Puig Martinez v. Novo Nordisk Inc. ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-1928
WILLIAM PUIG MARTÍNEZ; MERALYS COLÓN; HERNAN MÉNDEZ NAZARIO;
CONJUGAL PARTNERSHIP MÉNDEZ-COLÓN,
Plaintiffs, Appellants,
v.
NOVO NORDISK INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., Chief U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta, Circuit Judge,
Casper, District Judge.
Mónica Vega Quintana, with whom Mónica Vega Quintana Law
Office, Rubén T. Nigaglioni, and Nigaglioni Law Office, P.S.C.,
were on brief, for appellants.
Melissa C. Rodriguez, with whom William R. Peterson, Mary
Grace Patterson, and Morgan, Lewis & Bockius LLP were on brief,
for appellee.

Of the District of Massachusetts, sitting by designation.
March 29, 2021
KAYATTA, Circuit Judge. Plaintiffs William Puig
Martínez and Hernan Méndez Nazario are former employees of Novo
Nordisk Inc. During a global reorganization, Novo Nordisk
terminated plaintiffs from their Puerto Rico-based jobs and did
not select them for post-reorganization positions. Plaintiffs
contend that their termination and non-selection violated Puerto
Rico's statutes prohibiting age discrimination in employment, Act
No. 100 of June 30, 1959, P.R. Laws Ann. tit. 29, §§ 146–51
("Law 100"), and penalizing termination without just cause, Act
No. 80 of May 30, 1976, P.R. Laws Ann. tit. 29, §§ 185a–185m
("Law 80"). The district court disagreed and granted summary
judgment in favor of Novo Nordisk. For the reasons that follow,
we affirm.
I.
We refer to the undisputed material facts set out in the
district court's summary judgment decision. See Martínez v. Novo
Nordisk, 397 F. Supp. 3d 207 (D.P.R. 2019). Novo Nordisk is a
healthcare company specializing in diabetes care that operates in
several countries. Id. at 215. In April 2007, Novo Nordisk hired
Puig and Méndez as salespeople (also called Diabetes Care
Specialist IIIs or DCS IIIs) in its Puerto Rico district. Id. In
September 2016, the Puerto Rico district had a sales staff of
fourteen DCS IIIs, including plaintiffs. Id.- 3 -
To cut costs, Novo Nordisk undertook a global
reorganization that ultimately resulted in the termination of
about one thousand employees during the fall of 2016. See id. By
the reorganization's end, Novo Nordisk had (1) eliminated the
Puerto Rico district and all fourteen of its DCS positions; and
(2) created three new DCS positions that would handle all Puerto
Rico sales and report to Novo Nordisk's "South Miami Florida
district." Id.On October 3, 2016, Novo Nordisk distributed a list of
responses to "Frequently Asked Questions" about the
reorganization. See id. The FAQs advised that Novo Nordisk's
workforce would shrink by about one thousand employees worldwide
and that Novo Nordisk planned "to do notifications by the end of
October" to inform employees whether they "ha[d] a job." The FAQs
also stated that "[a]ffected employees" could apply for open
positions at the company and would "receive a list of available
opportunities when notified and instructions on how to apply, if
interested."
On October 24, 2016, Novo Nordisk sent letters informing
Puig, Méndez, and the other salespeople in the Puerto Rico district
that their "department has decided to eliminate [their]
position[s] and, therefore, [their] employment will end effective
November 18, 2016." Id. at 216. The termination letters stated
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that Novo Nordisk would pay severance in accordance with Law 80,
if applicable. Id. at 216.
The letters also noted that "[a]s a result of the
consolidations and restructurings that took place, there are open
positions throughout the organization," and the letters "strongly
encourage[d]" terminated employees, including plaintiffs, "to
apply for any open positions for which [they were] qualified" by
October 27. The open positions included the three Puerto Rico-
based DCS positions that would report to the "South Miami Florida
district." Id. at 215. According to Novo Nordisk, successful
candidates would have "proven leadership and decision-making
abilit[ies]"; "be [] self-starter[s]"; and "be able to evaluate
options and make decisions on [their] own with minimal
supervision." Id. (last alteration in original).
