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In Martinez, the Second Circuit stated "Plaintiffs argue that there must have been age discrimination because they had been successful employees at the Transit Authorities.
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CASE NO. 17-1012 (GAG)
2019-08-13
William Puig MARTINEZ, et al., Plaintiffs, v. Novo NORDISK, Defendant.
Monica L. Vega-Quintana, Monica Vega Law Offices PSC, Ruben T. Nigaglioni, Nigaglioni Law Offices PSC, for Plaintiff. Gregory T. Usera, Usera, Figueroa & Giner, P.S.C., Pedro E. Giner-Dapena, Giner Dapena Law, Melissa C. Rodriguez, Morgan, Lewis & Bockius LLP NY, for Defendants.
Monica L. Vega-Quintana, Monica Vega Law Offices PSC, Ruben T. Nigaglioni, Nigaglioni Law Offices PSC, for Plaintiff.
Gregory T. Usera, Usera, Figueroa & Giner, P.S.C., Pedro E. Giner-Dapena, Giner Dapena Law, Melissa C. Rodriguez, Morgan, Lewis & Bockius LLP NY, for Defendants.
OPINION AND ORDER
GUSTAVO A. GELPI, United States District Judge
William Puig Martinez, Hernan Mendez Nazario, his wife Meralys Colón, and their conjugal partnership (collectively "Plaintiffs") filed suit in state court against Novo Nordisk ("Defendant") alleging unlawful discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 and violation of the Consolidated Omnibus Budget Reconciliation Act ("COBRA") by canceling their benefits (Docket No. 1). Plaintiffs additionally filed claims arising under Puerto Rico's Act No. 100 of June 30, 1959, P.R. LAWS ANN. tit. 29, § 146 et seq . ("Act 100"), Act No. 80 of May 30, 1976, P.R. LAWS ANN. tit. 29, § 185a et seq . ("Act 80"), and Article 1802 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31 § 5139.
On January 4, 2017, Defendant removed this case to this Court under federal question jurisdiction. (Docket No. 1). Pending before the Court is Defendant's Motion for Summary Judgment. (Docket No. 100). After disposing of preliminary matters involving Local Rule 56, the Court GRANTS the motion for summary judgment.
I. Local Rule 56
As a threshold issue the Court must determine whether Plaintiffs' Opposition to the Uncontested Material Facts (Docket No. 110) complies with Local Rule 56. Plaintiffs' opposition statement of uncontested material facts included additional facts in his denials and qualifications of the moving party's facts.
At the summary judgment stage, parties must follow Local Rule 56. Section (c) instructs that "[a] party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts." L. Cv. R. 56(c) (emphasis added). This opposing statement "shall admit, deny or qualify the facts supporting the motion for summary judgment by reference to each numbered paragraph of the moving party's statement of material facts." Id. Each denial and qualification must be supported by a record citation. Id.
In addition to allowing an opposing party to admit, deny, or qualify the moving party's facts, Local Rule 56(c) allows an opposing party to submit additional facts "in a separate section ." Id. (emphasis added). As the First Circuit has stated, "[t]he plain language of the rule specifically requires that additional facts be put forward in a ‘separate section.’ " Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 32 (1st Cir. 2010) (holding that district court acted within its discretion when it disregarded additional facts not contained in a separate section). A separate section serves two purposes: "to allow the moving party to reply to those additional facts and to allow the court to easily determine the disputed facts." Malave-Torres v. Cusido, 919 F. Supp. 2d 198, 207 (D.P.R. 2013). For these reasons, "a party may not include numerous additional facts within its opposition to the moving party's statements of uncontested facts." Id. If a party improperly controverts the facts, Local Rule 56 allows the Court to treat the opposing party's facts as uncontroverted. The First Circuit has consistently held that litigants ignore Local Rule 56 at their peril. See Caban Hernandez v. Philip Morris USA, Inc., 486 F. 3d 1, 7 (1st Cir. 2007).
