DocketNumber： 95-2055
Filed Date： 4/25/1996
Status： Precedential
Modified Date： 9/21/2015
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2055
MARIA DE LOS A. PAGES-CAHUE,
MARIA PILAR LOPEZ, AND
GILBERTO IZQUIERDO-SANTIAGO,
Plaintiffs - Appellants,
v.
IBERIA LINEAS AEREAS DE ESPA A,
Defendant - Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge] _____________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
_____________________
Enrique J. Mendoza-M ndez, with whom Mendoza & Bac , ___________________________ ________________
Francisco M. Troncoso and Troncoso & Becker were on brief for _____________________ __________________
appellants.
James D. Noel III, with whom Ledesma, Palou & Miranda was on _________________ ________________________
brief for appellee.
____________________
April 25, 1996
____________________
TORRUELLA, Chief Judge. Plaintiffs-Appellants Mar a de TORRUELLA, Chief Judge. ___________
los A. Pages-Cahue ("Pages"), Mar a Pilar L pez ("L pez"), and
Gilberto Izquierdo-Santiago ("Izquierdo") (collectively,
"Appellants") appeal the district court's grant of summary
judgment to Appellee Iberia L neas A reas de Espa a ("Iberia") on
claims of age discrimination under the Age Discrimination in
Employment Act of 1967, as amended ("the ADEA"), 29 U.S.C. 621 et __
seq. Pages also seeks appeal of the district court's grant of ___
summary judgment to Iberia on her claim under Puerto Rico Law No.
80, 29 L.P.R.A. 185a et seq.1 L pez appeals the district ______
court's grant of summary judgment to Iberia on her claim for an
____________________
1 Appellants' brief only attempts to raise an argument under
Puerto Rico Law No. 80 with respect to Pages. The brief makes a
reference to Law No. 80, suggesting implications for L pez' ADEA
claim, but does not actually include an argument for a claim
under Puerto Rico Law No. 80. Therefore, L pez and Izquierdo
have waived any issues regarding the district court's grant of
summary judgment on their Law No. 80 claims. See Frazier v. ___ _______
Bailey, 957 F.2d 920, 932 n.4 (1st Cir. 1992) (noting that "[a] ______
state law claim which is not addressed in a brief is waived").
Pages' Law No. 80 claim, however, has not been waived.
Similarly, appellants have not included any argument regarding
Puerto Rico Law No. 100 beyond a passing reference under Pages'
Puerto Rico Law No. 80 claim. As a result, appellants have also
waived any issues regarding the district court's grant of summary
judgment on their Law No. 100 claims. Id. ___
While appellants' counsel asserted at oral argument that we
should not find these arguments waived because the facts
necessary to them were argued in the context of their appellate
brief's ADEA argument, we must disagree. In the absence of any
discussion beyond citations to these Puerto Rico statutes, and in
the absence of any submitted argument, we conclude that these
arguments are waived. See United States v. Zannino, 895 F.2d 1, ___ _____________ _______
17 (1st Cir. 1990) ("Judges are not expected to be mindreaders.
Consequently, a litigant has an obligation 'to spell out its
arguments squarely and distinctly,' or else forever hold its
peace.") (quoting Rivera-G mez v. de Castro, 843 F.2d 631, 635 ____________ _________
(1st Cir. 1988)).
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unpaid balance of sick leave and overtime compensation due under
Puerto Rico Law No. 379 of May 15, 1948, as amended, 29 L.P.R.A.
271 et seq., ("Law 379" or "Puerto Rico Overtime Compensation _______
Act"), and Puerto Rico Law No. 96 of June 26, 1959, as amended,
29 Laws of P.R. Anno. 246 et seq. ("Law 96"). We affirm. ______
I. BACKGROUND I. BACKGROUND
The following facts are not in dispute. In 1992,
Iberia's net loss for its San Juan operations was $14,305,504.
For the seven prior years, plus the year 1992, Iberia's net loss
in San Juan was $136,795,292. Beginning in the year 1991, Iberia
implemented a worldwide reorganization of its operations,
including substantial cutbacks in Puerto Rico. During the time
period from May 1991 to November 1992, 14 of Iberia's 32
employees in Puerto Rico were laid off or otherwise ceased to
work for Iberia. On September 30, 1992, the three appellants in
this case were discharged.
