Opinion
Civil No. 03-1289(JAF).
August 18, 2005
MAGISTRATE-JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, Jackeline Hernández-Mejías brings suit alleging she was discriminated against and ultimately discharged by the defendants as a result of her pregnancy ( Docket Nos. 1, 2). Defendants General Electric Company and Caribe GE move for summary judgment. Plaintiff has responded and defendants have filed a reply ( Docket Nos. 78, 89, 97). The matter was referred to the undersigned for Report and Recommendation ( Docket No. 78).
One of the named defendants is General Electric Company, and it is alleged that it wholly owns Caribe GE Distribution Components, Inc. ( Docket Nos. 1, 2). Summons was issued to the General Electric Company at the address of 41 Woodford Ave., Plainville, Connecticut.
Suit is brought against Caribe GE Distribution Components, Inc. a/k/a Caribe G.E. Industrial Systems, GE Puerto Rico Operation, Caribe General Electric, Caribe G.E. Products, Inc., and Caribe G.E. International Electric Meters Corp. Defendant's answer to the Amended Complaint states that Caribe GE Distribution Components, Inc. is correctly named as Caribe GE International Electric Meters Corp. ( Docket No. 8).
I. Procedural Background
Jackeline Hernández-Mejías (hereafter "Hernández") filed her complaint, pursuant to Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. She also raises supplemental claims pursuant to the Puerto Rico Constitution, Article 1, § 2, Law 100, 29 P.R. Laws Ann. § 146 et seq., Law 69, 29 P.R. Laws Ann. § 1321 et seq. and Law 139 (SINOT), 11 P.R. Laws Ann. § 201, et seq. ( Docket Nos. 1, 2). Defendants have filed two motions to dismiss. The basis for the first motion to dismiss was Hernández's failure to exhaust administrative remedies as to General Electric Company (hereafter "GE"). The basis for the second motion to dismiss was that Hernández does not have a private, non-class cause of action for pattern and practice discrimination under Title VII. Both motions were denied ( Docket Nos. 46, 62).
Defendants GE and Caribe GE now move for summary judgment contending there are no material issues of fact with respect to Hernández's claim. More particularly, defendants contend that Hernández has failed to make a prima facie case of discrimination, there was a legitimate, non-discriminatory reasons for Hernández's termination, and Hernández has failed to set forth evidence of pretext of a discriminatory motive. Defendants also argue that as to the claims brought against GE, Hernández failed to exhaust administrative remedies and failed to establish the application of the single employer doctrine. The defendants also move for dismissal of the supplemental state claims.
II. Factual Background
The record contained a very few number of undisputed facts. Many of the facts as set forth by the parties depict inferences made from the evidence contained in the exhibits filed and attached to their motions. Accordingly, the undersigned sifted through the record and sets forth the facts as follows:
Hernández was employed at Caribe GE in Humacao, Puerto Rico, from 1998 until 2001 as a light machine operator and plastic finisher ( Docket No. 89, Ex. 13). During her term of employment, Hernández's performance evaluations showed mostly satisfactory marks per category evaluated, with unsatisfactory marks in attendance and punctuality ( Docket No. 104, Ex. A). She was counseled on absenteeism problems. Id.
At all relevant times, Awilda Ríos (hereafter "Ríos") was the Human Resources Manager at Caribe GE. Stipulated Fact No. 10. She is no longer employed with Caribe GE ( Docket No. 78, Ex. 3). When Ríos began her employment with Caribe GE she received new employment training in Connecticut to learn about the company ( Docket No. 89, Ex. 3). All attendees were persons from GE companies. Id. Ríos testified that she would receive general e-mails from GE's Central Office in upstate New York on items such as change of name, when a company was purchased, and general company information, but she did not know personally anyone there. Id. She did not receive written instructions from corporate representatives in the States ( Docket No. 78, Ex. 3). Ríos explained that during the time she worked in Human Resources she did not have a human resources counterpart in the United States, and did not share information or receive instructions regarding human resources from the related entities in the States. Id.
Hernández's first day of work at Caribe GE was December, 21, 1998. Stipulated Fact No. 1. She signed a Temporary Employment Contract for a term beginning on December 21, 1998, and ending on January 30, 1999 ( Docket No. 89, Ex. 11). On the same date she certified receiving the Temporary Employees Manual, and each of the subsequent contracts she signed stated that she received said manual. Id. She was also assigned Employee No. 10546. Id. Hernández testified that the terms of the contract were explained to her ( Docket No. 89, Ex. 4).
This document was not provided to the Court.
She entered into subsequent Temporary Employment Contracts, one signed on January 29, 1999, for a six month term beginning January 30, 1999, and ending on July 30, 1999, the next contract was signed on July 30, 1999, for a one month period ending on August 30, 1999, and another one was signed on August 30, 1999, for a one month term that is; until September 30, 1999 ( Docket No. 89, Ex. 11). A six month contract was signed on September 29, 1999, for the period beginning September 30, 1999, and ending on March 31, 2000. Id. This contract was followed by another three month contract signed on March 31, 2000, commencing on March 31 and ending on June 30, 2000, and this was followed by a one month contract signed and beginning on June 30, 2000 and ending on July 31, 2000. Id.
On July 31, 2000, Hernández signed a Temporary Employment Contract for a four month term beginning on July 31, 2000, and ending on November 30, 2000 ( Docket No. 89, Ex. 11). She became pregnant in August 2000 and informed Caribe GE of her condition. Stipulated Fact No. 2. On September 21, 2000, Hernández left work because of a pregnancy related complication, taking disability leave under SINOT. Stipulated Fact No. 3, Docket No. 89, Exs. 1, 2. She was found eligible for benefits through December 30, 2000, and her physician certified medical leave until December 20, 2000, but she was discharged before that date and returned to work on December 11, 2000. Stipulated Fact No. 3. The employment contract term had expired on November 30, 2000, while Hernández was on leave, and upon her return on December 11, 2000, she signed a one month contract beginning on December 11, 2000, and ending on January 11, 2001 ( Docket No. 89, Ex. 11). Hernández acknowledged during her deposition that after she disclosed her pregnancy to Human Resources, the company continued to renew her contract ( Docket No. 78, Ex. 5).
The Disability Act provides for payment of compensation to workers for the loss of wages as a result of disability due to illness, which includes pregnancy, or accident not connected with employment. 11 L.P.R.A. §§ 201, 202.
