Opinion
CIVIL NO. 08-2398 (GAG).
May 6, 2010
OPINION AND ORDER
The plaintiff Juan C. Pagan-Colon ("Pagan"), his wife Ada Renta Bonilla ("Renta"), and the conjugal partnership formed between them, commenced this action against his former employer Walgreens De San Patricio Inc. ("Walgreens"), alleging wrongful termination in violation of the Federal Medical Leave Act ("FMLA"), Article 1802 of the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31 § 5141, and Puerto Rico Law 80, P.R. Laws Ann tit. 29, § 185a (1976). Presently before the court are Defendant's motions for summary judgement (Docket No. 42 and 44), plaintiff's opposition thereto (Docket No. 53), and defendant's subsequent reply (Docket No. 71). After reviewing the relevant facts and applicable law, the court DENIES IN PART and GRANTS IN PART Walgreens's motions for summary judgment (Docket No. 42 and 44.)
I. Standard of Review
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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is "genuine" if it may reasonably be resolved in favor of either party, and a "material fact" is one that has the potential of affecting the outcome of the case. Calero-Cerzo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004). The moving party has the initial burden of showing there is no genuine issue as to any material fact. Celotex, 477 U.S. at 325. This burden may also be discharged by showing there is insufficient evidence to support the nonmoving party's case. Id.
If the moving party meets its burden, then the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party (here, the plaintiff) and give that party the benefit of any and all reasonable inferences. Id. at 255. Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence. Id.
II. Relevant Factual Procedural Background
Consistent with the summary judgment standard, the court states the facts in the light most favorable to Plaintiff. See Clifford v Barnhart, 449 F.3d 276, 280 (1st Cir. 2006).
Pagan began working for Walgreens on May 10, 2000 as an employee of the photo development department. He was promoted to the position of Assistant Manager in 2001. After working at several other Walgreens stores, he was transferred back to the Walgreens located in Juana Diaz in 2006.
On the morning of May 10, 2008, during his shift at Walgreens, Pagan felt chest pains. On his morning break, Pagan drove himself to the emergency room at Damas Hospital. Prior to leaving work, Pagan did not inform any fellow employees of his plan to seek medical attention. Upon inspection in the emergency room it was determined that Pagan had high blood pressure and elevated sugar levels. After the initial tests, Pagan called his wife, co-plaintiff Renta, and informed her that he was scheduled to undergo further evaluations. Pagan asked Renta to call his manager, Edwin Figueroa ("Figueroa"), to convey that he was in the hospital emergency room. During their phone conversation between Renta and Figueroa, Figueroa told Renta that it was important for Pagan to contact him as soon as possible. Walgreens asserts that Renta told Figueroa that Pagan was at the hospital, but not that he had been hospitalized, while Renta claims that she did tell Figueroa that Pagan had been hospitalized. Later, Renta called Walgreens a second time. During her second phone call to Walgreens, Renta claims that she spoke with Giovanni Rivera ("Rivera"), an Assistant Manager at Walgreens. Renta testified at her deposition about pagan's hospitalization, and that she would call back when she knew in what room he would be staying. However, Rivera claims that he never had a conversation with Renta. After Pagan had been placed in a room, Renta called Walgreens again and spoke with Carlos Figueroa ("Carlos"), a photo development department employee, and informed him what hospital room Pagan would be occupying. Figueroa, Pagan's manager, claims that he did not receive notice of either the second or third phone calls.
Pagan suffers from type II diabetes. It is undesputed that Walgreens was aware of his preexisting health condition.
After May 10, 2008 Pagan had no contact with any Walgreens employee until Rivera called him at the hospital on May 15, 2008. Rivera had been informed by a fellow employee Irma (last name unknown) that Pagan was to undergo an operation. After talking with Pagan, Rivera notified Ernie Ortiz ("Ortiz"), the Executive Assistant Manager at the Juana Diaz Walgreens, that Pagan would undergo an operation the following day. Ortiz, at the time, was in charge of employee schedules.