This appeal also contains several disputed facts.
Because we must determine whether the disputes of fact are both
genuine and material, we discuss these disputed facts in the
course of our discussion of the law.
II. STANDARD OF REVIEW II. STANDARD OF REVIEW
We examine a grant of summary judgment de novo, viewing _______
the evidence, and all reasonable inferences therefrom, in the
light most favorable to the party resisting summary judgment.
Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir. 1995); _______ _________________
see LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. ___ _______ ___________________
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1993), cert. denied, 114 S. Ct. 1398 (1994). Summary judgment is ____________
properly granted where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law. Fed. R. Civ. P. 56(c); see LeBlanc, 6 F.3d ___ _______
at 841; Goldman, 985 F.2d at 1116. _______
III. DISCUSSION III. DISCUSSION
A. The ADEA Claims A. The ADEA Claims
1. The Legal Framework 1. The Legal Framework
In ADEA discrimination lawsuits, plaintiffs bear the
ultimate burden of proving that their ages were the determinative
factor in their discharge, "that is, that [they] would not have
been fired but for [their] age." LeBlanc, 6 F.3d at 841; see _______ ___
Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991), _______ _________________
cert. denied, 504 U.S. 985 (1992). "At least where there is ____________
little overt evidence of age discrimination, the case usually
follows the ritualized burden-shifting paradigm" presented in
McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1973). __________________ _____
LeBlanc, 6 F.3d at 841. See, e.g., Goldman v. First Nat'l Bank _______ ___ ____ _______ _________________
of Boston, 985 F.2d 1113, 1117 (1st Cir. 1993); Lawrence v. __________ ________
Northrop Corp., 980 F.2d 66, 68 (1st Cir. 1992); Mesnick, 950 ______________ _______
F.2d at 823-24.
Under the McDonnell Douglas test, plaintiffs must open _________________
with a prima facie showing of certain standardized elements
suggestive of possible discrimination. LeBlanc, 6 F.3d at 842. _______
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It is undisputed that the employment actions that gave rise to
the instant case took place as part of a reduction in Iberia's
work force. As a result, each of the Appellants was required to
make a prima facie showing (1) that he or she fell within the
ADEA's protected age group -- that is, more than forty years of
age; (2) that he or she met Iberia's legitimate performance
expectations; (3) that he or she experienced adverse employment
action; and (4) that Iberia did not treat age neutrally or
retained younger persons in the same position. See Woodman, 51 ___ _______
F.3d at 1091; Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st ____ _____________________
Cir. 1993).
Establishment of the prescribed prima facie case
creates a presumption that the employer engaged in impermissible
age discrimination. LeBlanc, 6 F.3d at 842; Goldman, 985 F.2d at _______ _______
1117. However, to rebut this presumption, the employer need only
"articulate a legitimate nondiscriminatory reason for the
employee's termination." LeBlanc, 6 F.3d at 842; Goldman, 958 _______ _______
F.2d at 1117. Once the employer meets this burden in an age
discrimination case, however, "the McDonnell Douglas presumption _________________
'drops out of the picture.'" LeBlanc, 6 F.3d at 843 (quoting St. _______ ___
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2749 _________________ _____
(1993)). The trier of fact then must simply determine, based on
the evidence, whether the employer's decision to terminate the
plaintiff was motivated by intentional age discrimination.
LeBlanc, 6 F.3d at 843. _______
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In the context of a summary judgment proceeding, once
the employer articulates a legitimate, nondiscriminatory basis
for its adverse employment decision, the plaintiff, "before
becoming entitled to bring the case before the trier of fact,
must show evidence sufficient for the factfinder reasonably to
conclude that the employer's decision to discharge him or her was
wrongfully based on age." LeBlanc, 6 F.3d at 843; see Goldman, _______ ___ _______
985 F.2d at 1117; Lawrence, 980 F.2d at 69-70. Direct or ________
indirect evidence of discriminatory intent may suffice, but "the
evidence as a whole . . . must be sufficient for a reasonable
factfinder to infer that the employer's decision was motivated by
age animus." Connell v. Bank of Boston, 924 F.2d 1169, 1172 n.3 _______ _______________
(1st Cir. 1991); see LeBlanc, 6 F.3d at 836; Goldman, 985 F.2d at ___ _______ _______
1117. Thus, a district court's grant of summary judgment to an
employer will be upheld if the record is devoid of adequate
direct or circumstantial evidence of the employer's
discriminatory intent.