An Employee Transaction Record, dated December 15, 2000, and effective December 11, 2000, indicates that Hernández's contract had ended on November 30 and that she was recalled to work on December 11, 2000, with a new contract ( Docket No. 92, Ex. 8). The form contains her "Clock No." 10546, but the space within the form to provide the seniority date, was left blank. Id. Defendants' Hire Date List for Temps for Week 10, lists Hernández with an Employee Number of 10546 and a Hire Date/Seniority Date of December 11, 2000 ( Docket No. 89, Ex. 13). This is the date the December 11, 2000, contract was signed; not the date that she first worked at Caribe GE, that being December 21, 1998. Thus, Hernandez's seniority is at issue.
The Caribe GE Products, Inc. Associate's Handbook discusses "Loss of Service Credits and Continuity of Service" ( Docket No. 103, Docket No. 89, Ex. 7). The handbook provides a definition of "service continuity" as an associate who has a total of 52 or more weeks of service credits. Id. Service credits are credits for periods during which the associate is really working for the Company or for periods of absence for which credits have been awarded. Id. Continuous service is the duration of the service continuity and equals the total service credits of an associate with continuity of service. Id. Absence is the period in which an associate is absent from work with or without pay, an exception made for paid vacation periods. Id.
Loss of service credits and continuity of service will be lost when an associate 1) leaves his job, resigns or is terminated; 2) is absent from work for more than two weeks without a satisfactory explanation; 3) is absent from work due to a personal illness or for having suffered an accident and fails to keep his supervisor informed on a monthly basis, indicating the likely date of return to work. In maternity cases, the first notice of that nature must be given no later than eight weeks following the end of the pregnancy; 4) when receives notice within one year following the date of temporary lay-off that she may return to work and does not return, nor gives a satisfactory explanation within two weeks; 5) is absent from work without any satisfactory explanation, following the end of any period of leave that the Company may have given; 6) is absent from work for a continuous period for more than one year, for any reason other than a leave awarded earlier or an absence due to a compensated accident. Id.
The last Temporary Employment Contract signed by Hernández was for a three month term, beginning on January 11, 2001, and ending on April 20, 2001 ( Docket No. 89, Ex. 11). Hernández had been working in the Assembly Department, but when the three month contract was signed she was advised that there was no need for her in that department and Hernández was offered a position in the Molding Area ( Docket No. 89, Ex. 5). The memo, dated January 11, 2001, is written on Caribe GE Industrial Systems letterhead ( Docket No. 104, Ex.). She accepted the position, but the transfer did not take place and she remained working in the Assembly Department ( Docket No. 89, Ex. 4, Docket No. 104, Ex. E). Hernández explained that she accepted the position in the Molding Area because she had no other choice ( Docket No. 89, Ex. 4).
Hernández had a second leave from work as a result of pregnancy related complications beginning on March 10, 2001. Stipulated Fact No. 4. Her pregnancy was considered "high risk" ( Docket No. 89, Ex. 21). She gave birth on April 12, 2001, and was unable to work until June 14, 2001, receiving SINOT benefits through June 14, 2001. Stipulated Fact Nos. 5, 6; Docket No. 89, Ex. 14, Docket No. 104, Ex. 23.
During her deposition, Hernández testified that she spoke to Ríos about returning to work two days before her SINOT benefits were due to expire ( Docket No. 89, Ex. 4). According to Hernández, Ríos told her "the doctor is going to be in, but since there is `lack of work', go to unemployment". Id. Hernández responded that "was fine" and she reported to claim unemployment benefits the next day. Id. Hernández testified that she and Ríos did not discuss the contract, but acknowledged during her deposition, knowing that the previous contract had expired. Id. Hernández's sworn statement before the Anti-Discrimination Unit states that she was told by Ríos to go to the unemployment office because she had "been fired" ( Docket No. 89, Ex. 21). On June 14, 2001, Hernández sought and was awarded unemployment benefits. Stipulated Fact Nos. 11, 12.
Ríos testified that she did not recall telling Hernández to go the Unemployment Office ( Docket No. 89, Ex. 3). However she also testified that the temporary employees know that when their contract is terminated they are entitled to claim and receive unemployment benefits. Id. Ríos did not deny that Hernández reported her readiness to work as soon as her SINOT coverage or leave was over. Nor could Ríos recall if Hernandez had called her following termination of her pregnancy to say she wanted to return to work. Id. Ríos recalled trying to contact Hernández after her contract expired to ask her to come back to work. Id. She did this by speaking to Hernández's father who worked in the Molding Area. Id. Ríos told Hernández's father to ask Hernández to come in, that there was a position available and she needed to talk to her. Id. Ríos testified that Hernández never called or came by. Id.
Thereafter, Ríos authored a letter on June 28, 2001, that was mailed on July 9, 2001, to Hernández to confirm the conversation she had with Hernández on June 27, 2001. Reportedly, Hernández had been offered a position in the Molding Area, and that Hernández had refused the position because she suffered from asthma ( Docket No. 78, Ex. 17). The letter is written on Caribe GE Products Inc. stationary. Id. The letter was sent certified mail, but was "Returned to Sender" "unclaimed/refused". Id. The first notice was dated July 11 and the second notice dated July 26, 2001. Id.
Ríos testified that when a person is employed, the company assigns to that person an employee number and that number rises with the dates ( Docket No. 89, Ex. 3). The number is assigned in the order that the person is hired. Id. For temporary employees, seniority was based upon the hiring date. Id. According to Ríos, when assigning employees to positions, that date is used for seniority purposes. Id. For example, Ríos explained that a seniority system for temporaries was used when they had to lay off employees with an active contract. Id. This same system was used for regular employees. Id. Ríos testified that if a temporary contract ended and then the person came back to work, a new number was not assigned, and the same number was used. Id. Eliminating positions was done through the parameters that the manager and the plant manager would take ( Docket No. 97, Ex. C).
Ríos also testified that the company policy as to temporary contracts was that the contract was open until it expired ( Docket No. 89, Ex. 3). On the day that it was finished, if the person was on medical/sick leave, the person was notified by the nurse of its expiration. Ríos explained that when a contract expired while a person was on maternity leave, she would be "left out", but would be paid her benefits ( Docket No. 97, Ex. C). Ríos testified that when a pregnant employee is on leave, her position is filled by a temporary employee, but when the pregnant employee returns, she gets her position back if her contract is active ( Docket No. 89, Ex. 3). If the contract is not active and the contract has expired, then the person comes back as soon as a position is available. Id. This could be two, three or more months, after, even if there is a seniority dating back to 1998. Id. Ríos further explained that a contract cannot be renewed if a person is not there, and when a contract expires that person or employees is taken off the records, no matter what type of leave he/she is on. Id. Ríos summarized this by saying "once the contract expired, it expired" . Id.
