Ortiz-Rivera v. Astra Zeneca LP ( 2010 )


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  •                Not for Publication in West’s Federal Reporter
    United States Court of Appeals
    For the First Circuit
    ___________________
    No. 09-1453
    DORIS ORTIZ-RIVERA,
    Plaintiff, Appellant,
    v.
    ASTRA ZENECA LP,
    Defendant, Appellee,
    INSURANCE COMPANIES A, B, C;           JOHN DOES 1 THROUGH 3,
    Defendants.
    ___________________
    APPEAL FROM THE UNITED STATES DISTRICT
    COURT FOR THE DISTRICT OF PUERTO RICO
    [Hon. Francisco A. Besosa, U.S. District Judge]
    ___________________
    Before
    Lipez, Baldock, * and Howard, Circuit Judges.
    ___________________
    Jorge Miguel Carazo-Quetglas and Carazo-Quetglas Law
    Offices for appellant.
    Lourdes C. Hernandez-Venegas and Schuster Aguiló LLP for
    appellee.
    January 25, 2010
    *
    Of the Tenth Circuit, sitting by designation.
    BALDOCK, Circuit Judge.            Plaintiff Doris Ortiz-Rivera
    appeals from the district court’s grant of summary judgment
    for Defendant Astra Zeneca LP in her suit involving claims
    under the Age Discrimination in Employment Act (ADEA) and
    similar claims under Puerto Rico law.                  We have jurisdiction
    under 
    28 U.S.C. § 1291
     and affirm.
    “We    review     the   district     court’s      grant     of       summary
    judgment de novo, drawing all reasonable inferences in favor
    of   the    nonmoving     party.”       Sonoran        Scanners,        Inc.        v.
    Perkinelmer, Inc., 
    585 F.3d 535
    , 539–40 (1st Cir. 2009).
    Plaintiff     argues     the   district      court      erred     in    granting
    summary judgment on her ADEA claims.                   She then argues the
    district court erred in dismissing her claims under Puerto
    Rico law.     We address each argument in turn.
    The     parties    are    familiar      with      the    facts,        and     we
    therefore repeat them here only briefly.                 Plaintiff was born
    on January 17, 1966.           Defendant hired Plaintiff to be a
    pharmaceutical         sales   specialist         on    August         8,     2005.
    Supervisor Vanessa Gonzales (born August 15, 1970) and her
    supervisor,     Elsa    Saavedra    (born     November       3,   1957),          both
    participated     in     the    hiring   process.             Plaintiff’s           job
    involved     visiting     physicians        and    obtaining      orders           for
    Defendant’s       products.             After          observing            several
    inconsistencies         and     possible          misrepresentations                in
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    Plaintiff’s work and reports, Gonzales sought counsel from
    John    Kriegsmann          (born        September             27,     1943)     in      human
    resources.            He     recommended            that        Gonzales        conduct        a
    performance         review        of    Plaintiff.              Gonzales         discovered
    several      problems       that       caused      her    to    question       Plaintiff’s
    honesty.      Saavedra likewise reviewed Plaintiff’s performance
    and had similar concerns.                  On Kriegsmann’s recommendation,
    Gonzales and Saavedra met with Plaintiff to discuss these
    problems.           After        determining          that       her     responses          were
    unsatisfactory, they decided to terminate her on March 17,
    2006.        On   that     date,       Plaintiff         was    forty     years       and    two
    months old; Gonzales was thirty five years, seven months,
    and    two    days    old;       Saavedra       was      forty       eight     years,       four
    months, and fourteen days old; and Kriegsmann was sixty two
    years, five months, and twenty one days old.
    Plaintiffs making a case under the ADEA with indirect
    evidence may use the burden shifting analysis outlined in
    McDonnell         Douglas    Corp.       v.     Green,         
    411 U.S. 792
    ,    802–05
    (1973).      Torrech-Hernández v. General Electric Co., 
    519 F.3d 41
    ,    48    (1st    Cir.    2008).           In   analyzing           cases    under       this
    framework, we may put aside the question whether a plaintiff
    established a prima facie case of age discrimination under
    the ADEA and consider first whether “there is evidence that,
    notwithstanding            the     employer’s            stated        reasons     for       the
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    termination,       the       real    reason,        at     least     in    part,     was
    age . . . discrimination.”                  Hillstrom v. Best Western TLC
    Hotel, 
    354 F.3d 27
    , 31 (1st Cir. 2003); see also Rivera-
    Aponte v. Restaurant Metropol #3, Inc., 
    338 F.3d 9
    , 11 (1st
    Cir.    2003)     (assuming         arguendo      that        the   plaintiff      could
    establish    a    prima      facie    case     and       considering       whether    he
    could prove his employer had a discriminatory motive for
    discharging him).
    Defendant    presented         evidence       of       several     grounds    for
    terminating       Plaintiff.          First,      Plaintiff         received     a   law
    degree    but     did    not       include     it    on       her   resume      or   job
    application, even though she included a master’s degree in
    English linguistics.           Second, she misrepresented information
    on expense reports and failed to follow protocol when she
    claimed    expenses          for    ten    people        at    “lunch     and    learn”
    meetings though fewer than ten attended.                        Third, Plaintiff’s
    six-month performance review revealed multiple occasions on
    which she had reported several visits to doctors in a five
    to seven minute period, and her supervisors considered this
    to be insufficient time to make a proper call.                            Fourth, the
    review showed Plaintiff often failed to work the required
    seven and a half hours each day.                    Fifth, Plaintiff violated
    company    policy       by   using     “mass      assignments”          (cutting     and
    pasting     one     report          into     others        instead        of    writing
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    individualized reports for each call).               Defendant argues any
    one of these instances is grounds for termination, and all
    of   them   raised   serious   doubts      about    Plaintiff’s    honesty.