2. L pez and Izquierdo 2. L pez and Izquierdo
We treat L pez' and Izquierdo's respective appeals
together because the same case law governs both.
The district court found that L pez failed to present a
prima facie case. It found that while she satisfied the first
three required elements of the prima facie case -- she belongs to
the protected class, her job performance was adequate, and she
was discharged -- she failed to satisfy the fourth element. That
is, she failed to show either that Iberia did not treat age
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neutrally or that younger persons were retained in the same
position. Here we assume, without concluding, that L pez has
demonstrated a prima facie case, since doing so does not alter
the outcome of our analysis. In contrast, the district court
concluded that Izquierdo demonstrated a prima facie case, but
that he failed to present sufficient evidence for a reasonable
trier of fact to infer that Iberia's decision to terminate him
was motivated by age animus.
On appeal, L pez argues that the district court erred
because, in fact, she did produce evidence both that Iberia did
not treat age neutrally and that younger persons were retained to
do her functions. With respect to age neutrality, L pez asserts
that Iberia never considered her seniority in its decision to
terminate her, as she argues is required by Puerto Rico Law No.
80.2 However, she cites no authority for the proposition, which
we reject, that Puerto Rico Law modifies the ADEA to take into
account discrimination against more senior employees, not just
____________________
2 Law No. 80 provides, in relevant part, that
it shall be the duty of the employer to
retain those employees of greater
seniority on the job with preference,
provided there are positions vacant or
filled by employees of less seniority in
the job within their occupational
classification which may be held by them,
it being understood that preference shall
be given to the employees discharged in
the event that within the six (6) months
following their layoff the employer needs
to employ a person in like or similar
work . . . .
29 L.P.R.A. 185(c) (entitled "Order of retaining employees").
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older employees. She also points to the fact that, during the
reduction in force, she was not offered employment alternatives
made available to Galo Beltr n ("Beltr n") (age 35) and Ernesto
Rodr guez ("Rodr guez") (age 48). Furthermore, L pez also
maintains that her functions were taken over by a younger
employee, Alga Rivera ("Rivera") (age 33), hired soon after
L pez' termination.
Similarly, Izquierdo (age 45) contends on appeal that
the fact that he was not considered for retention or immediate
re-hiring as a Sales Agent, as Beltr n and Rodr guez3 were,
shows that Iberia did not treat age neutrally in the course of
its reduction in force. Izquierdo also alludes to a younger
individual in a different department than Sales, who was
allegedly offered the opportunity to continue work at a lower
salary. However, since Izquierdo failed to proffer any evidence
that this other department experienced a reduction in force at a
similar time period, or that Izquierdo was qualified for this
position, it would plainly be unreasonable to infer a lack of age
neutrality from this evidence. As a result, we consider only
Izquierdo's arguments regarding Beltr n and Rodr guez. We note
that Izquierdo does not point to evidence contravening Iberia's
position that Beltr n and Rodr guez were simply re-hired at lower
____________________
3 Izquierdo argues that although Rodr guez is older, Izquierdo
was more senior at the time of his dismissal. However, an
inference of age animus would be plainly unreasonable where the
retained person was older. And Izquierdo has not cited _____
authority, and we have not found any, for the proposition that
more senior, but younger, employees fall within the ADEA's
protected class.
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pay to do the same job they had done previously. Neither L pez
or Izquierdo has argued or adduced evidence that Sales Agents
Beltr n and Rodr guez were not, as the district court concluded,
occupying positions below that of Coordinators L pez4 and
Izquierdo.
In Holt v. Gamewell Corp., 797 F.2d 36, 38 (1st Cir. ____ ______________
1986), we confronted arguments similar to those of L pez and
Izquierdo. In that case, the appellant manager argued that, in
lieu of dismissing him, his employer should have discharged one
of the employees he supervised and given that job to appellant.