While in the hospital, Pagan was visited by Yerica Colón, a coworker in the photo department. Pagan underwent heart catheterization surgery on May 16, 2008. According to a letter Pagan received on June 6, 2008, from the Walgreens employee profit sharing program, he had been terminated by Walgreens on May 16, 2008. No one had previously informed Pagan that he had been terminated. In its reply, Walgreens notes that the profit sharing program is not run by Walgreens, and thus is not indicative of Walgreens having officially fired Pagan.
Pagan was released from the hospital on May 17, 2008. On the day that Pagan was released from the hospital, he returned to the Juana Diaz Walgreens to have his prescription filled. While at Walgreens, Pagan showed Assistant Manager Mariel Colon-Santiago ("Mariel"), a hospital certificate summarizing his hospitalization. At the time, Mariel was the highest ranking employee in the store. Pagan informed Mariel that he was waiting for his doctor's permission to return to work. While in the store, Pagan gave Wanda Santiago, the Walgreens bookkeeper, the medical certificate. Figueroa claims, however, that he was not notified by any employee of Pagan's visit to the store on May 17, 2008. On May 19, 2008, Figueroa sent Pagan a letter asking him to contact the Walgreens management in order to explain his unreported absences beginning on May 10, 2008. The letter also informed Pagan that he may be eligible for disability leave and other benefits. However, Pagan did not receive the letter until May 28, 2008, four days after being terminated. Figueroa claims that on the day he sent the letter he had no knowledge of Pagan's hospitalization, despite asking the Assistant Managers and his Executive Assistant Manager everyday if they knew of Pagan's status. Therefore, the record reflects that by May 19, 2008 three of the four assistant managers and the executive assistant manager were aware Pagan had been hospitalized. Figueroa claims that he found out for the first time that Pagan had been hospitalized for a week, on May 23, 2008, when he found Pagan's medical certificate, from Damas Hospital, taped to his door. It is not clear who taped the certificate to Figueroa's door. Upon viewing the certificate Figueroa called his supervisor, Ada Colon ("Ada") to discuss Pagan's employment status. Figueroa decided to terminate Pagan for job abandonment, due to his absences from the 18th through the 23rd of May.
On May 23, 2008, around five or six p.m., Pagan went to Walgreens and gave Ivelisse Lopez ("Lopez") a medical certificate from his endocrinologist Dr. Guireida Rivera. The certificate from Dr. Rivera excused Pagan from work between the dates of May 17th through the 23rd, and granted him leave to return to work on May 24, 2008. Pagan testified that he informed Lopez that he would be able to start work the next day, and that Lopez indicated that he would have to consult with Figueroa about when he would be scheduled to work. Later that day, according to Pagan's testimony, Lopez called Pagan and requested he report for work on the following day. Meanwhile, Figueroa claims that he did not have a conversation with Lopez on the 23rd regarding Pagan. Pagan went to Walgreens on May 24, 2008, punched in his time card and began working. That morning Figueroa informed Pagan that he no longer worked for Walgreens, and asked him to return the keys to the store. After leaving the store Pagan called Ada, the district manager. Ada told Pagan he would need to contact Walgreens's Main Office to seek reconsideration of his termination.
On May 30, 2008, Pagan and Renta went to the Walgreens Main Office and spoke with Miriam Diaz ("Diaz") from the human resources department. Pagan showed Diaz the two medical certificates that excused his absences from work between May 10 and May 23, 2008. Diaz explained that she would contact Walgreens's attorneys, and then get back to him shortly. Ada, Diaz, and Figueroa met on June 2, 2008 to discuss Pagan's absences, and subsequent medical excuses. During the meeting it was decided that Walgreens would give Pagan the opportunity to explain his absences, and if his excuses were to be found compelling, he would be reinstated. Figueroa called Pagan, and asked to meet him at the store on June 4, 2008. Present at the meeting with Pagan were Figueroa and Melvin Rodriguez ("Rodriguez"), a loss prevention manager for Walgreens. At the meeting Pagan was told that there would be an internal investigation, and that Pagan would be contacted when a decision had been reached about his reinstatement. After the meeting, Pagan called Rivera. The parties contest the substance and purpose of the phone conversation between Rivera and Pagan. Pagan claims that he inquired whether his wife called Rivera on May 10, 2008, while he had been hospitalized. Walgreens claims that Pagan asked Rivera to tell the internal investigators that Renta had spoken to him on May 10, 2008. Walgreens believes that Pagan was asking Rivera to falsify his statement to the investigators. Pagan claims that the sole purpose of the call to Rivera was to determine if Renta had called him. Rivera says that he did not talk to Renta on May 10, 2008.