The line between a properly supported qualification or denial and additional facts can be blurry. Because Local Rule 56 requires that a record citation support each qualification or denial, it can seem inevitable to proffer additional facts when doing so. But a better understanding of what constitutes a qualification or denial helps. A qualification is "[a] modification or limitation of terms or language; esp., a restriction of terms that would otherwise be interpreted broadly." Qualification , BLACK'S LAW DICTIONARY 1436 (10th ed. 2014). Simply put, a qualification must clarify a statement of fact that, without clarification, could lead the Court to an incorrect inference. Thus, if a fact states that "Plaintiff works as an attorney all day," a proper qualification would be: "Plaintiff works as an attorney from 9-5" and a citation to the record supporting this fact. This would prevent the Court from inferring that Plaintiff works as an attorney from 7 a.m. to 9 p.m., which can be the standard in the legal world. Adding that Plaintiff works from 9-5 would not be considered an "additional fact" in the context of Local Rule 56. On the other hand, a denial, as common sense suggests, is "[a] statement that something is not true." Denial , id. at 527. So if a fact states that "Plaintiff is an attorney," a proper denial would be: "Denied. Plaintiff is a doctor" and a citation to the record supporting this fact.
First Circuit case law sheds some light on when parties cross the line between a proper qualification or denial and additional facts. In Acevedo-Padilla v. Novartis Ex Lax, Inc., the district court held that "a party's denial or qualification of a proposed fact must be strictly limited to the issue therein raised. Any additional information shall be included in a separate section in order to ease the Court's task." 740 F. Supp. 2d 293, 298 (D.P.R. 2010), rev'd and remanded on other grounds, 696 F.3d 128 (1st Cir. 2012) (emphasis added). The First Circuit affirmed this ruling, labeling it "an appropriate exercise of [the district court's] discretion." Acevedo-Parrilla, 696 F.3d at 137 ("[D]istrict court, in an appropriate exercise of its discretion,
ruled that it would disregard any additional facts provided by [plaintiff] when denying or qualifying [defendant's] statement of uncontested facts"). So, returning to the previous example of the 9-5 attorney, it could be improper to qualify the fact that Plaintiff works "all day" by adding that one day at work, Plaintiff's boss made a discriminatory remark. This fact would not be "strictly limited to the issue therein raised." Acevedo-Padilla, 740 F. Supp. 2d at 298.
The Court notes that the "strictly limited to the issue therein raised" standard for denials and qualifications, as articulated by my esteemed colleague, the late Senior Judge Salvador E. Casellas, is demanding but necessary. Id. The Court wants to impart justice, and lawyers play an essential role in helping it achieve this goal. Honest argumentation and clear presentation of the issues and facts help the Court tremendously. The opposite burdens the Court just as much.
Natal Perez v. Oriental Bank & Tr., 291 F. Supp. 3d 215, 219-221 (D.P.R. 2018).
Plaintiffs' response to Defendant's statement of uncontested facts has indeed burdened the Court beyond cavil. Many of Plaintiffs' denials and qualifications contained pages of additional facts. For example, Paragraph 44 of Defendant's statement of uncontested facts states: "Johnny Bravo ("Bravo") and Barbara Cardona ("Cardona") were also interviewed for the position in-person by Almérico and Thrasher on or about November 1 and November 2 of 2016." (Docket No. 102 ¶ 44). A proper denial should be limited to those facts. Instead, Plaintiffs' goes on to proffer additional facts not relevant to the uncontested fact:
Johnny Bravo, date of birth December 7, 1964 (Plaintiffs Exhibit 12, Deposition transcript p. 25:1-2) started working with Novo Nordisk on February 9, 2009 (Id. p. 26:1-2) and Barbara Cardona, date of birth, January 7, 1967, started working with Novo Nordisk on April 30, 2007 (Plaintiffs Exhibit 17, Barbara Cardona deposition transcript page 21:15-22) were also interviewed for the position in-person by Almérico and Thrasher on or about November 1 and November 2 of 2016. Rodriguez Decl. Ex. L at 36:2-37:2, Ex. M at 41:25-42:6. Plaintiffs present as an additional uncontested fact that Barbara Cardona, born on January 7, 1967, had seniority over all 3 selected candidates and had an advanced degree whereas none of the 3 selected candidates had advanced degrees. Plaintiffs also present as an additional uncontested fact that Johnny Bravo, date of birth December 7, 1964 (Plaintiffs Exhibit 12, Deposition transcript p. 25:1-2) started working with Novo Nordisk on February 9, 2009 (Id. p. 26:1-2) and had seniority over selected candidate Carmen Irizarry.