Thus, we rejected that argument as unsupported by legal
authority, as in the instant case, and as requiring that the
court encroach too far into areas which should be left to "the
company's legitimate management." Id. at 38. ___
The Second Circuit's opinion in Parcinski v. Outlet _________ ______
Co., 673 F.2d 34, 37 (2d Cir. 1982), provides a strong statement ___
of the concerns to which Holt alludes. Considering an argument ____
____________________
4 L pez has also argued that, while she was appointed to the
position of "Coordinator B" of the Sales Department on May 25,
1990, her title was fictitious, as she was actually an "Executive
Secretary." This contention has several problems. Although
argued to the court, it was never supported by a sworn statement.
Additionally, L pez herself contradicted this proposition; in her
deposition, she stated that "regardless of what they wanted to
call me, my work was [as a] Sales Coordinator." Finally, L pez'
appointment to "Coordinator B" took place three years prior to
her discharge. It seems unlikely that Iberia promoted her to
this fictitious position three years in advance with the intent
of later using that title to discriminate against her. As a
result, we conclude that the district court correctly found that
this contention could not reasonably be inferred from the
evidence presented.
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resembling that of the instant case and of the appellant in Holt, ____
the court stated that:
Assuming there were lower echelon, poorer
paying jobs in the restructured
enterprise which [appellants] were
qualified to fill, [the employer] would
be met with serious morale problems
arising out of the substantial reductions
in responsibilities and salaries that
would accompany such moves.
Id.; see Ridenour v. Lawson Co., 791 F.2d 52, 57 (6th Cir. 1986) ___ ___ ________ __________
(stating that "[w]here an employer reduces his workforce for
economic reasons, it incurs no duty to transfer an employee to
another position within the company"); Sahadi v. Reynolds Chem., ______ ______________
636 F.2d 1116, 1117 (6th Cir. 1980).
In accord with the reasoning behind these cases, we
conclude that we must reject L pez' and Izquierdo's arguments
comparing their dismissals to Iberia's treatment of Beltr n and
Rodr guez, and L pez' argument with respect to Rivera. Even
assuming, without holding, that L pez and Izquierdo stated prima
facie cases, we reject their arguments that anti-age animus can
be reasonably inferred from the fact that they were not offered
alternative employment opportunities, as Beltr n and Rodr guez
were. Accordingly, we also reject L pez' argument that
discriminatory animus can be reasonably inferred from the hiring
of Rivera for a position inferior to L pez' previous job as
"Coordinator B." Because we conclude that the evidence adduced
by L pez and Izquierdo, taken as true, cannot suffice to support
a reasonable inference of anti-age animus, we uphold the district
court's grant of summary judgment on their ADEA claims.
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3. Pages 3. Pages
The district court found that Pages demonstrated a
prima facie case, but failed to present sufficient evidence from
which a reasonable factfinder could infer anti-age animus.