Nelson Almérico and John Thrasher conducted the
interviews for the post-reorganization DCS positions covering
Puerto Rico. Id. After interviewing Puig (age fifty-seven) and
Méndez (age forty-eight) on November 1 and 2, respectively, the
interviewers assigned each one a rating of "Meets Expectations."
Id. at 215–16. Almérico and Thrasher opined that Puig had
significant experience but lacked "a high enough level of probing
and engaging skills" and did not present "as strong a plan as
others." Id. at 216. And the interviewers noted that Méndez had
"[g]reat collaboration [skills]" and "[a]ppeared coachable," but
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that he was "[n]ot a strong closer," and that he was not able to
provide examples of how he would adapt to the changing market.
Id. at 216 (alterations in original). The three candidates
ultimately selected -- Jose Velázquez Faccio (age forty-three),
Jose Cruzado (age forty-seven), and Carmen Irizarry (age forty-
seven) -- received "Exceeds Expectations" ratings.
On or about November 18, 2016, Novo Nordisk sent letters
to plaintiffs confirming their separation from the company. See
id. at 216. Each letter enclosed a "Confidential Agreement,
Release and Waiver," which, if signed, would entitle plaintiffs to
certain enumerated benefits. But the letters pledged that Novo
Nordisk would pay plaintiffs "severance in accordance with Law 80"
in an amount specified in an attached exhibit regardless of whether
they signed the document. Id. True to its word, Novo Nordisk
paid $82,137.27 to Puig and $67,845.96 to Méndez. See id. at 217.
Plaintiffs filed this action alleging (i) discrimination
in violation of the Age Discrimination in Employment Act (ADEA),
29 U.S.C. §§ 621–634; (ii) unlawful cancellation of benefits in
violation of the Consolidated Omnibus Budget Reconciliation Act
(COBRA), 29 U.S.C. §§ 1161–1169; (iii) age discrimination in
violation of Law 100; (iv) unjust dismissal in violation of
Law 80; and (v) a derivative claim by Méndez's spouse, Meralys
Colón, under Puerto Rico's general tort statute, Article 1802 of
the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141. The
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district court granted summary judgment in Novo Nordisk's favor on
all of plaintiffs' claims. Plaintiffs appealed.
II.
We review a district court's grant of summary judgment
de novo, viewing the record in the light most favorable to the
nonmovants and drawing all reasonable inferences in their favor.
Rodríguez-Cardi v. MMM Holdings, Inc., 936 F.3d 40, 46 (1st Cir.
2019). Summary judgment is appropriate where "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).
Plaintiffs do not contend that the district court
improperly granted summary judgment on their ADEA and COBRA claims,
so we do not review those rulings. Nor do we have reason to
analyze separately Meralys Colón's derivative claim for tort
damages because, as plaintiffs acknowledge, it depends entirely on
the success of her spouse's claims. See Ramos-Santiago v. WHM
Carib, LLC, 919 F.3d 66, 69 n.2 (1st Cir. 2019). Rather,
plaintiffs train their challenge on the district court's grant of
summary judgment in Novo Nordisk's favor on plaintiffs' Puerto
Rico law claims under Law 100 and Law 80. We address each claim
in turn.
A.