At the end of the investigation Walgreens decided not to reinstate Pagan, due to dishonest conduct. The internal investigation led Walgreens to believe that Pagan had lied about contacting fellow employees during his absent days. Walgreens also listed Pagan's past disciplinary record as influencing its decision not to reinstate him. On June 4, 2008, Walgreens informed the unemployment division of the department of labor that Pagan had been terminated for job abandonment. Two days later, Walgreens attempted to modify its reason for terminating Pagan, explaining he had been discharged for being dishonest. However, on the same day the Department of Labor notified Walgreens that Pagan did qualify for unemployment benefits, and that his termination was not considered to be caused by incorrect behavior. Walgreens had until the 26th of June to appeal the labor department's finding, but took no action to change the status.
Walgreens claims, in its uncontested statement of facts that it decided to terminate Pagan after the investigation, but the court finds that conclusion inconsistant with the record. The record shows that Pagan had already been terminated on May 24, 2008.
III. Discussion
A. Federal Medical Leave Act
In his complaint, Pagan alleges that he was terminated after taking FMLA protected leave, in violation of his right to take leave for a serous medical condition. "The FMLA was enacted to help working men and women balance the conflicting demands of work and personal life. It does so by recognizing that there will be times in a person's life when that person is incapable of performing her duties for medical reasons." Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998); 29 U.S.C. § 2601(b)(1) (2) (2009). An employee who qualifies for FMLA leave is entitled to up to twelve weeks unpaid leave per year. 29 U.S.C. § 2612(a)(1)(D) (2009). An eligible employee who takes FMLA leave is entitled to return to the same or equal position as when they left. 29 U.S.C. § 2614(a)(1).
Employers are prohibited from retaliating against an employee who has invoked his or herFMLA rights. See 29 C.F.R. 825.220. If no direct evidence of retaliation exists, the First Circuit applies the McDonnell-Douglas burden shifting framework. See Hodgens, 144 F.3d at 160. Under the framework, the employee bears the initial burden to establish a prima facie case of retaliation by the employer. Id. To make a prima facie case for retaliation Pagan must establish the following: (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; and (3) there is a casual connection between the employee's protected activity and the employer's adverse employment action. Id. at 161. If a prima facie case is made, the burden then shifts to the employer to give a "legitimate, nondiscriminatory reason for the employee's termination. Id. If the employer shows a nondiscriminatory reason for termination, the burden then shifts back to the employee to show the employer's reason for termination was a pretext for retaliation.
In its motion, Walgreens does not contest that Pagan meets the second prong of the prima facie test, as he was adversely affected by it decision to terminate his employment. However, Walgreens asserts that Pagan fails to meet prongs one and three of his prima facie case of retaliation. Additionally, Walgreens claims the termination was not retaliatory, as it was based on a legitimate non-discriminatory reason.
1. Availing of Protected FMLA Rights
Walgreens contends that Pagan failed to avail himself of his FMLA rights by not adequately notifying Walgreens of the reasons for his absences. In assessing notice under the FMLA, "[t]he critical question is whether information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition." Walton v. Ford Motor Co., 424 F.3d 481, 486 (6th Cir. 2005). The employee is responsible for giving enough information to put the employer on notice that the employee's leave might be protected by the FMLA. "The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed." 28 C.F.R. § 825.303(b). Under the controlling regulations when the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable. 29 C.F.R. § 825.303(a) (2009). "As soon as practicable" means, as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. 29 C.F.R. § 825.302(b). The employee is generally responsible for notifying the employer, although, if the employee is unable to personally notify the employer, a representative may do so in their place. Id. Unless there are exceptional circumstances, the notification must follow the employer's policy. 29 C.F.R. § 825.303(c).