One of the policies of the company was that if a person with a temporary contract was on leave for any reason and the contract expired, they were "out" ( Docket No. 97, Ex. C). This explanation was part of the orientation that nurses would give and Ríos believed that there was a Form signed that also indicated this. Id. Ríos testified that she had concerns about the temporary employees in that some of the temporaries were long time employees although they were characterized as temporary, and those employees were not receiving the entire set of benefits available ( Docket No. 89, Ex. 3). She was told that was company policy. Id. When the person was ready to come back the person would be rehired inasmuch as their expertise was needed. Id.
The Form was not provided to the Court.
Ríos explained that the plan was to take persons from the temporary ranks and make the positions regular ( Docket No. 89, Ex. 3). The problem was that the regular positions were for the second and third shifts and most of the temporaries worked during the day shift and did not want to work the other shifts, even if it meant a regular or full-time position. Id.
The defendants submitted several "Maternity Leave Tables", covering the period from January 1998 through December 2003 ( Docket No. 89, Exs. 14, 20, Docket No. 86, Docket No. 78, Ex. 13). Of the 27 women listed, the temporary contracts of four expired while they were on maternity leave, with one of those women being Hernández ( Docket No. 86). Two of those contracts expired in 1999 and the other two contracts expired in 2001 (i.e. Employees No. 7, 10, 16, 18). Id. One Regular Employee resigned while on maternity leave in 2003 and another Regular Employee was laid-off during her leave in 2001 (Employee Nos. 9, 17). Id. Other than Employee No. 9 who resigned, from 2002 through December 2003, women taking pregnancy leave remained on active status, except for one woman who went on long term disability ( Docket No. 86). Defendants indicated that five pregnancy discrimination cases have been filed before the Anti-Discrimination Unit: that of plaintiff, Ana Martínez (an active employee), Glorimar Lozada (contract expired while on maternity leave), Janice López (a laid off regular employee), and Yira Pérez (laid off and never returned to work) ( Docket No. 89, Ex. 13). Ríos testified that she never became aware or was knowledgeable of any pattern that the company engaged in regarding temporary pregnant women ( Docket No. 89, Ex. 3).
Ríos, testified that she was aware of two prior pregnancy discrimination claims brought against Caribe GE. She also made reference to an employee who had twins (Employee No. 9), who returned after her pregnancy, but whose position was later eliminated. The Defendants' table indicates that Employee No. 9 did not return to work following her second pregnancy and that she resigned.
Human Resources conducted head counts on a weekly basis and provide the reports to the general manager in Puerto Rico ( Docket No. 78, Ex. 3). Ríos did not recall any special circumstances surrounding the plant and its need for temporary employees during the year 2001, but explained that in the middle of the year there was a need for temporary employees, based upon increased sales ( Docket No. 89, Ex. 3). The number of temporaries needed depended upon the sales of the plant. Id. In terms of layoffs the list of temporary employees was reviewed and in most cases the last hired (those in Molding) were laid off and people in assembly who had more seniority would be offered the molding position if they wanted it. Id. For those with seniority there were two choices — go to molding or go on layoff. Id. She testified that in perhaps June or July there were layoffs of temporary employees. Id. Temporary employees listed on the "hired the week ending date June 3, 2001" sheet had seniority dates ranging from January 7, 1998 to February 19, 2001 ( Docket No. 89, Ex. 9).
Victor Alberto Aguilar (hereafter "Aguilar"), the current Plant Manager at Caribe GE Humacao, recalled approving a personnel reduction in 2001 ( Docket No. 78, Ex. 2). He explained that a reduction in force occurs over an extended period of time, and that a reduction is based upon economic indicators. Id. He recalled a sizable reduction in the fourth quarter of 2001 of over ten percent, and that it occurred through a six-month period into 2002. Id. Decisions made regarding the workforce required an analysis of financial and business factors to determine the operation needs for the plant and its departments on the basis of economic indicators ( Docket No. 78, Ex. 2). Caribe GE states that "it did not consider any statistical data and/or performance evaluations of other employees to determine the non-renewal of plaintiffs' temporary employment contract" ( Docket No. 89, Ex. 13).
Aguilar testified that when he arrived in Puerto Rico the name of his employer was General Electric Distribution Components in Puerto Rico, Humacao Plant, but was later changed ( Docket No. 89, Ex. 20). The name has changed many times and he refers to the plant as the Humacao Plant. Id. Hernández's withholding statement for the year 2000 indicates that her employer is Caribe GE Distribution Components, Inc. in Bayamón, PR ( Docket No. 89, Ex. 22). However an earnings statement for 2001 identifies Caribe G.E. Distribution Components, Inc. in Humacao, Puerto Rico as the employer ( Docket No. 89, Ex. 29). The 2002 withholding statements lists the company as Caribe GE International Electric Meters Corp. in Bayamon, Puerto Rico ( Docket No. 89 Ex. 23). Also, a tax statement dated April 3, 2002, names the employer as Caribe GE Distribution Compo ( Docket No. 89, Ex. 30).
There is also on record a letter from Legal Counsel for GE Puerto Rico Operations, dated July 2, 2002, which refers to the alleged discriminatory conduct on the part of Caribe GE International Electric Meters Corp. against Hernández ( Docket No. 89, Ex. 24). Counsel's address is at the Minillas Industrial Park, like the addresses of Caribe GE Distribution Components, Inc. and Caribe GE International Electric Meters Corp. Also, the Group Benefits Plan has a GE logo on the front page and the contents refer to General Electric in Puerto Rico ( Docket No. 89, Ex. 26). The contents further state, "The Company has contracted the services of the Puerto Rico Blue Cross to administer the Integrated Health Plan for the affiliates of General Electric in Puerto Rico". Id. A Human Resources newsletter has the logo for GE Industrial Systems and speaks to the Absenteeism Policy for GE Humacao ( Docket No. 89, Ex. 27).
The Court was not provided with the definition of "Company" as it appears in the benefits book.