(Docket No. 110 ¶ 44).
Furthermore, Plaintiffs' repeated this practice throughout their answer to Defendant's statement of uncontested facts. The Court will consider Plaintiffs' answers to the statement of uncontested facts. Nonetheless, the Court will disregard any self-serving legal argument contained therein, and will focus solely on the facts correctly contested by Plaintiffs' that could raise a genuine issue of material fact. II. Relevant Factual Background
Plaintiffs also object to Defendant's declaration in support of summary judgement. (Docket No. 117). The Court granted Defendants leave to file said document, and after analyzing Plaintiffs' objection, finds no legal reason to strike the declaration. Plaintiffs additionally never stated how the declaration prejudiced them in any way, as the additional pages of depositions included in the declaration were already in their possession.
Plaintiff William Puig ("Puig") was born on October 8, 1959. (Docket Nos. 102 ¶ 5; 110 ¶ 5). On April 11, 2007 Novo Nordisk hired Puig for the position of Diabetes Care Specialist III ("DCS"). (Docket Nos. 102 ¶ 6; 110 ¶ 6). Plaintiff Hernan Mendez ("Mendez") was born August 4, 1968. (Docket Nos. 102 ¶ 8; 110 ¶ 8). On April 13, 2007 Novo Nordisk hired Puig for the position of Diabetes Care Specialist III. (Docket Nos. 102 ¶ 9; 110 ¶ 9).
A. Novo Nordisk Global Reorganization
Novo Nordisk is a global healthcare company with over 90 years of experience in diabetes care. The Company manufactures and distributes pharmaceutical treatments for diabetes. (Docket Nos. 102 ¶ 1; 110 ¶ 1).
In 2016, Novo Nordisk undertook a global reorganization and reduction in force which resulted in the termination of approximately 1,000 employees. (Docket Nos. 102 ¶ 13; 110 ¶ 13). This reorganization was intended to address challenges Novo Nordisk determined resulted from "increased competition and lower prices" in the United States. (Docket Nos. 102 ¶ 14; 110 ¶ 14). Novo Nordisk identified a "need to reduce [the Company's] cost base" and "to simplify [the Company's] structure ... to be successful." (Docket Nos. 102 ¶ 15; 110 ¶ 15). The goal of the reorganization was to cut costs, simplify the Company's structure, and reduce focus and investment on products that were less profitable for Novo Nordisk, so as to increase the Company's profitability and competitiveness. (Docket Nos. 102 ¶ 16; 110 ¶ 16). Thus, Novo Nordisk determined it would eliminate all DCS positions in the Puerto Rico district, including those held by Puig and Méndez, effective November 18, 2016. (Docket Nos. 102 ¶ 22; 110 ¶ 22).
The reorganization was announced to Novo Nordisk employees on September 29, 2016. (Docket Nos. 102 ¶ 23; 110 ¶ 23). Frequently asked questions concerning the reorganization were distributed to employees, including those in Puerto Rico, which stated that Novo Nordisk planned to reduce its total workforce by approximately 1,000 employees. (Docket Nos. 102 ¶ 24; 110 ¶ 24).