The question before the court is whether Pagan presented enough evidence that a jury could find he gave sufficient notice to Walgreens that he was asserting his FMLA rights. The first issue of contention is whether Renta's communications with Walgreens's employees on May 10, 2008, adequately put Walgreens on notice that Pagan was hospitalized. Walgreens claims that the conversation Pagan's wife had with Figueroa was insufficient to put Walgreens on notice. The parties disagree on whether Renta told Figueroa that Pagan was hospitalized. Walgreens asserts that Renta merely told Figueroa that Pagan was at the hospital. Walgreens, further states that Renta's phone call was insufficient notice because the store policy requires that it must be the employee that contacts the manager, and not a family member. However, the Walgreens employee manual clearly states that "it cannot be another person, unless it's an emergency."(See Docket 60-3 at 3.) The record shows that Pagan was prohibited from using cell phones in the cardiovascular room, where he was being treated, so he would not have been able to personally contact Figueroa. (See Docket 60-2 at 73.)
The parties also disagree on whether Renta talked to Rivera. Neither party denies that Renta spoke to Carlos that evening and told him in what room Pagan would be staying. Walgreens states that according to their policy Pagan had to notify his Manager, Figueroa. However, the manual specifically mentions that if the manager is not available, the Assistant Manager should be notified. See Id. Accordingly, if only Carlos was informed of the hospitalization this would not comply with Walgreens's policy, as he was neither a manager nor an assistant manager. However, a jury could find that Walgreens was properly notified by Renta's conversations with Figueroa or Rivera, if they found Renta to be credible in this regard.
Walgreens states that it did not have notice that Pagan might be exercising his FMLA rights until May 23, 2008, after someone taped Pagan's hospital record to Figueroa's door. However, this claim by defendant clearly glances over the obvious fact that under the company's policies, if Renta spoke with Figueroa and Rivera on May 10, 2008, Walgreens would have been notified that Pagan had been hospitalized, before he was terminated. Just because Figueroa may not have had knowledge of the hospitalization does not mean that Walgreens on May 24, 2008, had not been notified via its Assistant Managers. It is uncontested that Assistant Manager Rivera and the Executive Assistant Manager Ortiz both became aware by May 15, 2008, that Pagan had been hospitalized and would undergo surgery. Walgreens was further put on notice when Pagan visited the store on May 17, 2008. On that date, Pagan showed the highest ranking employee at the store, Assistant Manager Mariel, his medical certificate of hospitalization and orally informed her that he would be absent from work until his doctor gave him permission. As Figueroa was not present, notifying Mariel of his future absences was in compliance with Walgreens's own policy. Therefore, even though Figueroa was unaware prior to May 23rd of Pagan's condition, Walgreens had been put on notice. Pagan cannot be held responsible for the Assistant Manager's failures to convey their knowledge of the hospitalization to Figueroa. On May 23, 2008, Figueroa found a medical certificate excusing Pagan from the May 10 thru May 17, 2008, and then later that day may have received a phone call from Lopez, who was in possession of a medical certificate excusing Pagan's absences from the 17th through the 23th of May. Therefore, when Figueroa terminated Pagan on the 24th, a reasonable jury could find that Walgreens had been put on notice that Pagan was taking FMLA protected leave. "Whether an employee has given adequate notice is generally an issue of fact for the jury to decide." De Hoyos v. Bristol Labs. Corp., 218 F. Supp. 2d 222, 226 (D.P.R. 2002).
