Rodriguez-Cuervos v. Wal-Mart ( 1999 )

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<pre> United States Court of Appeals For the First Circuit ____________________ No. 98-1732 JORGE RODRIGUEZ-CUERVOS, Plaintiff, Appellant, v. WAL-MART STORES, INC., ET AL., Defendants, Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jaime Pieras, Jr., Senior U.S. District Judge] ____________________ Before Torruella, Chief Judge, Selya, Circuit Judge, and Acosta, Senior District Judge. _____________________ Maricarmen Almodvar-Daz for appellant. Frances R. Coln-Rivera, with whom Luis F. Antonetti and Goldman Antonetti & Crdova, P.S.C. were on brief, for appellees. ____________________ June 11, 1999 ____________________

 TORRUELLA, Chief Judge. Plaintiff-appellant Jorge Rodrguez-Cuervos ("Rodrguez") filed a complaint charging defendant-appellee Wal-Mart Stores, Inc. ("Wal-Mart") with illegal race and national origin discrimination in violation of federal law. Rodrguez now appeals the district court's grant of summary judgment in favor of the former employer, Wal-Mart. We affirm. BACKGROUND Rodrguez, who is a U.S. citizen born in Puerto Rico, began his employment with Wal-Mart in March 1991. At that time, Wal-Mart was preparing to open its first stores in Puerto Rico. Rodrguez assisted Wal-Mart with the opening of these stores and received training in order to become a store manager. Rodrguez participated in Wal-Mart training programs in Florida and Arkansas. On March 7, 1992, Rodrguez was promoted to the position of Division Manager in Wal-Mart's Store Planning Division, and received a salary increase. As Division Manager, Rodrguez was responsible for the commencement of Wal-Mart's business operations in Fajardo and Hatillo -- two municipalities located in the northeast and northwest of Puerto Rico, respectively. On April 15, 1993, Rodrguez's supervisor rated his overall performance as "exceeded expectations." Under the heading "Overall Strengths," the supervisor described Rodrguez as possessing "a sense of urgency to help when and where he is needed to get Wal-Mart established in Puerto Rico" and "a good caring attitude towards associates." Shortly after this evaluation, Rodrguez was appointed manager of the Wal-Mart store in Isabela. On March 19, 1994, Rodrguez's managerial performance was again evaluated. Although his supervisor cited several areas needing improvement, he concluded that Rodrguez's overall performance again "exceeded expectations." The evaluator described Rodrguez as a "good communicator" with a winning "Yes I Can" attitude. Sometime in mid-1994, Rodrguez was named manager of the Fajardo store. On November 17, 1994, Rodrguez's performance as Fajardo store manager was evaluated by William Cahill, District Manager for Wal-Mart in Puerto Rico, and Hctor Vzquez, Wal-Mart's Human Resources Director for Puerto Rico. Cahill and Vzquez informed Rodrguez of the results of this evaluation in a memorandum dated November 23, 1994. The memorandum outlined several "opportunities" for improvement in Rodrguez's management of the Fajardo store, and requested that Rodrguez submit a written action plan in response to the cited "opportunities." The Cahill/Vzquez memorandum also presented Rodrguez with an ultimatum: either step down from the position of manager of the Fajardo store and be re-trained, or stay on as manager and be held accountable for the results of an attitude survey to be conducted in three days' time, among all of the Fajardo associates. Rodrguez chose the latter option. Good to their word, Cahill and Vzquez conducted an opinion survey of the Fajardo associates on November 26, 1994. On December 27, Rodrguez received the results of this survey, which ranked Rodrguez in several areas as compared with other managers at the store. Cahill and Rodrguez discussed the survey results, and on January 10, 1995, Cahill again evaluated Rodrguez's performance in Fajardo. This time Rodrguez received an overall performance rating of "didn't meet expectations." By memorandum dated May 3, 1995, Wal-Mart removed Rodrguez from the position of store manager. Rodrguez was subsequently demoted to an assistant manager position in the Hatillo store. In due course, Rodrguez filed a complaint alleging Wal- Mart discriminated against him based on his race, ethnicity, and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000-e, and 42 U.S.C. 1981. Wal-Mart moved to dismiss Rodrguez's complaint on the ground that it failed to state a prima facie case of race or national origin discrimination as required under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). In its subsequent Reply to Plaintiff's Response to Dispositive Motion, Wal-Mart also argued that Rodrguez failed to establish that its legitimate and non-discriminatory reason for Rodrguez's demotion was, in reality, a pretext for race or national origin discrimination. On April 8, 1997, the district court issued an order advising the parties that the motion to dismiss would be treated as a motion for summary judgment. On April 30, the district court clarified its April 8 order and advised Rodrguez "to proceed to engage in discovery . . . in order to