    Defendant     thus     satisfied    its    burden     of    production     by
    articulating “‘a legitimate, nondiscriminatory basis for its
    adverse employment action.’” Torrech-Hernández, 
    519 F.3d at 48
     (quoting Hoffman v. Applicators Sales & Serv., Inc., 
    439 F.3d 9
    , 17 (1st Cir. 2006)).
    To    demonstrate    pretext,       Plaintiff       relies   on    four
    allegedly     ageist    remarks.     First,        when   she   traveled   to
    supervisor Vanessa Gonzales’s house to pick up materials for
    work, she informed Gonzales that she was suffering from a
    medical condition.        Gonzales told her to visit a doctor and
    said “those things come with age.”             Second, during a break
    at a work meeting, a coworker was selling bikinis.                       When
    Plaintiff asked whether there was one for her, Gonzales said
    she was “too old for one.”           Third, when Gonzales met with
    Plaintiff to discuss the improper expense reports, she told
    Plaintiff “you are too old, Doris.                  You are too old for
    this.      You are too old to be making these mistakes.                  This
    is unacceptable.”       Fourth, when Gonzales and her supervisor,
    Elsa Saavedra, met with Plaintiff to discuss concerns about
    her performance and dishonesty, they told her she “was old
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    enough     to    know     what        it    means     to     lie       and    to    omit”
    information.
    As the district court noted in its thorough and well-
    reasoned order, “‘stray workplace remarks’ . . . normally
    are    insufficient,       standing           alone,        to    establish        either
    pretext or the requisite discriminatory animus.”                               Gonzalez
    v. El Dia, Inc., 
    304 F.3d 63
    , 69 (1st Cir. 2002).                             The first
    two remarks, concerning a medical problem and bikinis, were
    rude     but     not    related        to     the     decision          to    terminate
    Plaintiff’s employment.                In Straughn v. Delta Air Lines,
    Inc., 
    250 F.3d 23
    , 36 (1st Cir. 2001), we said:                               “[T]hough
    such ‘stray remarks’ may be material to the pretext inquiry,
    ‘their    probativeness          is    circumscribed             if    they   were    not
    related to the employment decision in question . . . .’”
    (quoting       McMillan    v.    Massachussetts              Soc’y      for   Prev.    of
    Cruelty to Animals, 
    140 F.3d 288
    , 301 (1st Cir. 1998)).                                On
    the facts of this case, Gonzales’s stray remarks concerning
    a     medical    problem        and        bikinis     are       not    significantly
    probative of pretext.             
    Id.
             “Although statements directly
    related to the challenged employment action may be highly
    probative in the pretext inquiry, mere generalized ‘stray
    remarks,’       arguably   probative          of     bias    against      a   protected
    class, normally are not probative of pretext absent some
    discernible evidentiary basis for assessing their temporal
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    and contextual relevance.”                
    Id.
       Taken in the light most
    favorable to Plaintiff, the second two statements are, at
    best, ambiguous.           Though made by supervisors close to the
    time   of   Plaintiff’s         termination,    they     arguably       reflect   a
    belief that positive attributes such as honesty and accuracy
    come with age.       Both could be expressions of confusion about
    Plaintiff’s actions, admonishments to act responsibly, or
    remarks     indicating       animus.      Because    these   statements       are
    ambiguous,        they    are    insufficient       to    prove     Defendant’s
    discriminatory intent.            See Lehman v. Prudential Ins. Co. of
    Am., 
    74 F.3d 323
    , 329 (1st Cir. 1996) (“Isolated, ambiguous
    remarks      are     insufficient,         by   themselves,          to     prove
    discriminatory           intent.”).         Additionally,         the     context
    provides no additional evidence of discriminatory intent:
    Two    of   the    same    supervisors      participated      in    hiring    and
    firing Plaintiff; those supervisors provided several valid
    concerns about Plaintiff’s honesty; and two of the three
    people who participated in the decision to fire Plaintiff
    are more than five years her senior.                     Therefore, we agree
    with the district court that Plaintiff failed to provide
    sufficient        evidence      that   Defendant’s       stated    reasons    for
    terminating her were pretextual.
    Plaintiff also argues the district court should not have
    dismissed     her    claims       under   Puerto    Rico     law.        While    a
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    district court may exercise supplemental jurisdiction over
    nonfederal   law    claims,     the     court      may    also   “decline   to
    exercise supplemental jurisdiction over a claim . . . if the
    district court has dismissed all claims over which it has
    original jurisdiction.”          
    28 U.S.C. § 1367
    .               See Marrero-
    Gutierrez v. Molina, 
    491 F.3d 1
    , 7 (1st Cir. 2007).                    Because
    the   district    court   properly      dismissed        Plaintiff’s    claims
    under   federal    law,   it   did    not    err   in    dismissing    without
    prejudice her claims under Puerto Rico law as well.
    AFFIRMED.
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