The web page for GE Industrial System indicates that the headquarters for the same is in Connecticut ( Docket No. 89, Ex. 28). The web site refers to its 140 major manufacturing facilities and over 300 sales and service offices with approximately 40,000 employees worldwide. Id. The web site for GE Industrial Systems refers to the GE Consumer Industrial business and indicates that this business was created in January 2004 when GE Consumer Products merged with GE Industrial Systems ( Docket No. 97, Ex. F). It does not make reference to Caribe GE International Electric Meters Corp.
Jeff Sommer, is the current President and General Manager of Caribe GE International Electric Meters and has been so since March 15, 2001 ( Docket No. 78, Ex. 21). He is on the payroll of GE, but is also an employee of Caribe GE. Id. He states that all his actions are taken as President and General Manager of Caribe GE, not as an employee of GE. Id. He is not an officer of GE, and his day-to-day decisions need not be authorized by GE. Id.
Caribe GE is a Puerto Rico corporation with its principal place of business in Puerto Rico. Id. It maintains its accounting concerns, has its own property and equipment in Puerto Rico, and runs its own payroll, independent of GE. Id. Except for Sommer, none of Caribe GE's employees are GE employees. Id. Decisions regarding employee relations are made by Caribe GE without participation. from GE. Id. Caribe GE has its own human resources department and personnel. Id. All decisions regarding Hernández's employment with Caribe GE were made exclusively by it, without the intervention or participation of GE. Id. "General Electric Company does not direct, instruct or advise Caribe GE regarding human resources. GE's role in the personnel matters of Caribe GE is limited to establishing general directives regarding employment which are normal incidents of ownership" ( Docket No. 89, Ex. 13).
Hernández filed a charge before the anti-discrimination unit on February 19, 2002, against Caribe GE Distribution Components, Inc. ( Docket No. 78, Ex. 18). In her sworn statement which was attached to the charge, she indicates that employer is also known as General Electric International Electronic Meters Corp, in Humacao, Puerto Rico, GE Distribution Components, Inc. in Humacao, Puerto Rico, Minillas Industrial Parts, in Bayamón, Puerto Rico and Caribe GE Products, Inc., in Humacao, Puerto Rico. Id. She states that when she called the company to tell them she was returning to work, Ríos told her to go to Unemployment because Hernández had been dismissed/fired, and that she never received a formal dismissal letter. Id. The Puerto Rico Anti-Discrimination Unit closed the case due to lack of interest by the moving party on December 4, 2002 ( Docket No. 78, Ex. 19). The EEOC issued a right to sue letter on March 5, 2003, and issued a second right to sue letter on April 16, 2003. Stipulated Fact Nos. 8, 9. The EEOC Right to Sue letter was copied to Caribe GE Distribution Components, General Electrical International GE Distribution in Humacao, Puerto Rico ( Docket No. 78, Ex. 20).
III. Analysis
A. Legal Standard
Summary judgment is appropriate when the evidence before the court shows that "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)." Seaboard Sur. Co. v. Greenfield Middle Sch. Bldg. Comm., 370 F.3d 215, 218 (1st Cir. 2004). When ruling on a motion for summary judgment, the court "must scrutinize the evidence in the light most agreeable to the nonmoving party, giving that party the benefit of any and all reasonable inferences. Cox v. Hainey, 391 F.3d 25, 27 (1st Cir. 2004). While carrying out that task, the Court safely can ignore "conclusory allegations, improbable inferences, and unsupported speculation." Suárez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
An issue is "genuine" for purposes of summary judgment if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and a "material fact" is one which "might affect the outcome of the suit under the governing law." Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The nonmovant bears "the burden of producing specific facts sufficient to deflect the swing of the summary judgment scythe." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). Those facts, typically set forth in affidavits, depositions, and the like, must have evidentiary value; as a rule, "[e]vidence that is inadmissible at trial, such as inadmissible hearsay, may not be considered on summary judgment." Vázquez v. López-Rosario, 134 F.3d 28, 33 (1st Cir. 1998). Finally, it is well settled that "[t]he mere existence of a scintilla of evidence" is insufficient to defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252.
B. Exhaustion of Administrative Remedies
Defendants argue that GE was not Hernández's employer. They also contend that she failed to exhaust administrative remedies with respect to GE inasmuch as, it was not a party to the administrative proceedings before the Anti-Discrimination Unit. The defendants also contend that the "single employer" doctrine does not apply because Caribe GE and GE are separate corporate entities, GE has no involvement in the day-to-day operations of Caribe GE, and GE has no involvement in matters related to Hernández's employment. Defendants rely heavily upon the sworn statement of Mr. J. Sommer to support their position.
Hernández argues that Defendants merely rehash the arguments they raised in the previously filed motions to dismiss. More so, they refer to Mr. Sommer as a "mystery employee" who was deliberately concealed by defendants and asks the Court to strike his sworn statement. The undersigned declines to do so inasmuch as, it is evident from reviewing the defendants' answers to interrogatories that Mr. Sommer's name is contained in several of the answers to plaintiff's interrogatories, and that he also signed the document, which as been disclosed as part of the litigation.
Hernández argues that there is a clear identity of interest between GE and Caribe GE and as such, GE may be sued notwithstanding the fact that it was not included in the administrative charge. She argues that there was a confusion of identities referring to GE Industrial Systems, GE Humacao, GE Distribution Components, Inc. and Caribe GE International Electric Meters. She also notes that she referred to all of these entities in her complaint before the Anti-Discrimination Unit.
Failure to name a party in the EEOC complaint precludes a later civil action against that party. See McKinnon v. Kwong Wah Rest., 83 F.3d 498, 505 (1st Cir. 1996). There are, however, three recognized exceptions to this rule: (1) if there was a substantial identity between the respondent named in the EEOC charges and defendants in the civil action; (2) if the named respondent acted as the agent of the defendant sought to be included in the civil action, at least when the latter defendant had notice of an participated in the conciliation proceedings and (3) if the defendant is an indispensable party under Fed.R.Civ.P. 19 in order to accord complete relief to all the parties. Id. (citing Currán v. Portland Superintending Sch. Comm., 435 F.Supp. 1063, 1074 (D.Me. 1977)).
It is undisputed that GE was not included in any of the administrative charges filed before the Anti-Discrimination Unit. Nonetheless, Hernández argues that there is a clear identity of interest among GE, as the parent company, and the other named defendants who were included in the administrative action. Defendants disagree arguing that Caribe GE and its parent company GE are separate corporate entities.