adequately oppose the motion for summary judgment." Finally, on January 9, 1998, the district court granted summary judgment in favor of Wal-Mart. Rodrguez now appeals. DISCUSSION We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the non- moving party, Rodrguez. See Dominique v. Weld, 73 F.3d 1156, 1158 (1st Cir. 1996). Absent direct evidence of discrimination, a Title VII plaintiff must resort to the three-stage burden-shifting framework set forth in McDonnell Douglas. See Ayala-Gerena v. Bristol Myers- Squibb Co., 95 F.3d 86, 96 (1st Cir. 1996). Under this framework, the plaintiff shoulders the initial burden of adducing a prima facie case of unlawful discrimination. This includes a showing that: (1) plaintiff is a member of a protected class; (2) plaintiff's employer took an adverse employment action against him; (3) plaintiff was qualified for the employment he held; and (4) plaintiff's position remained open or was filled by a person whose qualifications were similar to his. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993); McDonnell Douglas, 411 U.S. at 802; Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999). Establishment of a prima facie case creates a presumption of unlawful discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to rebut this presumption by articulating a legitimate, non-discriminatory reason for its adverse employment action. See McDonnell Douglas 411 U.S. at 802; Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 12 (1st Cir. 1998). In the third and final stage, the burden devolves upon the plaintiff to prove that the reasons advanced by the defendant-employer constitute mere pretext for unlawful discrimination. See Hicks, 509 U.S. at 507-508; Woods v. Friction Materials, Inc., 30 F.3d 255, 260 (1st Cir. 1994). To meet this burden, the plaintiff must prove not only that the reason articulated by the employer was a sham, but also that its true reason was plaintiff's race or national origin. See Shorette, 155 F.3d at 13. As mentioned above, see supra, note 1, at all times Rodrguez bears the burden of proving that Wal-Mart discriminated against him on the basis of race and/or national origin. Thus, at the summary judgment stage, Wal-Mart could prevail only if Rodrguez failed to adduce sufficient evidence from which a rational fact-finder could conclude that he was demoted because he is Puerto Rican. See Shorette, 155 F.3d at 12. Put another way, Rodrguez cannot avert summary judgment if the record is devoid of adequate direct or circumstantial evidence of intentional racial, ethnic, or national origin discrimination on the part of Wal-Mart. On appeal, Rodrguez contends that he did adduce adequate evidence to generate a trialworthy issue as to whether Wal-Mart discriminated against him in violation of Title VII. In the alternative, Rodrguez argues that the district judge abused his discretion in denying his post-judgment request for additional time to conduct discovery in order to properly oppose Wal-Mart's motion for summary judgment. We disagree on both counts. A. Summary Judgment For present purposes, we assume arguendo that Rodrguez carried his initial burden of establishing a prima facie case. Further, it is clear that Wal-Mart satisfied its limited burden of production by articulating a legitimate, non-discriminatory reason for demoting Rodrguez: namely, his unsatisfactory performance. Thus, we focus on the ultimate issue: whether Rodrguez adduced sufficient evidence from which a rational factfinder could have inferred both that Wal-Mart's articulated reason was a pretext, and that its true reason for demoting Rodrguez was racial, ethnic, or national origin discrimination. See Shorette, 155 F.3d at 15. To prove that Wal-Mart's proffered reason for demoting him was merely pretextual, Rodrguez points to two previous performance evaluations in which he was rated as exceeding the company's expectations. Rodrguez argues that because the contents of his prior evaluations contradict Cahill's findings in the January 10 evaluation, Cahill's findings must be pretextual. The problem with this argument is that in relying on his past performance evaluations, Rodrguez fails to take into account the fact that he was working in different capacities at different stores, under different supervisors with different expectations. As a result, Cahill's evaluation is not necessarily inconsistent with Rodrguez's past positive reviews. As the district court noted, from this evidence "a reasonable juror could only infer . . . that Plaintiff at one time exceeded expectations . . . under the first district manager but that the later ratings by Cahill in late 1994 and early 1995 found Rodrguez's performance lacking." (1/9/98 Op. & Order at 20.) The fact that Cahill may have had different expectations for Rodrguez, even if those expectations were contrary to those of Rodrguez's prior supervisors, does not support a finding of pretext. See Orisek v. American Institute of Aeronautics & Astronautics, 938 F. Supp. 185, 191 (S.D.N.Y. 1996). In addition to his history of positive performance evaluations, Rodrguez offered comparative evidence of Wal-Mart's disparate treatment of non-Puerto Rican store managers. It is fundamental that "[a] claim of disparate treatment based on comparative evidence must rest on proof that the proposed analogue is similarly situated in all material respects." Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996). The comparison cases need not be perfect replicas. See Conward, 171 F.3d at 20. Rather, the test is whether a "prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated." Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989). Thus, in offering this comparative evidence, Rodrguez bears the burden of showing that the individuals with whom he seeks to be compared "have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). Rodrguez's evidence fails to satisfy this test. The comparative evidence submitted by Rodrguez consists of a performance evaluation of Russ Steiner, a non-Puerto Rican manager of the Hatillo Wal-Mart store. Rodrguez contends that he and Steiner were similarly situated to the extent that they were both managers of Wal-Mart stores, and their evaluations identify many of the same weaknesses and areas of improvement. Rodrguez argues that despite these similarities, Steiner received a rating of "met expectations," while Rodrguez was rated as below expectations. Rodrguez further argues that Steiner was never subjected to an opinion survey, and was not demoted. In making this comparison, however, Rodrguez fails to take into account the fact that Steiner's evaluation was performed by a different supervisor, covered a different period of time, and related to a different store. Because Rodrguez's and Steiner's evaluations differ in these material respects, their comparison fails to support a finding that Wal-Mart acted inconsistently in its treatment of them. In short, we agree with the district court that a comparison of these evaluations yields no evidence of discrimination, but rather evidence of different opinions by different evaluators under different circumstances. Rodrguez next contends that he was subjected to disparate treatment by Wal-Mart to the extent that he was held accountable for the results of an opinion survey, while no other non-Puerto Rican managers were subject to such an evaluation procedure. Rodrguez has presented no evidence to support this claim. However, even assuming arguendo that Rodrguez was in fact the only manager subjected to an opinion survey, this is not sufficient to prove intentional racial or national origin discrimination on the part of Wal-Mart. While this may prove disparate treatment, there is simply no evidence that such treatment was on account of Rodrguez's status as a Puerto Rican. Absent such evidence, Rodrguez cannot avert summary judgment. The same problem undermines Rodrguez's claim that the timing of his evaluations by Cahill raises a "serious inference of suspicious motives." (Pl.'s Resp. to Def.'s Dispositive Mot. at 15.) Cahill's initial November 17, 1994 evaluation was rendered only eight months after Rodrguez started as manager of the Fajardo store, and four months prior to his anniversary date of March 1995. Rodrguez points to Wal-Mart's Associate Handbook as evidence that it was Wal-Mart's standard operating procedure to evaluate its associates annually, on or near the associate's anniversary date. Rodrguez contends that Wal-Mart's deviation from this standard operating procedure is evidence that Wal-Mart's proffered reasons for demoting him were mere pretexts for discrimination. Again, we disagree. As this court has previously explained, "[c]ourts may not sit as super personnel departments, assessing the merits -- or even the rationality of employers' nondiscriminatory business decisions." Mesnick, 950 F.2d at 825. Although the evaluation process may not have treated Rodrguez fairly, there is simply no evidence that Wal-Mart's hasty evaluation was a pretext for unlawful discrimination. In sum, Rodrguez has presented evidence that the reasons proffered by Wal-Mart for his demotion may have been inaccurate. He has also presented evidence that he may have been treated differently from other Wal-Mart managers to the extent that he was subjected to an opinion survey. But the fatal weakness in Rodrguez's case is his failure to present any evidence that Wal- Mart's actions were predicated on the basis of race or national origin. Unfortunately for Rodrguez, Title VII does not stop a company from demoting an employee for any reason -- fair or unfair -- so long as the decision to demote does not stem from a protected characteristic, here, race or ethnicity. See Mesnick, 950 F.2d at 825. Based on our careful review of the record, we agree with the district court that Rodrguez failed to present sufficient evidence with respect to the ultimate issue in this case: whether Wal-Mart's proffered reason for demoting him was actually a pretext for unlawful discrimination. B. Rule 56(f) After the district court's grant of summary judgment, Rodrguez filed a motion requesting a continuance in order to conduct further discovery pursuant to Fed. R. Civ. P. 56(f). The gist of Rodrguez's argument is that he was misled by the district court into believing that the only issue to be