B. DCS Hiring Process
After conducting an analysis of the Puerto Rico market, Novo Nordisk decided to create three DCS positions in Puerto Rico that would report to the South Miami Florida district. (Docket Nos. 102 ¶ 34; 110 ¶ 34). Qualifications for the position included "proven leadership and decision-making ability," additionally the candidate "[m]ust be a self-starter and be able to evaluate options and make decisions on [their] own with minimal supervision." (Docket Nos. 102 ¶ 35; 110 ¶ 35). Candidates were not required to complete the Company's Phase II and Phase III training, or be a Diabetes Care Educator. (Docket Nos. 102 ¶ 36-37; 110 ¶ 36-37).
All DCS employees in Puerto Rico were invited to apply for the DCS positions. (Docket Nos. 102 ¶ 40; 110 ¶ 40). Nelson Almérico, Senior District Business Manager (date of birth: April 23, 1967), and John Thrasher, Regional Business Director (date of birth: November 30, 1971), conducted the interviews. (Docket Nos. 102 ¶ 41; 110 ¶ 41). Almérico and Thrasher determined the new hires based on interviews with the candidates, including any materials the applicants may have brought along. (Docket Nos. 102 ¶ 47; 110 ¶ 47). Puig and Méndez were interviewed for the position in-person by Almérico and Thrasher on November 1 and November 2, 2016, respectively. (Docket Nos. 102 ¶ 43; 110 ¶ 43). After their interviews, Puig and Méndez were listed as "Meets Expectations." (Docket Nos. 102 ¶ 57; 110 ¶ 57).
Thrasher and Almérico noted that Puig had significant experience, but found that he did not have "a high enough level of probing and engaging skills," and that he did not present "as strong a plan as others." (Docket Nos. 102 ¶ 59; 110 ¶ 59). Thrasher and Almérico also noted that Méndez had "[g]reat collaboration [skills] and "[a]ppeared coachable," but found that he was "[n]ot a strong closer," and was not able to give strong examples of how he would adapt to the changing market. (Docket Nos. 102 ¶ 60; 110 ¶ 60).
After the interview process, Jose Velázquez (date of birth: January 17, 1973), Jose Cruzado (date of birth: December 11, 1968), and Carmen Irizarry (date of birth: July 8, 1969) were selected for the DCS positions. (Docket Nos. 102 ¶ 60; 110 ¶ 60) (Plaintiff miss-numbered the fact). Thrasher and Almérico noted Velázquez, Cruzado, and Irizarry as "Exceed[ing] Expectations" and concluded, that they were the most qualified candidates. (Docket Nos. 102 ¶ 61, 71; 110 ¶ 61, 71).
C. Termination
On October 24, 2016, Novo Nordisk sent a letter to Puig and Mendez which informed them that the "department [ ] decided to eliminate your position and, therefore, your employment will end effective November 18, 2016." (Docket Nos. 102 ¶ 25; 110 ¶ 25). The letter explained that, "Novo Nordisk has recently experienced significant business challenges with increased competition and intense pricing pressure. Because of this, Novo Nordisk Inc. must simplify its organizational structure, and change how it operates by prioritizing its commercial opportunities." (Docket Nos. 102 ¶ 26; 110 ¶ 26). Novo Nordisk stated it would pay, if applicable, severance in accordance with P.R. Act No. 80 of May 30, 1976 ("Law 80"). Additionally, Puig and Mendez would be eligible to receive 18 weeks of company paid COBRA coverage if they signed the agreement contained in the letter. (Docket Nos. 102 ¶ 27-28; 110 ¶ 27-28).
Novo Nordisk provided employees, whose positions were impacted as a result of the reorganization, with notice regarding "Benefits Upon Separation of Employment." (Docket Nos. 102 ¶ 29-30; 110 ¶ 29-30). The notice clarified that if they waived the opportunity to continue such benefits, they would terminate on the last day of employment. Id. The notice further stated that, "you must elect COBRA coverage ... within 60 days of the date of the COBRA notification ... should you elect COBRA coverage, the coverage will be reinstated, retroactive to the date you lost coverage," and clarified that COBRA allows an employee to continue their current Group Health Plan coverage at the employees own expense for up to 18 months following separation from employment with the company. (Docket Nos. 102 ¶ 31, 33; 110 ¶ 31, 33).