Law 100 provides a cause of action for persons who suffer
employment discrimination due to their age. Ramos-Santiago, 919
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F.3d at 72. Law 100's protections against age discrimination are
"coterminous" with the ADEA's protections, but call for an
idiosyncratic burden-shifting scheme to analyze discrimination
claims. See Dávila v. Corporación de P.R. para la Difusión
Pública, 498 F.3d 9, 18 (1st Cir. 2007). In the district court
and on appeal, plaintiffs devote considerable effort to
establishing that the burden of proof settled on Novo Nordisk. We
sidestep that issue entirely by assuming without deciding that
Novo Nordisk bore the burden of proving that plaintiffs' discharge
was not the result of age discrimination. The pivotal question
then becomes whether the record would preclude any reasonable jury
from finding that Novo Nordisk failed to carry this burden by
showing that age discrimination was not the reason for plaintiffs'
discharge. See Cardona-Jimenez v. Bancomercio de P.R., 174 F.3d
36, 43 (1st Cir. 1999) (requiring judgment in favor of employer
who was assumed to bear the burden of proof because no reasonable
jury could have found that plaintiff was dismissed on account of
age). For the following reasons, we agree with Novo Nordisk that
the record is devoid of evidence that would allow a reasonable
jury to find in favor of plaintiffs, no matter who bears the burden
of proof.
As to Méndez, the discrimination claim defeats itself
when stated in concrete terms; i.e., the interviewers selected
forty-seven-year-old candidates for two of the three positions
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instead of the forty-eight-year-old Méndez because of his age.
This is simply not a scenario that invites even speculation of age
discrimination. See O'Connor v. Consol. Coin Caterers Corp., 517
U.S. 308, 313 (1996) (explaining that an inference of age bias
"cannot be drawn from the replacement of one worker with another
worker insignificantly younger").
The fifty-seven-year-old Puig, by contrast, can at least
say he was significantly older than the chosen candidates. But
there is no evidence to support his claim that he was not given a
fair shot because of his age.
Puig argues that the interviewers -- Thrasher and
Almérico -- displayed age-based animus by saying that the ideal
candidate would have "energy," be "dynamic," and possess
"stamina." We can certainly imagine a context in which such
comments might suggest age-based bias. Here, though, the comments
were voiced in the context of discussing three positions that would
be responsible for a sales territory previously covered by fourteen
people. So it was accurate and relevant to describe the new
positions as more demanding. Moreover, the interviewers said
nothing to suggest that they thought Puig lacked such attributes.
Rather, they cited the relative weakness of his "plan" and his
lower "level of probing and engaging skills" compared to other
candidates. Martínez, 397 F. Supp. 3d at 216. In a context like
this one, jurors could not find age discrimination based on the
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challenged remarks. See Woodward v. Emulex Corp., 714 F.3d 632,
640 (1st Cir. 2013) (applying Massachusetts law and holding that
comment regarding need to re-energize sales team did not create
triable issue as to age-based animus); Torrech-Hernandez v. Gen.
Elec. Co., 519 F.3d 41, 54 (1st Cir. 2008) ("It is well-established
that 'energy,' as well as similarly defined terms, does not
necessarily connote youth or other age-related characteristics.").
Puig next argues that his interview on November 1, 2016,
was a pretext for discrimination because the company had already
decided whom to hire. To support this claim, Puig points primarily
to an attachment to the letter sent to him on November 18, 2016.
It states:
The attached Exhibit B-1 lists the positions
and ages of all active U.S. employees in the
decisional unit who on or around October 24,
2016 (i) were selected for termination and are
eligible for separation pay and benefits as a
result of the decisions made with respect to
this decisional unit; (ii) were not selected
for termination and are not eligible for
separation pay and benefits as a result of the
decisions made with respect to this decisional
unit; and (iii) who were selected for
termination, but were offered and accepted
another position with the company.
Puig would have us read the foregoing so that the phrase
"who on or around October 24, 2016," carries over to each of the
three following numbered clauses, particularly clause (iii), and
thus suggests that the new positions were filled "on or around
October 24." But clause (iii), unlike clauses (i) and (ii), has
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its own "who," without the date qualifier. So, the language, while
certainly ungrammatical, tilts against Puig's proffered reading.
Even if we treated the "who" in clause (iii) as surplusage,
evidence in the record indicates that "on or around October 24,
2016," would not carry over to every part of clause (iii). Rather,
clause (iii) is sensibly read as a past-tense description of the
course of events predicted in the FAQs; i.e., on October 24, 2016,
employees were notified about whether they "ha[d] a job," affected
employees "receive[d] a list of available opportunities when
notified," and Novo Nordisk later chose applicants to fill the
available positions. Moreover, any arguable ambiguity created by
the sentence's awkward syntax is belied by language elsewhere in
the attachment that lists employees who "accepted new position[s]
in the Company as of November 15, 2016."
