínez acknowledged that, prior to his request, the other subsidiary companies had already attempted to get into that line' — ie. “dwelling” policy — of business. (Exhibit II, p. 131). Mr. MéndeznMartínez admitted having no knowledge as to the factor considered by the Company to assign the purportedly new product to Universal Insurance instead of CAICO. (Deft’s Uncontested ¶¶ 47, 48; Exhibit II, pp. 132-133).
Mr. Méndez-Martínez claims that, on one occasion in 2008, Mr. Miranda called him because an officer from “Popular” bank was complaining that, allegedly, CAI-CO had sold “dwelling” policies to some customers of Popular. (Deft’s Uncontested ¶ 49; Exhibit II, pp. 113, 146-149). In response, Mr. Méndez-Martínez toM Mr. Miranda that “they should get out” [of that line of business] and that he (Mr. Méndez-Martínez) had already instructed his personnel “to do as least as possible”; that is, to reduce the volume in “dwelling”. (Id., pp. 118-119). According to Mr. Méndez-Martínez, Mr. Miranda agreed with him and said they should hold back “dwelling”. (Deft’s Uncontested ¶¶ 50, 51; Exhibit II, pp. U8-U9).
(iii) Rumors that Universal Would be “Taking Over” CAICO’s Operations, and Terminating Employees.
Plaintiff Méndez-Martínez claims that, in or about 2004-2005, some employees started to spread a rumor that Universal would be “taking over” CAICO’s operations, and dismissing CAICO’s employees. (Deft’s Uncontested ¶ 52; Exhibit II, pp. 10-12, hi )• Mr. Méndez-Martínez admitted he was not threatened with discharge. (Id., p. 265).
(iv) Hiring and/or Appointment of Young Employees,
Plaintiff Méndez-Martínez contends that, in or around 2003-2004, Mr. Miranda hired Mr. Schiavo to be in charge of marketing. (Méndez-Martínez’ depo., Exhibit II, pp. 72-73, 97-98). According to plaintiff, Mr. Schiavo had no prior experience but Mr. Miranda hired him because he was young. (Id., p. 98). This was the first occasion in which plaintiff Méndez-Martínez felt discriminated by age. (Id., pp. 97-98). Plaintiff Méndez-Martínez does not know which factors Mr. Miranda considered for hiring Mr. Schiavo. The only thing plaintiff knows is that Mr. Schiavo was a friend of Mr. Miranda’s son-in-law. (Deft’s Uncontested ¶¶ 51-57; Exhibit II, pp. 98-99).
On or about May-June 2006, Mr. Miranda appointed as President of Universal Life another purportedly young employee, whom plaintiff could only recall by his nickname: “Cheka”. (Exhibit II, pp. 93, 91-95). Around that time, plaintiff approached Mr. Miranda and questioned his decision to name Mr. Jose Benitez, a/k/a “Cheka”, as president of Universal Life. Plaintiffs remark to Mr. Miranda was that his decision was not based on performance. (Deft’s Uncontested ¶¶ 57, 58; Exhibit II, pp. 93, 91). According to plaintiff, Mr. Miranda was trying to gather a group of young people, with the youth to lift this business, so that his daughter (Ms. Monica Miranda) would be surrounded by young people after he (Mr. Miranda) is gone, and she ends-up running the business. (Méndez-Martínez’ depo., Exhibit II, pp. OS-96 ). For that reason, Mr. Méndez-Martínez asked whether Mr. Miranda was implying that “he (plaintiff Méndez-Martínez) was no longer useful because of his age”. (Exhibit II, p. 95). Mr. Miranda categorically responded: “no.” (Deft’s Uncontested ¶ 59; Exhibit II, p. 95.). Mr. Méndez-Martínez’ interpretation of the conversation was that Mr. Miranda wanted young people; that he would only give opportunities to young people. (Exhibit II, p. 96). Plaintiff Méndez-Martínez made fun of Mr. Miranda stating that “he [Plaintiff] was no ‘spring chicken ... but that is alright, no problem ... I am going to use a little of Miss Clairol and a little of Botox to see if this changes’ ”. (Deft’s Uncontested ¶ 60; Exhibit II, pp. 96-97).