Although the First Circuit Court of Appeals has not ruled on the proper test to be utilized in determining employer status under Title VII, it has referred to the integrated-enterprise test, the corporate law "sham test" and the agency test. Romano v. U-Haul Int'l, 233 F.3d 655, 664-65 (1st Cir. 2000). The integrated-enterprise test is applied by a majority of circuits that have reached this issue. Id. at 665. Under the integrated-enterprise test, two entities may be sued as a single employer if the following four factors are present: interrelation of operations, common management, centralized control of labor operations, and common ownership. Id. at 666. Also, factors such as sales, marketing, and advertising may be considered under the interrelation of operations prong, insofar as they establish direct parental involvement in the subsidiary's daily decisions. Id. at 667. Control over employment decisions is a primary consideration in evaluating employer status. Id. at 666. The First Circuit considers the extent to which the parent corporation exerts "an amount of participation [that] is sufficient and necessary to the total employment process, even absent total control or ultimate authority over hiring decisions." Romano, 233 F.3d at 666 (citations omitted). Under the control of labor relations prong, the critical question is which entity made the final decision regarding the employment matters of the person claiming discrimination. Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995).
Defendants proffered the sworn statement of Sommer to support their position that GE is not the employer of Hernández and that there is no commingling between any of the GE subsidiaries and the parent GE Corporation. The fact remains that Caribe GE is a Puerto Rico corporation with its principal place of business in Puerto Rico. It maintains its accounting activities; has its own property and equipment in Puerto Rico, and runs its own payroll, independent of GE. Except for Sommer, none of Caribe GE's employees are GE employees. Decisions regarding employee relations are made by Caribe GE without participation from GE. Caribe GE has its own human resources department and personnel. All decisions regarding Hernández's employment with Caribe GE were made exclusively by it, without the intervention or participation by GE. Notably, Hernández's own testimony is that she dealt solely with Ríos, the Human Resources Director in Humacao. More so, Ríos the former Human Resources Manager at Caribe GE testified at her deposition that while she received general e-mails from Central Office in upstate New York on items such as corporate name changes, when a company was purchased, and general company information, she did not receive written instructions, on any issue; from the States. Actually, she did not have a counterpart in the United States regarding human resource matters.
Hernández did not refute the contents of the sworn statement provided by Sommer or the testimony of Ríos as to the above. Regardless, in an effort to defeat summary judgment she argues that there was a confusion of names as to GE. However, it remains true that Hernández did refer to a number of GE entities in her complaint before the Anti-Discrimination Unit. Interestingly, all of these entities had addresses in Puerto Rico. To get around this, Hernández argues that GE has the same address in Bayamón as Caribe GE Products. The record does not support her position and it is unclear how plaintiff arrived at such conclusion. Indeed, none of the exhibits she relies upon, Plaintiff's Exhibits 21-24, refer to the parent company GE or its physical address. The affidavit provided to the Anti-Discrimination Unit (Plaintiff.'s Ex. 21) makes no reference to GE. Plaintiff's Exhibit 22, a withholding statement, refers to Caribe GE Distribution Components, Inc. and makes no reference to the parent company. Withholding statements for 2002 (Plaintiff.'s Ex. 23) refer only to Caribe GE International Electric Meters Corp. Finally, a letter from general counsel for GE Puerto Rico Operation makes no reference to the parent company, but instead refers to Caribe GE International Electric Meters Corp. (Plaintiff.'s Ex. 24). More so, counsel's address is at the Minillas Industrial Park, like the addresses of Caribe GE Distribution Components, Inc. and Caribe GE International Electric Meters Corp.
Hernández also points to several other documents to support her position that Caribe GE and GE are a single employer. These documents include: (1) a tax statement dated April 3, 2002, that names the employer as Caribe GE Distribution Compo; (2) the Group Benefits Plan that has a GE logo on the front page and the contents refer to General Electric in Puerto Rico; (3) a Human Resources newsletter that has the logo for GE Industrial Systems and speaks to the Absenteeism Policy for GE Humacao and (4) the web page for GE Industrial System that states that the headquarters for GE Industrial System is in Connecticut.
Granted, there may be confusion as to the name of the corporate operations in Puerto Rico. The point is, Hernández sued General Electric Company, alleging it is the parent company of Caribe GE. There is no confusion over General Electric Company's name or its address. Though there may be confusion regarding the Caribe GE company name, this confusion is not equal to a finding that GE and Caribe GE are the single employer of Hernández. Quite simply, the record does not support a finding that GE exerts `an amount of participation [that] is sufficient and necessary to the total employment process, even absent total control or ultimate authority over hiring decisions. See Romano v. U-Haul International, 233 F.3d at 665-666. This being the case, there is no substantial identity between Caribe GE and GE.
Even construing the facts in the light most favorable to the plaintiff, these are not sufficient to defeat summary judgment. Hernández cannot bring this action against GE when she did not name or even mentioned it in her charges before the Anti-Discrimination Unit. Based upon the foregoing analysis, it is RECOMMENDED that the Motion for Summary Judgment be GRANTED and that GE be DISMISSED as a party defendant in this action.
C. Pregnancy Discrimination Act
The Defendants argue that they are entitled to summary judgment on Hernández's main claim of discrimination because of her pregnancy. Their position is that Hernández fails to establish a prima facie case of discrimination. They also argue that there are legitimate, non-discriminatory reasons for the termination of her employment with GE and further that she failed to bring forth any evidence of pretext or discriminatory motive.
The Pregnancy Discrimination Act of 1978 amended Title VII to protect women from discrimination on the basis of childbirth, pregnancy, and related medical conditions. 42 U.S.C. § 2000e(k). Vázquez-González v. K-Mart Corp., 940 F. Supp. 429, 434 (D.P.R. 1996). Hence, it is well settled under Title VII that an employer may not discharge an employee based on the categorical fact of her pregnancy. Smith v. F.W. Morse Co., Inc., 76 F.3d 413, 423 (1st Cir. 1996). "By the same token, since a short-term inability to work is bound up with the very nature of pregnancy and childbirth, that disability is a pregnancy-related condition within the meaning of 42 U.S.C. § 2000e(k), and Title VII thus prohibits an employer from dismissing an employee in retaliation for taking an authorized maternity leave. Id. at 424. An employer, however, may discharge an employee while she is pregnant if it does so for legitimate reasons unrelated to her pregnancy. Id. Accordingly, "an employer may discharge an employee while she is on a pregnancy-induced leave so long as it does so for legitimate reasons unrelated to her gravidity." Id. Based on the foregoing, the First Circuit Court of Appeals has concluded that "Title VII mandates that an employer must put an employee's pregnancy (including her departure on maternity leave) to one side in making its employment decision — but the statute does not command that an employer bury its head in the sand and struthiously refrain from implementing business judgments simply because they affect a parturient employee." Id. Indeed, Title VII requires a causal nexus between the employer's state of mind and the protected trait — pregnancy. Id. at 425.