Because it does not change our analysis, we assume without
concluding that the district court properly found that Pages (age
51) carried her burden of presenting a prima facie case. As a
result, we review her case to determine whether the evidence as a
whole was sufficient to support a reasonable inference of age
animus in the decision to dismiss her. LeBlanc, 6 F.3d at 836. _______
Pages argued that Iberia's anti-age animus could be
inferred by comparing her dismissal with the retention of: (1)
Mar a Garc a ("Garc a") (age 61), an Executive Secretary; (2)
Sandra Medina ("Medina") (48), an Executive Secretary; (3) Rivera
(33), a Sales Assistant; and (4) Nitza Al s ("Al s") (30), an
employee of an independent contractor who performed functions
similar to Pages'. Even assuming that three comparisons with
non-discharged employees could permit an inference of anti-age
animus in a reduction in force case as a matter of law, these
three particular comparisons cannot. First, Garc a is in fact
older than Pages, a fact that Pages does not dispute. Second, a
reasonable inference of anti-age animus cannot be drawn from the
comparison of the retention of Medina, an executive secretary at
Iberia's administrative offices in Miramar, Puerto Rico, and the
discharge of Pages, "Secretary to the Airport Manager," at the
airport in Isla Verde, Puerto Rico. Pages does not dispute that
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the position of Airport Manager had been eliminated. Thus, to
retain her rather than Medina, Iberia would have had to transfer
Pages to another position or location. And, as noted in the
discussion of L pez and Izquierdo, Appellants cite no authority
for the proposition that an employer conducting a reduction in
force must offer such transfers or relocations -- in fact,
authority exists for the proposition that employers face no such
obligation. See Holt, 797 F.2d at 38; Ridenour, 791 F.2d at 57; ___ ____ ________
Parcinski, 673 F.2d at 37. We must reject any inference of age _________
animus drawn from a comparison of Pages with Rivera for the same
reason we rejected comparisons between L pez and Rivera:
employers conducting a reduction in force face no obligation to
offer "lower echelon, poorer paying jobs in the restructured
enterprise" to all older employees. Parcinski, 673 F.2d at 37; _________
see Holt, 797 F.2d at 38. ___ ____
Finally, the comparison with Al s cannot justify a
reasonable inference of anti-age animus because Al s was not
employed by Iberia, but by another company, G.M.D., with a
contract to perform services for Iberia. This circuit has
previously stated that
[a] discharged employee 'is not replaced
when another employee is assigned to
perform the plaintiff's 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
plaintiff's duties.'
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LeBlanc, 6 F.3d at 846 (citations omitted) (quoting Barnes v. _______ ______
GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 ______________ ____________
U.S. 878 (1990)). Thus, to reasonably infer that Pages was
replaced by a younger employee, we would have to conclude that
Pages' duties, and no others, were allocated to Al s, and that
Al s should be considered an Iberia employee. However, in
Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 566 ________ ________________________________
(11th Cir. 1992), the court rejected as insufficient to establish
a prima facie case, without more, an employee's claim that his
employer assigned his work to an independent contractor
corporation that decided to employ younger employees to do the
work. What is more, the instant case has a grave flaw that was
not present in Mitchell: Iberia's contract with G.M.D. predates ________
the reduction in force that gave rise to Pages' claim. Since
Pages has failed to present evidence suggesting that Iberia
could, at its discretion, retain her and have G.M.D. eliminate
Al s, any inference of age animus drawn from Iberia's "retention"
of Al s would be simply unreasonable.
As a result, we conclude that the comparisons Pages
points to cannot support a reasonable inference of age animus on
the part of Iberia.
B. Pages' Puerto Rico Law No. 80 Claim B. Pages' Puerto Rico Law No. 80 Claim
Pages also argues that the District Court erred in
granting summary judgment for Iberia on her claim under Puerto
Rico Law No. 80. Law No. 80 provides, in relevant part, that
[e]very employee in commerce, industry or
any other business . . . who is
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discharged from his [or her] employment
without good cause, shall be entitled to __________________
receive from his employer, in addition to
the salary he may have earned:
(a) The salary corresponding to one
month, as indemnity;
(b) An additional progressive indemnity
equivalent to one week for each year of
service.
29 L.P.R.A. 185a (emphasis added). In response, Iberia argues
that it had "good cause" to discharge Pages, pointing to 185b,
which provides that "[j]ust cause . . . shall be understood to be
. . . reorganization changes . . . [or] [r]eductions in
employment made necessary by a reduction in the anticipated or
prevailing volume of production, sales or profits at the time of
the discharge." 29 L.P.R.A. 185b(e)-(f). Pages has not
presented evidence to rebut Iberia's evidence that it eliminated
its Sales Department after it had incurred substantial operating
losses in San Juan.
However, Pages points to 185c, which provides that,
where employees are discharged due to reorganization or a
reduction in production, sales or profits, "it shall be the duty
of the employer to retain those employees of greater seniority on
the job with preference, provided there are positions vacant or
filled by employees of less seniority in the job within their
occupational classification which may be held by them . . . ."
29 L.P.R.A. 185c. In the context of her Law No. 80 argument,
Pages suggests that a comparison of her discharge with the
retention of Executive Secretaries Garc a and Medina raises a
genuine issue of material fact as to whether Iberia complied with
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Law No. 80. According to Pages, she was more senior than Garc a
or Medina.