Puig also argues that other interviewees made statements
indicating that some interviewees knew before the interview
process ended whether they would be selected and that plaintiffs
"believed" some knew the results before the process ended. But
statements by nonparties about what other nonparties said or
thought cannot suffice to create a genuine dispute of material
fact (at least absent a showing that the statements can "be
presented in a form that would be admissible in evidence," Fed. R.
Civ. P. 56(c)(2)). See Soto-Padró v. Pub. Bldgs. Auth., 675 F.3d
1, 7 (1st Cir. 2012) (citing Dávila, 498 F.3d at 17) (noting that
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deponent's testimony about comparator employee's statements was
inadmissible hearsay); Garside v. Osco Drug, Inc., 895 F.2d 46, 50
(1st Cir. 1990) ("Hearsay evidence, inadmissible at trial, cannot
be considered on a motion for summary judgment."). Nor do
plaintiffs' own beliefs and impressions suffice. See Pina v.
Children's Place, 740 F.3d 785, 796 (1st Cir. 2014) (explaining
that a party opposing summary judgment "cannot rely 'merely upon
conclusory allegations, improbable inferences, and unsupported
speculation'" (quoting Dennis v. Osram Sylvania, Inc., 549 F.3d
851, 855–56 (1st Cir. 2008))).
Finally, Puig criticizes the interviewers' evaluation
criteria. In his view, Novo Nordisk did not adequately consider
experience, past performance (including sales and disciplinary
records), prior training, or advanced degree possession (a
preference expressed in the job posting). Puig would have been
chosen for the job, he argues, had Novo Nordisk used a better
rubric or given more weight to these factors. These complaints
amount to little more than second-guessing Novo Nordisk's facially
valid evaluation criteria and conclusions, and such arguments do
not provide any basis to conclude that age -- not interview
performance -- motivated Puig's non-selection. See 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
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even the rationality -- of employers' nondiscriminatory business
decisions.").
In sum, we affirm the grant of summary judgment on
plaintiffs' Law 100 claims because there is no evidence from which
a reasonable jury could reject Novo Nordisk's showing that it did
not discriminate against plaintiffs based on their age.1
B.
We turn next to plaintiffs' Law 80 claims.2 Law 80
requires an employer who terminates an employee without just cause
to pay severance (known as a "mesada") to the dismissed employee.
See Otero-Burgos v. Inter Am. Univ., 558 F.3d 1, 7 (1st Cir. 2009).
An employer seeking to discharge an employee must comply with
certain requirements to avoid this penalty. Law 80 "provides six
examples of just cause, including three that relate to company
restructuring or downsizing." Carrasquillo-Ortiz v. Am. Airlines,
Inc., 812 F.3d 195, 196 (1st Cir. 2016) (citing P.R. Laws Ann.
tit. 29, § 185b(d), (e), (f)). An employer citing a restructuring
or downsizing reason as just cause "must give preference to those
employees with greater seniority over those with less seniority
1 Even if Méndez's Law 100 claim had made it out of the gate,
it would fail for the same reasons that Puig's claim fails.
2 We refer to the version of Law 80 in force prior to its
amendment in 2017. See P.R. Laws Ann. tit. 29, §§ 185a–185n (added
on Jan. 26, 2017, No. 4); López-Santos v. Metro. Sec. Servs., 967
F.3d 7, 11 n.3 (1st Cir. 2020).
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within the same occupational classification." Id. (citing P.R.
Laws Ann. tit. 29, § 185c). Subject to exceptions, an employer
who "terminates a more senior employee and retains a less senior
employee within the same occupational classification . . . must
pay the terminated employee a mesada." Id. (citing P.R. Laws Ann.
tit. 29, § 185c). So, to terminate an employee without paying a
mesada, an employer must comply with section 185b and, if
applicable, section 185c.