Puig and Méndez received a second letter from Novo Nordisk on November 18, 2016 notifying them of their termination. (Docket Nos. 102 ¶ 78; 110 ¶ 78). The letter included a "Confidential Agreement, Release and Waiver," ("Agreement"), which would entitle Puig and Mendez to receive the above additional benefits, if they signed the Agreement. (Docket Nos. 102 ¶ 79, 81; 110 ¶ 79, 81). Nonetheless, the Agreement stated that "[i]rrespective of whether Employee signs this Agreement, Novo Nordisk will pay Employee severance in accordance with Law 80 in the gross amount listed in Exhibit A." (Docket Nos. 102 ¶ 80; 110 ¶ 80). Neither Plaintiff signed the Agreement or elected to continue COBRA coverage at their own expense. (Docket Nos. 102 ¶ 96; 110 ¶ 96). The second letter received by Puig stated that Novo Nordisk would provide him with the gross amount of $82,127.37, which represented the Law 80 payment. (Docket Nos. 102 ¶ 84; 110 ¶ 84). Puig accepted this amount and at no point in time did he return the payment to Novo Nordisk. (Docket Nos. 102 ¶ 85; 110 ¶ 85).
On November 18, 2016, Mendez received a letter stating that Novo Nordisk would provide him with the gross amount of $67,845.96, representing the Law 80 payment. (Docket Nos. 102 ¶ 88; 110 ¶ 88). Mendez accepted this amount and never returned said payment to Novo Nordisk. (Docket Nos. 102 ¶ 89; 110 ¶ 89).
D. Equal Employment Opportunity Commission ("EEOC") and Bankruptcy Proceedings
Neither Puig nor Mendez filed a claim with the Equal Employment Opportunity Commission or the Anti-Discrimination Unit of the Puerto Rico Department of Labor before bringing this lawsuit. (Docket Nos. 102 ¶ 102; 110 ¶ 102).
On May 28, 2015, Puig filed a Chapter 13 Voluntary Petition with the United States Bankruptcy Court for the District of Puerto Rico. (Docket Nos. 102 ¶ 103; 110 ¶ 103). Puig's Schedule B, filed with his Voluntary Petition, represented that he had no "contingent and unliquidated claims of every nature." (Docket Nos. 102 ¶ 104; 110 ¶ 104). Puig and the Bankruptcy Trustee were discharged by the Bankruptcy Court on June 26, 2017. (Docket Nos. 102 ¶ 105; 110 ¶ 105).
III. 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see FED. R. CIV. P. 56(a). "An issue is genuine if ‘it may reasonably be resolved in favor of either party’ at trial, ... and material if it ‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.’ " Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (internal citations omitted).
The moving party bears the initial burden of demonstrating the lack of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. "The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The nonmovant may establish a fact is genuinely in dispute by citing particular evidence in the record or showing that either the materials cited by the movant "do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1)(B). If the Court finds that a genuine issue of material fact 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
When considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party and give that party the benefit of any and all reasonable inferences. Id. at 255, 106 S.Ct. 2505. Moreover, at the summary judgment stage, the Court does not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the nonmoving party's case rests merely upon "conclusory allegations, improbable inferences, and unsupported speculation." Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir. 2006) (quoting Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003) ).
IV. Legal Analysis
Defendant argues summary judgment is warranted for: (1) Puig and Mendez's ADEA claims are time barred as they failed to exhaust the administrative requirements, (2) Defendant complied with its obligations under COBRA, and (3) Puig and Mendez's Law 100 claim and the Law 80 claim should be dismissed, as the Law 100 claim fails as a matter of law and the remedy under Law 80 has already been provided to Plaintiffs.
A) ADEA Claim
Before delving into the merits of Plaintiffs Puig and Mendez's age discrimination claim, the Court shall address the ADEA exhaustion requirement.