A Title VII sex discrimination claim may be proven with direct evidence of discrimination, such as "an admission by the employer that it explicitly took the actual or anticipated pregnancy into account in reaching an employment decision." F.W. Morse, 76 F.3d at 421. "Such `smoking gun' evidence is rare, but sex discrimination may also be proven with circumstantial evidence." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000) (citing Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 428-29 (1st Cir. 2000)).
Here, Hernández contends that there is direct evidence of discrimination and as a result she is relieved from the burden shifting doctrine outlined in McDonnell Douglas. Hernández refers to the deposition testimony of Ríos to support her position. More particularly, Hernández relies upon her interpretation of Ríos' testimony regarding the policy of employees whose contract expires while they are on leave. According to Hernández, Ríos testified that the policy for employees who had purported temporary contracts that went on maternity leave was to terminate those employees.
Hernández makes inferences and conclusions from Ríos' testimony. What Ríos actually testified to, is that regardless of the type of leave taken, be it maternity leave or otherwise, if a temporary contract expired while an employee was on leave, the employee was "out". Her testimony indicates that Ríos' concern was not about the termination of the employees, but rather that employees who had multiple temporary contracts and were employed long term were not receiving full benefits. The other evidence on record is not direct evidence of pregnancy discrimination.
Hernández's alternative argument is that under the burden shifting analysis of McDonnell Douglas she has set forth a pregnancy discrimination claim sufficient to defeat summary judgment. When there is not direct evidence of discriminatory motive, and a claim is analyzed considering circumstantial evidence, Courts apply a three-stage, burden-shifting framework as outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This analysis "is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Burdine, 450 U.S. at 255 n. 8. To establish the existence of a prima facie case Hernández must show that: (1) she is pregnant (or has indicated an intention to become pregnant), (2) her job performance has been satisfactory, but (3) the employer nonetheless dismissed her from her position (or took some other adverse employment action against her) while (4) continuing to have her duties performed by a comparably qualified person. F.W. Morse, 76 F.3d at 421; see also Gorski v. New Hampshire Dep't of Corr., 290 F.3d 466, 475 (1st Cir. 2002). Once a prima facie case is established, then at the second stage, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action. Hicks, 509 U.S. at 506-07; McDonnell Douglas, 411 U.S. at 802; Rodríguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 19 (1st Cir. 1999).
The employer's burden is merely a burden of production; the employee maintains the burden of proof throughout. Hicks, 509 U.S. at 507. If the employer meets its burden, the presumption of discrimination evaporates. Id. If the employer presents a legitimate and non-discriminatory reason for its action, then at the third stage the burden shifts back to the plaintiff, at which time she must show that the reason advanced by the employer is merely a pretext for intentional discrimination based on her pregnancy. See Hicks, 509 U.S. at 507-508); Rodríguez-Cuervos, 181 F.3d at 19.
At the initial stage, plaintiffs' burden is minimal. Alvarez-Cabrera v. Trataros Constr., Inc., 184 F.Supp. 2d 149, 152 (D.P.R. 2002) (citing Oliver v. Digital Equip. Corp., 846 F.2d 103, 108 (1st Cir. 1988)). Hernández has obviously established three facets of a prima facie case: She was pregnant, her job performance reviews were satisfactory, and there was a continuing need to have her duties performed by a comparably qualified person. Defendants argue that Hernández did not suffer from an adverse employment action. To the contrary, construing the evidence in the light most favorable to plaintiff, the same reveals that Hernández's seniority status was decreased and she was dismissed from her position. Initially, the undersigned notes that it is undisputed that Hernández did not return to work at Caribe GE following her maternity leave. Defendants state this is so because her contract expired while she was on leave. In support of their position defendants cite Gourdine v. Cabrini Med. Ctr., 307 F.Supp.2d 587 (S.D.N.Y. 2004), aff'd in part, vacated in part, 128 Fed.Appx. 780 (2d Cir. 2005), and indicate that it stands for the proposition that there is no adverse employment action where a plaintiff was employed under the limited terms of a contract which expired. Defendants, however, omit a crucial part of the analysis, that there was no adverse employment action, absent any factual allegations that would lead to a reasonable inference that the employer discriminated against her. Id. at 595.
Hernández argues she was subject to three adverse employment actions: transfer to the undesirable Molding Department, a change in her seniority status and her ultimate discharge, all due, allegedly, to her pregnancy. Nonetheless, the facts before the Court do not support an adverse employment action in the form of a transfer for one simple reason. The transfer never took place.
The cognizable evidence viewed in the light most favorable to Hernández does demonstrate that there were two adverse employment actions. Her seniority status was changed from December 21, 1989, to December 11, 2000. Defendants explain this by stating Hernández's employment was not continuous and uninterrupted and there was a period of time that she was not under contract. The evidence is that in terms of seniority and layoff; temporary employees were treated the same as regular employees. Hernández worked continuously from December 21, 1998 to September 21, 2000, all while employed under temporary employment contracts until November 30, 2000. The evidence further shows that during the ten day period between the expiration of the July 31, 2000 to November 30, 2000 contract and the commencement of the December 11, 2000 contract, Hernández was on SINOT leave due to pregnancy related problems, and that the defendants were aware of such facts. More so; defendants make no reference whatsoever to the Associates Handbook, the criteria set forth therein for the elimination of seniority status and how it applied or did not apply to Hernández. Assuming that it applies to Hernández, and there being nothing before the Court to indicate that it does not, none of the stated reasons for a loss of service credits or of continuity of service warrant a change in her seniority date. What is clear is, that the change in plaintiff's seniority status occurred during the time Hernández took leave due to her pregnancy.