resolved by summary judgment was the legal issue of whether 1981 was intended to protect Puerto Ricans working in Puerto Rico. As a result, Rodrguez claims that his pre-judgment discovery efforts and the evidence he submitted in opposition to Wal-Mart's motion were limited to that specific legal issue. In light of the district court's unexpected ruling on the merits, Rodrguez argues that the court's denial of his Rule 56(f) motion for a continuance constituted an abuse of discretion. "It is well settled that the trial judge has broad discretion in ruling on pre-trial management matters." Ayala- Gerena, 95 F.3d at 91. An appellate court will intervene in such matters "only upon a clear showing of manifest injustice, that is, where the lower court's discovery order was plainly wrong and resulted in substantial prejudice to the aggrieved party." Id. (quoting Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179, 186 (1st Cir. 1989)). After careful review of the record, we conclude that the district court acted within its discretion in denying Rodrguez's post-judgment motion for a continuance. Although we agree that the district court did not act in accordance with its own instructions and orders, we do not agree that the court's inconsistency resulted in "substantial prejudice" to Rodrguez. Rodrguez's contention that he limited his discovery efforts and legal arguments to the specific legal issue of whether Puerto Ricans working in Puerto Rico are protected by 1981 is disingenuous. It is clear from our review of the record that, like the district court itself, both parties disregarded the court's limiting order. In its motion to dismiss, Wal-Mart never even addressed the issue of whether 1981 protected Puerto Ricans working in Puerto Rico, but rather directly challenged the merits of Rodrguez's claim. Similarly, each of Rodrguez's three oppositions marshaled factual evidence in support of his Title VII claim. In short, both parties blatantly disregarded the court's categorization of the issue and briefed all three stages of a 1981 claim under the McDonnell-Douglas framework. In order to "savor the balm" of Rule 56(f), a party must move for a discovery continuance in a timely fashion. Massachusetts Sch. of Law at Andover, Inc. v. American Bar. Assoc., 142 F.3d 26, 44 (1st Cir. 1998). Although Rodrguez requested time for additional discovery as early as his initial opposition, he never claimed an inability to avert "the swing of the summary judgment axe." Paterson-Leitch Co. v. Mass. Municipal Wholesale Elec. Co., 840 F.2d 985, 989 (1st Cir. 1988). Instead, Rodrguez continually maintained that he had provided sufficient evidence to raise the specter of intentional racial and/or ethnic discrimination and withstand summary judgment on all grounds argued by Wal-Mart. Even Rodrguez's Rule 56(f) motion requested, in the alternative, that judgment be vacated on the ground that he had adduced sufficient evidence to preclude summary disposition of his claim. In this respect, Rodrguez's position is similar to that of the Title VII plaintiffs in Ayala-Gerena, who did not claim that they were unable to oppose summary judgment because of incomplete discovery, but rather, maintained that "although incomplete . . . [these records] clearly reveal discriminatory animus." Ayala- Gerena, 95 F.3d at 92 n.4. Ordinarily, a party "may not attempt to meet a summary judgment challenge head-on but fall back on Rule 56(f) if its first effort is unsuccessful." C.B. Trucking, Inc. v. Waste Management, Inc., 137 F.3d 41, 44 (1st Cir. 1998). In addition, Rodrguez never sufficiently identified the outstanding discovery that he believed would influence the outcome of the summary judgment motion. See Resolution Trust Co. v. North Bridge Assoc., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994) (Rule 56(f) motion "should set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist; and it should indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion."). In his third supplemental motion in opposition to summary judgment, Rodrguez merely stated that he was "unable to provide in this Motion the additional evidence he anticipated," (Pl.'s Supp. Mot. to His Opp. to Summ. Disposition at 2), without specifying what that additional evidence was or how it might affect the pending motion. Finally, we agree with the district court that Rodrguez had adequate time to conduct discovery, or at least to marshal enough evidence to properly support a Rule 56(f) request for a continuance. Even assuming that Rodrguez did not initiate the discovery process until the district court's April 30 discovery order, almost nine months elapsed until judgment was granted on January 13, 1998. During this time, Rodrguez never requested concrete measures by the district court to intervene in discovery. As a result, we conclude that the district court acted within its discretion in denying Rodrguez's Rule 56(f) motion for a continuance to conduct further discovery. CONCLUSION For the above reasons, we affirm the district court's grant of summary judgment in favor of defendant-appellee Wal-Mart. </pre>

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