In fact, Pages has provided no evidence to rebut
Garc a's testimony, in her sworn affidavit, that Garc a has in
fact been with Iberia as long or longer than Pages. We thus turn
to the comparison with Medina, since the record evidence does
suggest that Medina was less senior than Pages. Pages argues
that even though Medina's position was in Miramar, Puerto Rico,
and Pages' was at the airport in Isla Verde, Iberia should have
given Pages the option to transfer to Miramar to replace Medina.
This argument neglects two different provisions in Law No. 80.
First, Law No. 80 states that seniority need not be followed
where "there is a clear and conclusive difference in favor of the
efficiency or capacity of the workers compared . . . ." 29
L.P.R.A. 185c. The relevant evidence shows that Medina's
position at the Miramar office and Pages' position at the airport
in Isla Verde were not fungible. Medina had worked in Miramar
since 1972, while Pages had worked in Isla Verde since 1970.
Without more evidence, the district court could have found that
no genuine issue of material fact was raised as to the relative
efficiency of keeping Medina in her own position, rather than
transferring Pages, as it was Pages' airport position that was
being eliminated.
Furthermore, Pages ignores 185c(a), which states in
relevant part that
[i]n the case of discharges or layoffs
. . . in companies that have several
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offices . . . and whose usual and regular
practice is not to transfer employees
from one office . . . to another, and
that said units operate in a relatively
independent manner with regard to
personnel aspects, the seniority of the
employees within the occupational
classification subject to the layoff
shall be computed by taking into
consideration only those employees in the
office . . . in which said layoff shall
occur.
29 L.P.R.A. 185c(a). Iberia has argued throughout that all but
one position at the Airport has been eliminated since 1991, in
accord with its reorganization plan, and that transfers were not
possible due to the different nature of the tasks which the
airport employees performed as compared to the Miramar office
employees. The only evidence to which Pages points fails to
generate an issue of fact, since neither she, nor Medina, nor
Garc a, has apparently been transferred since 1970, when Pages
began work at Iberia.
As a result, we affirm the district court's grant of
summary judgment to Iberia on Pages' Law No. 80 claim.
C. L pez' Puerto Rico Law No. 379 Claim C. L pez' Puerto Rico Law No. 379 Claim
L pez also challenges the district court's grant of
summary judgment on her claim under Puerto Rico Law No. 379 for
overtime pay she contends Iberia owed her. Puerto Rico Law No.
379 states, in pertinent part, that "forty hours of work
constitute a workweek," 29 L.P.R.A. 271, "extra working hours
are . . . hours that an employee works for his employer in excess
of forty during any week," 273(b), and "[e]very employer who
employs or permits an employee to work during extra hours, shall
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be bound to pay him for each extra hour a wage rate equal to
double the rate agreed upon for regular hours," 274.
The district court, however, concluded that the
overtime provisions did not apply to L pez, since 288 states
that Law No. 379 does not apply to exempt "employees" working as
"executives, administrators, or professionals, as these terms may
be defined by the Puerto Rico Minimum Wage Board." 29 L.P.R.A.
288; see, e.g., Lehman v. Ehret Inc., 103 D.P.R. 264, 267 (P.R. ___ ____ ______ __________
1975) (discussing the definition of "administrator"). L pez
challenges the district court's application of the Minimum Wage
Board's Regulations.
Under the authority granted it by 288, the Minimum
Wage Board promulgated regulations by substantially adopting
definitions found in the federal regulation on the same matter.
See Santiago v. Corco, 114 D.P.R. 267, 269 (P.R. 1983). On ___ ________ _____
appeal, both parties argue for, and we agree with, the
application of the short test, since it is undisputed that Pages'
weekly salary was "not less than $295," as the regulation
requires for the short test's application. Regulation No. 13,
Article III(f), Fourth Revision, Commonwealth of Puerto Rico
Minimum Wage Board (1990). As a result, she is excluded from the
coverage of Law No. 379's provisions if:
(a) [she] perform[ed] office or nonmanual
field work directly related to management
policies or to general business
operations of the employer or of the
customers of the employer; and
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(b) [she] customarily and regularly
exercise[d] discretion and independent
judgment.