More so, the undisputed facts are that Hernández's temporary employment contract was repeatedly renewed and she worked continuously for close to two years. Ríos referred to employees in Hernández's position as "long term employees". Notably, it was not until she was on extended maternity leave that the contract was not renewed. There are many issues of fact surrounding this issue. Ríos testified that when a temporary employee was ready to come back to work they were regularly hired because their expertise was needed. Hernández claims she called Ríos and indicated she was ready to return to work but instead was told she had been fired and to report to claim unemployment benefits. The Defendants claim that she was not terminated but that her contract rather expired, and that she was not told to apply for unemployment benefits. Defendants also claim that Hernández was offered a position, but that she refused the same. The time-line surrounding the events gives one pause. Hernández testified that she spoke to Human Resources representatives two days before her SINOT was due to expire. This would be on or about June 12, 2001. In line with her testimony she applied for unemployment benefits on June 14, 2001. Conversely, Ríos testified that she offered Hernández a position. A letter under Ríos signature and dated June 28, 2001, indicates that she is confirming a conversation, had with Hernández on June 27, 2001, wherein Hernández was offered and refused a position. According to the letter the conversation took place some two weeks after Hernández had applied for unemployment benefits. The letter was not mailed until July 9, 2001, and it was never received by Hernández.
Viewing the facts in the light most favorable to Hernández the undersigned is satisfied that she met her burden to show she suffered an adverse employment decision and the facts allow for the inference it was so, due to employment discrimination. Accordingly, the undersigned finds that Hernández has set forth sufficient evidence to meet her burden of making a prima facie case.
In turn, to meet their burden of proof Defendants proffer a non-discriminatory reason for Hernández's termination. It is their position that Hernández's employment was governed by the Temporary Employment Contract she entered into with Caribe GE, that her employment was of a temporary nature, and that her employment ended upon the conclusion of the term specified within the contract. The Defendants posit that is the reason for her termination and it just occurred at a time in which Hernández was on a maternity leave and unable to work. They point out that Hernández's temporary employment contract was renewed during the time she was pregnant. More so, they argue that her dismissal was not the result of her pregnancy, but rather the circumstances of Caribe GE's business that caused fluctuation of personnel in line with fluctuation of its operational needs and market demands. The defendants point to the court that even though Hernández's employment contract expired, her SINOT benefits did not and were paid by Caribe GE for a time outside of her contract period.
Under this scenario, the burden shifts back to Hernández to show that the Defendants' stated reasons were pretextual.
Satisfying this third-stage burden does not necessarily require independent evidence of discriminatory animus. In a proper case, the trier may infer the ultimate fact of discrimination from components of the plaintiff's prima facie showing combined with compelling proof of the pretextual nature of the employer's explanation. Where, as here, the case arises on the employer's motion for summary judgment, the plaintiff's task is to identify a genuine issue of material fact with respect to whether the employer's stated reason for the adverse employment action was a pretext for a proscribed type of discrimination.Rathbun v. AutoZone, Inc., 361 F.3d 62 72 (1st Cir. 2004) (citations omitted).
Initially, the undersigned notes that the record contains certain statements Hernández's supervisor made to her during her pregnancy. For example, he would tell her to "go cry to maternity". Defendants discount these statements arguing that they do not refer to her pregnancy but rather to her complaining. They argue that even if remarks are suggestive of a bias against pregnant women, they are but stray remarks made by a non-decision maker. As is well established, "[w]hile perhaps probative of discrimination, stray remarks do not satisfy a plaintiff's burden of proving discrimination by direct evidence." See Ayala-Gerena v. Bristol Myers-Squibb Co. 95 F.3d 86, 96 (1st Cir. 1996). Hernández did not respond to Defendants argument regarding these comments nor does she contend that they are evidence of discrimination. Accordingly, they are not considered, all while taking into consideration that the comments appear to have been made by a non-decision maker.
Hernández adduced evidence that her temporary contracts were continuously renewed for over a two year period. She also adduced evidence that she was terminated upon completion of her maternity leave. Hernández argues that her termination after completing maternity leave is consistent with the Defendants' policy of terminating pregnant women who were on maternity leave. According to Hernández, in mid 2001 there were work periods with high volume in sales and the company was in need of employees during that time, as such, there was a need for additional temporary employees because of its high sales volume.
Hernández points out that the five temporary employees who were on maternity leave from 1998 through 2003 were either laid-off, not recalled, their contract expired or they resigned. The one temporary employee who returned has filed a pregnancy discrimination complaint. However, the records shows that four of the five temporary pregnant women were not issued contracts that extended beyond their maternity leave.
Defendants argue that the evidence is that out of 19 women who were on maternity leave from January 1998 through December 2001, the temporary contracts of four of those women expired while they were on said leave. Also one woman resigned during her leave and another was laid off during her leave, leaving 12 women who returned to work without any problem. According to Defendants this does not show a pattern of discrimination. While Defendants may believe this to be true, this is a fact at issue that cannot be determined at this stage of the proceedings.
The evidence also is that twelve of the regular employees who went on maternity leave had been temporary employees whose status was converted to a regular employee and maternity leave was taken while on regular status. Two employees who were temporary, were converted to regular status while either pregnant or after their return from maternity leave, but this occurred after a pregnancy discrimination complaint has been filed against Caribe GE.
Noteworthy is that during the discovery process defendants admitted that five pregnancy discrimination complaints have been filed against them at the Anti-Discrimination Unit. It goes without saying that although this is not determinative of discrimination, it certainly raises the specter of discrimination.
Also, as discussed above, these remains a genuine issues of material fact regarding the change in Hernández's seniority status; why it happened, when it happened. Finally, in dispute is the issue of Hernández's termination. It happened contemporaneously with her final maternity leave. And, as discussed above, there are many disputed issues of fact regarding the termination or non-renewal versus offer of job and no job offer.
Hernández has many avenues of evidence available such as "evidence of differential treatment, evidence of discriminatory comments, statistical evidence, and comparative evidence." Rathbun, 361 F.3d at 72 (citations and internal quotation marks omitted). She has succeeded in demonstrating the existence of trial worthy issues with respect both to her prima facie case and her ultimate burden of proving that the Defendants' stated reasons were a pretext for pregnancy discrimination such that summary judgment is inappropriate.
Accordingly, it is RECOMMENDED that the Motion for Summary Judgment on the issue of discrimination under the Pregnancy Discrimination Act be DENIED.