2. Connection between dismissal and Protected activity
To satisfy the third prong of the prima facie case, Pagan must show there is a causal connection between his medical leave and Walgreens's decision to terminate his employment. See Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997); Hodgens, 144 F.3d at 161. The evidence shows that Walgreens terminated Pagan on May 24, 2008 for job abandonment. He was told by his supervisor Figueroa that he was terminated for job abandonment as a result of his absences between the dates of May 10 and May 23, 2008. Those were the dates Pagan was either hospitalized or recovering from surgery. In addition, Walgreens initially told the Department of Labor that Pagan was terminated for job abandonment. The evidence shows there is a direct connection between Pagan's absences and his termination. The prima facie burden is "quite easy to meet. "Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir. 1991). When the court draws all inferences in favor of Pagan, he has satisfied his burden to establish a prima facie case.
3. Independent Reason for termination
Because Pagan has established a prima facie case of retaliation, the burden shifts to Walgreens, which must demonstrate it terminated Pagan for a legitimate, non discriminatory reason. See Hodgens, 144 F.3d at 166. "Where an employee properly takes FMLA leave, the employee cannot be discharged for exercising a right provided by the statute, but can still be discharged for independent reasons." See Nagle v. Acton-Boxborough Regional School Dist., 576 F.3d 1, 3 (1st Cir. 2009). Walgreens claims that Pagan was not terminated for taking sick leave, but for dishonest conduct, prior violations of company policy, and inadequate notice of his absences. The court however, finds this argument contrary to the presented evidence. The facts show that Figueroa fired Pagan on May 24, 2008, for job abandonment. (See Docket 61-2 p. 29.) Nothing in the record supports Walgreens's proposition that it considered dishonest conduct or prior policy violations before terminating Pagan. Walgreens's other rationale for terminating Pagan, is that he abandoned his job by failing to notify Walgreens of the reasons for his absences. Whether there was adequate notification however, was already addressed under the analysis of the first prong of the prima facie retaliation claim.
When viewing the facts of this case in the light most favorable to the non moving party (Pagan), the court finds that a reasonable jury could find that Walgreens's termination of Pagan was in retaliation for exercising his FMLA protected rights. Because Walgreens has not met its burden of showing there is no genuine issue of material fact, the court must DENY its motion for summary judgment on Pagan's FMLA claim.
B. Article 1802
Pagan also seeks damages under articles 1802 and 1803 of the Civil Code of Puerto Rico, for his discharge from Walgreens. However, under Puerto Rico law Pagan is barred from bringing an action under article 1802 and Law 80 for the same conduct. This Court has held that "to the extent that a specific labor law covers the conduct for which a plaintiff seeks damages, he is barred from using that same conduct to also bring a claim under Article 1802." Rosario v. Valdes, 2008 WL 509204 (D.P.R. 2008);see also Santini Rivera v. Serv. Air, Inc., 137 D.P.R. 1 (1994). Pagan's article 1802 claim is based upon the same conduct as his Law 80 claim: that he has suffered damages due to wrongful termination by Walgreens. Because Pagan has failed to express how that harm was caused independently of the wrongful termination, Walgreens's motion for summary judgment on the article 1802 claim is GRANTED.
Pagan also improperly brings a claim under article 1803 of Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31, § 5142. Article 1803 creates vicarious liability. See P.R. Laws Ann. tit. 31, § 5142 ("The obligation imposed by [article 1802] is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible.") P.R. Laws Ann. tit. 31, § 5142. Pagan only lists Walgreens as a defendant in his complaint. In order to bring an article 1803 claim against Walgreens, Pagan would necessarily have to show that he was injured by the negligent actions of a Walgreens's employee. However, Pagan did not bring a claim against a Walgreens employee, nor has he even asserted that he was injured by the negligent actions of a fellow employee. Consequently, Walgreens's motion for summary judgement on Pagan's 1803 claim is GRANTED.
D. Law 80
IV. Conclusion
See Secretario del Trabajo v. I.T.T, See Medina v. Adecco,561 F. Supp. 2d 162174See I.T.T., DENIED. DENIES IN PART GRANTS IN PART DISMISSES
SO ORDERED.