Section 185a of Law 80 provides the formula for
calculating the mesada. An employee terminated without just cause
after working for an employer for more than five years but fewer
than fifteen is entitled to the sum of
(a) . . . the salary corresponding to three
(3) months if discharged after five
years (5) . . . of service . . . [; and]
(b) An additional progressive compensation
equal . . . to two (2) weeks for each year of
service, if discharged after five (5) years
and up to fifteen (15) years of
service . . . .
P.R. Laws Ann. tit 29, § 185a. Because severance is the exclusive
remedy for a Law 80 violation, "an employer willing to pay the
price is free to discharge whomever he or she pleases." Rodriguez
v. E. Air Lines, Inc., 816 F.2d 24, 28 (1st Cir. 1987); Soto v.
State Indus. Prods., Inc., 642 F.3d 67, 75 (1st Cir. 2011).
The district court bypassed an analysis of whether Novo
Nordisk satisfied sections 185b and 185c, focusing instead on
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whether plaintiffs had already received all compensation due under
section 185a. The district court concluded that neither plaintiff
presented evidence to show that Novo Nordisk had not already
satisfied any Law 80 obligation. Martínez, 397 F. Supp. 3d at
223.
A review of plaintiffs' arguments on appeal and the
summary judgment record leads us to the same conclusion.3
Plaintiffs give no cogent explanation as to why Novo Nordisk's
payments fell short. Even on appeal, plaintiffs simply assert in
conclusory fashion that proper compensation for Puig "would have
amounted to a larger payment and not the payment of $82,127.37
made by Novo Nordisk." Plaintiffs' brief does identify the amount
Méndez seeks -- $85,880.85, rather than $67,845.96 -- but fails to
explain why this sum is correct. Although plaintiffs' brief
describes benefits that Méndez received in addition to cash
compensation, such as employer-sponsored health coverage and
employer-provided 401(k) matching contributions, the brief
provides no authority to show that these benefits are part of his
section 185a "salary." Plaintiffs' brief also refers to a
Christmas bonus that Méndez received and paid vacation days that
Méndez did not use, but the brief does not point to any record
3This review included the portions of the record referred
to in the letter that plaintiffs filed with the court pursuant to
Federal Rule of Appellate Procedure 28(j).
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evidence regarding his bonus or unused vacation. Plaintiffs have
thus waived any appeal concerning their Law 80 claims. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Finally, the denial of Novo Nordisk's motion to dismiss
plaintiffs' Law 80 claims did not preclude Novo Nordisk from
obtaining summary judgment here. This case is one of many
illustrating that a plaintiff who puts forward plausible
allegations at the motion to dismiss stage may later fail to
present evidence showing the existence of a triable issue of fact
at summary judgment. Simply put, motions under Rules 12(b)(6)
and 56 present a plaintiff with different hurdles, the latter of
which looms larger than the former. See Ellis v. Fid. Mgmt. Tr.
Co., 883 F.3d 1, 7 (1st Cir. 2018) (noting that reasonable
inferences at the pleading stage may become unreasonable in light
of summary judgment record); Aldridge v. A.T. Cross Corp., 284
F.3d 72, 85 (1st Cir. 2002) (reversing dismissal of claims but
cautioning that "[n]othing in this opinion, of course, predicts
any outcome if a postdiscovery summary judgment motion is filed");
see also Ríos-Campbell v. U.S. Dep't of Com., 927 F.3d 21, 24–25
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(1st Cir. 2019) (contrasting Rule 12(b)(6)'s plausibility standard
with the Rule 56 standard).4
III.
For the foregoing reasons, we affirm the district
court's grant of summary judgment in Novo Nordisk's favor.
4 Because Puig's Law 100 and Law 80 claims fail on the
merits, we do not address Novo Nordisk's alternative argument that
judicial estoppel precludes Puig from pursuing them.
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