D. Supplemental State Claims: Acts 100 and 69.
As a general rule, where the district court dismisses the federal claims before trial, the court should dismiss the state law claims without prejudice. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995). The Defendants contend summary judgment is proper on the basis that there is an absence of discriminatory motive. Here, the undersigned did not recommended summary judgment as to the Title VII pregnancy discrimination claim inasmuch as, there remain genuine issues of material facts. As is well-known, the analysis for discrimination claims brought pursuant to Acts 100 and 69 is in part similar to those brought under Title VII and under that theory it has been determined that there remains an issue of fact regarding discriminatory motive. Therefore, it is RECOMMENDED that the Motion for Summary Judgment as to the supplemental state claims brought under Acts 100 and 69 be DENIED.
E. SINOT
Defendants also move for summary judgment as to Plaintiff's SINOT claim. They argue that her termination is not covered by the Act as she did not request SINOT benefits until after her contract had expired. According to defendants, Hernández was not under a covered leave when her employment terminated and she does not have a cause of action. They also argue that she has failed to establish that employment existed at the time she requested reinstatement. Conversely, Hernández argues that SINOT statutory provisions were violated when she was discharged from her employment and her employer did not reserve her position for one year from the onset of disability.
Under SINOT, 11 P.R. Laws. Ann. §§ 201 a worker is given certain monetary benefits to attenuate the loss of wages when that worker is unable to perform the duties of his or her job due to injury or illness unrelated to employment. Escobar-Galíndez v. Ortho Pharm., 328 F.Supp.2d 213 (D.P.R. 2004) (citing Meléndez-Rivera v. Asociación Hosp. del Maestro, 2002 WL 1033747, 2002 TSPR 60 (2002)). SINOT provides in pertinent part that
(q) Reinstatement after disability. — In cases of disability for work pursuant to the provisions of this chapter, the employer is compelled to protect the employment position held by the worker at the onset of the disability and to reinstate him/her in the same position, subject to the following conditions:
(1) That the worker petition the employer to be reinstated in his/her employment position within the term of fifteen (15) days, from and after the date the worker was discharged from the hospital, provided said petition has not been made after a lapse of one (1) year from the date of onset of the disability;
(2) that the worker is mentally and physically capable to discharge said employment at the time of requesting such reinstatement from the employer; and
(3) that said employment is available when the worker requests reinstatement.
It shall be understood that the employment is available when it is vacant or another worker is engaged therein.
It shall be presumed that the employment was vacant when the same was filled by another worker within the thirty (30) days following the date in which the reinstatement petition was made.
If the employer should fail to comply with the provisions of this subsection, he shall be compelled to pay the worker or his beneficiaries the wages that said worker would have earned if he had been reinstated and the employer shall also be liable for the damages he has caused the worker. The worker or his beneficiaries may initiate and prosecute the proper claim for reinstatement and/or damages through an ordinary action in court or through the procedure for the claiming of wages, established in §§ 3118-3132 of Title 32.
In addition to the requirement that the employment position be reserved for one year, SINOT also enumerates the conditions that must be satisfied for reinstatement: (1) the employee must petition for reinstatement within the term of 15 days from and after discharge provided that the petition is made no later than one year from the onset of the disability; (2) at the time of the petition for reinstatement the employee must be mentally and physically capable of performing the duties of the position; and (3) the employment position must be available. See Meléndez-Rivera v. Asociación Hospital del Maestro, 2002 TSPR 60 (citing 11 P.R. Laws. Ann. § 203(q)).
At this juncture it is inappropriate to grant summary judgment on the basis of Defendants' position that Hernández did not request SINOT benefits until after the contract expired. Granted, she filed her request for SINOT benefits on May 29, 2001, after the term of her contract had expired. Not mentioned is that the certification was made retroactive to cover the period of March 9, 2001 through June 14, 2001, and this time period includes time during which her contract remained in effect. The Defendants also raise the issue that Hernández has not shown that employment existed at the time she requested reinstatement. The undersigned finds the position of the Defendants curious inasmuch as they contend that Hernández was offered a position, but refused the same.
Based upon the foregoing, the undersigned finds summary judgment inappropriate as to the SINOT claim and RECOMMENDS that the motion be DENIED.
F. Puerto Rico Constitution
Finally, Defendants move for summary judgment on the claim brought pursuant to Article 1, § 2 of the Puerto Rico Constitution as it does not present an actionable cause of action. The undersigned agrees. The Puerto Rico Constitution in its pertinent part states that: "The government of the Commonwealth of Puerto Rico shall be republican in form and its legislative, judicial and executive branches as established by this Constitution shall be equally subordinate to the sovereignty of the people of Puerto Rico."
In response Hernández now argues she is entitled to relief under Article II, § 1 of the Puerto Rico Constitution. The Amended Complaint does not seek relief under such constitutional provision, and her argument is not well taken. Therefore, it is RECOMMENDED that the motion for summary judgment as to the claim brought pursuant to Article 1, § 2 of the Puerto Rico Constitution be GRANTED.
G. Act 3 — Working Mother's Act
The Amended Complaint does not seek relief pursuant to the Working Mother's Act, Act 3 of March 13, 1942, as amended, 29 P.R. Laws Ann § 467. Nevertheless, in her opposition to defendants' motion for summary judgment, plaintiff argues that she is entitled to relief under the Working Mother's Act. Defendants did not seek summary judgment under this statute because no claim is brought against them under this statute. Since this claim is not properly before the Court, the undersigned disregards plaintiff's argument.
IV. Conclusion
Based upon the foregoing analysis, IT IS THEREFORE RECOMMENDED that the Motion for Summary Judgment ( Docket No. 78) be GRANTED in part and DENIED in part as follows:
(a) that the Summary Judgment be GRANTED in favor of General Electric Company, and that it be DISMISSED as a party defendant in this action;
(b) that the Motion for Summary Judgment on the issue of discrimination under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e et seq. be DENIED;
(c) that the Motion for Summary Judgment as to the supplemental state claims brought under Acts 100 and 69 be DENIED;
(d) that the Motion for Summary Judgment as to the SINOT claim be DENIED; and,
(e) that the Motion for Summary Judgment as to the claim brought pursuant to Article 1, § 2 of the Puerto Rico Constitution be GRANTED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(a) of the Local Rules of Court. Any objections to the same must be specific and must be filed with the Clerk of Court within ten (10) days of notice. Rule 72(d), Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to timely file specific objections to the Report and Recommendation waives the right to review by the District Court, and waives the right to appeal the District Court's order. United States v. Valencia-Compote, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). The parties are advised that review of a Magistrate-Judge's Report and Recommendation by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the Magistrate-Judge. Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988).
SO RECOMMENDED.