Id., Article III. ___
L pez argues that a genuine issue of material fact
existed as to whether she performed office work directly related
to management policies or general business operations, and
whether she customarily and regularly exercised discretion and
independent judgment. She argues specifically that she did not
perform supervisory functions and that she was in fact an
"Executive Secretary" despite her title of "Coordinator B."
However, Article III(a) and (b) contain no requirement that one
perform supervisory functions. To be exempted from Law No. 379,
one need only perform "office . . . work directly related to
management policies or to general business operations of [one's]
employer." Article III(a). Thus, L pez' first assertion, even
if believed, cannot create a genuine issue that would preclude a
grant of summary judgment for Iberia, since it fails to respond
to any relevant requirement in Regulation No. 13.
As a result, we turn to L pez' contention that she was
an Executive Secretary rather than a Coordinator, and that Law
No. 379 cannot apply to her as an Executive Secretary. In
addressing this assertion in the ADEA context, see supra, we ___ _____
rejected this contention as unsupported by a sworn statement,
explicitly and directly contradicted by her sworn deposition, and
rebutted by evidence Iberia proffered. However, in the ADEA
context the standard of review was whether L pez showed evidence
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sufficient for the factfinder reasonably to conclude that she was
discharged due to discriminatory intent. We noted in passing
that because Iberia's alleged mistitling of her position occurred
three years' before her discharge, that fact, together with her
lack of evidence, rendered any age inference unreasonable.
However, while it would be unreasonable for a finder of fact to
think that an employer mistitled an employee's position to cloak
its age discrimination years later, it would not be similarly
unreasonable to believe that employers seeking to avoid paying
overtime would mislabel a position to take advantage of Law No.
379's exemptions for managers, professionals and administrators.
As a result, we evaluate L pez' argument that she was
in fact an "executive secretary," assuming without concluding
that she adequately proffered evidence to raise this issue.
Neither party has cited Puerto Rico case law interpreting Law No.
379 with respect to supervisory duties or to the title of
"Executive Secretary." To determine whether L pez' assertion
could create a triable issue of fact, we may consider the federal
regulations which implement the Federal Fair Labor Standards Act.
See L pez Vega v. Vega Otero, Inc., 103 P.R.R. 243, 246-47 (P.R. ___ __________ ________________
1974) (deciding that where appellee was an executive under the
provisions of the Federal Fair Labor Standards Act and its
regulation, he could not maintain a claim against his employer
for extra hours); Rodr guez v. Concreto Mixto, Inc., 98 P.R.R. _________ ____________________
568, 575-76 (P.R. 1970) (determining whether or not an employee
or worker is a person employed in a bona fide executive capacity
-19-
by following the rules set forth in 29 C.F.R. 541.1 et seq.). ______
These regulations, in describing those exempt as "administrative"
employees, note that
[i]n modern industrial parlance there has
been a steady and increasing use of
persons who assist an executive in the
performance of his duties without
themselves having executive authority.
Typical titles of persons in this group
[include] . . . executive secretary. . . ___________________
.
29 C.F.R. 541.201 (emphasis added). As a result, even assuming
that she was an Executive Secretary, that would not disqualify
her from being an exempt employee, assuming that she did office
work related to management policies and general business
operations, and that she customarily and regularly exercised
discretion and independent judgment. Iberia's submitted evidence
and L pez' co-appellant Izquierdo's testimony as to L pez' duties
both presented ample evidence that L pez exercised discretion and
independent judgment. In particular, Izquierdo stated that L pez
helped him supervise sales personnel; coordinated the work of the
salesmen; attended social and civic activities "to represent the
company"; and exercised her own discretion with respect to her
work. Because L pez failed to present evidence to rebut
Izquierdo's testimony, and given Iberia's evidence that she
exercised discretion and independent judgment, we conclude that
no issue of fact existed regarding this point. As a result, we
conclude that she falls under Regulation No. 13's exemption from
Law No. 379, and thus the district court correctly granted
summary judgment on her overtime pay claim to Iberia.
-20-
CONCLUSION CONCLUSION
As a result of the foregoing, the judgment of the
district court is affirmed. affirmed ________
-21-
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