Plaintiff Méndez-Martínez admitted the above incident was the second time he felt discriminated because of his age. (Deft’s Uncontested ¶ 61; Exhibit II, p. 97). Still, about six (6) or seven (7) months after the alleged conversation took place, Mr. Miranda announced Mr. Méndez-Martínez’ promotion as President of CAICO. (Id., pp. 99, 105). Plaintiff Méndez-Martínez was promoted to President at the age of fifty-five (55). (Deft’s Uncontested ¶ 62; Exhibit II, pp. 6, 99, 105; Exhibit IX, letter 12-18-2006).
Plaintiff Méndez-Martínez also made reference to Ms. Maria Vale’s (hereafter “Ms. Vale”) appointment as Vice President of Underwriting. (Méndez-Martínez’ depo., Exhibit II, pp. 180-181). Ms. Vale was born on May 25, 1968. (Deft’s Uncontested ¶ 68; Exhibit I, Sary Ann Vázquez’ statement at ¶ 9).
Mr. Miranda “announced” Ms. Vale’s appointment as Vice President on Monday, May 25, 2009, just two (2) days before plaintiff Méndez-Martínez tendered his resignation. (Deft’s Uncontested ¶ 6k; Exhibit II, pp. 18k-185). Plaintiff never had to give any kind of training to Ms. Vale. (Id., p. 181). Mr. Miranda never asked plaintiff Méndez-Martínez to give any training to Ms. Vale. (Exhibit XIII, Luis Miranda Casañas’ statement). Mr. Miranda never told plaintiff Méndez-Martínez that Ms. Vale would be his replacement nor did he eliminate any of Méndez-Martínez’ duties or functions to transfer them to Ms. Vale or any other young employee. (Deft’s Uncontested ¶ 65; Exhibit XIII).
(v) Consolidation of Outings for all Employees.
According to plaintiff Méndez-Martínez, CAICO’s company outing was an exclusive event, offered only to CAICO’s employees as an incentive for achieving production goals. (Méndez-Martínez’ depo., Exhibit II, pp. 188, 18k~135). Universal and the other subsidiaries had their own outings. (Exhibit II, pp. 189-lkO). Instead of having different segregated outings, in or around February-April 2009, the Company consolidated them into one integrated outing for all employees. (Deft’s Uncontested ¶¶ 66, 67; Exhibit II, pp. 139-lkl, U5). Plaintiff does not know the reasons for consolidating all outings, as he was not involved in the decision making process. (Deft’s Uncontested ¶ 68; Exhibit II, p. U5).
Defendant Universal discussed for summary judgment plaintiff Méndez-Martínez’ allegations as to instances when he felt discriminated for comments about age, including its reference to comments to which plaintiff made reference of no longer being a “spring chicken.” Plaintiff Méndez-Martínez has alleged that, on the day after it was decided to consolidate the Company’s outings in 2009, he met with Mr. Miranda and his daughter, Ms. Monique Miranda (hereafter “Ms. Miranda”), and inquired about their future plans for CAI-CO, as well as for him. In that meeting, Mr. Méndez-Martínez expressed some concern about his future, as well as CAI-CO’s future, with the Company as he understood they continued taking away functions, consolidated the “outing”, and did not give him the purported new product. According to plaintiff Méndez-Martínez, he was concerned because he was no “spring chicken”, he was no longer a kid, and Mr. Miranda had allegedly spoken to him on various occasions about an alleged issue of youth. Plaintiff Méndez-Martínez added he did not know what it was they wanted but, if they were going to bring in young people, they should tell him because he was no longer a “spring chicken.” (Deft’s Uncontested ¶¶ 69, 70; Exhibit II, p. 157). For those reasons, plaintiff specifically asked them if they wanted him to leave the Company or if they were going to terminate him. (Méndez-Martínez’ depo., Exhibit II, pp. 157-158). The reply, as plaintiff MéndezAMartínez recognized, was: “[n]o you know that we are counting with you”. (Deft’s Uncontested ¶ 71; Exhibit II, pp. 157-158, 159).
(vi) Alleged Constructive Discharge and/or Hostile Treatment.
Plaintiff Méndez-Martínez alleges he felt discriminated and they wanted to take him out because of Mr. Miranda’s treatment and comments. (Id., pp. 153-155). This was allegedly supported when around April 2009, Mr. Miranda, the CEO of the Company, started to visit CAICO’s offices more frequently which plaintiff Méndez-Martínez characterized as a “hostile attitude.” (Deft’s Uncontested ¶¶ 72, 73; Exhibit II, pp. 153, 155). Mr. Miranda’s alleged hostile attitude consiste