1. Statute of Limitations
Under the ADEA, a plaintiff must file an employment discrimination complaint with the EEOC within 300 days of the alleged discrimination before bringing suit in federal court. Ramos v. Vizcarrondo, 120 F. Supp. 3d 93, 103 (D.P.R. 2015) (citing Rivera–Rodriguez v. Frito Lay Snacks Caribbean, 265 F.3d 15, 21 (1st Cir. 2001) ) (abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ). The EEOC complaint must contain a statement that generally describes the actions or practices that form the basis of the complaint. Ramos, 120 F. Supp. 3d at 103. It is an uncontested fact that Plaintiffs' never filed a claim with the EEOC. (Docket Nos. 102 ¶ 102; 110 ¶ 102). Nonetheless, since there is a Law 100 claim pending, the Court will analyze Plaintiffs Puig and Mendez's ADEA claim in its entirety.
"[O]n the merits, age discrimination claims asserted under the ADEA and under Law 100 are coterminous." Dávila v. Corporación De P.R. Para La Difusión Pública, 498 F.3d 9, 18 (1st Cir. 2007).
2. Direct Evidence of Discrimination
The ADEA forbids an employer from discharging an employee because of her age. See 29 U.S.C. § 623(a)(1) ; Bonefont-Igaravidez v. Int'l Shipping Corp., 659 F.3d 120, 123 (1st Cir. 2011). To prevail on an age discrimination claim under the ADEA, an employee must show that age was the but-for cause of termination by a preponderance of the evidence. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) ; Cruz v. Bristol-Myers Squibb Co., 699 F.3d 563, 571 (1st Cir. 2012). "A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). "The term ‘direct evidence’ normally contemplates only those statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision. " Vesprini v. Shaw Contract Flooring Services, Inc., 315 F.3d 37, 41 (1st Cir. 2002) (quotation marks omitted) (emphasis added). Frequently, there must be a temporal proximity between the statements and the subsequent decision making for the direct evidence to properly establish a causal nexus between the remarks and the adverse employment action. Mojica v. El Conquistador Resort & Golden Door Spa, 714 F. Supp. 2d 241, 255 (D.P.R. 2010) (citing Vesprini, 315 F.3d at 42 n. 5 ). The comments must also unambiguously display age-based animus and cannot be susceptible to an entirely benign connotation. Id. "[I]nherently ambiguous assertions normally do not constitute ‘direct evidence’ of an age-based animus." Id. (referring Vesprini, 315 F.3d at 42 ). Finally, "comments by non-decisionmakers ... normally are not ‘direct evidence’ of age-based animus." Id. (citing Melendez–Arroyo v. Cutler–Hammer de P.R. Co., 273 F.3d 30, 35 (1st Cir. 2001) ); see also Kirk v. Hitchcock Clinic, 261 F.3d 75, 79 (1st Cir. 2001) (finding that "[e]vidence is considered to be direct if it consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision.") "Stray workplace remarks ... normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus." Gonzalez v. El Dia, Inc., 304 F. 3d 63, 69 (1st Cir. 2002) ; see also Ortiz–Rivera v. Astra Zeneca LP, 596 F. Supp. 2d 231, 246 (D.P.R. 2009).
Plaintiffs Puig and Mendez present as direct evidence of discrimination comments made by John Thrasher and Nelson Almerico during the hiring process. The comments expressed that "they were looking for employees who were ‘dynamic’, with more ‘energy’ and ‘stamina’, to be ‘able to cover between 3 employees the territory previously covered by 14’ ". (Docket No. 111 at 9). Furthermore, Plaintiffs claim that John Thrasher and Nelson Almerico used stereotypes when evaluating Plaintiff Puig as not being "forward looking" and Plaintiff Mendez as not being able to "adapt" to the new "strong business plan." Id. at 10. The comments made no reference to age and only highlight the need Defendant Novo Nordisk had to hire people willing to cover more sales territory. The comments do not clearly show an age based discriminatory animus related to the present complaint.
3. McDonnell Douglas Framework
In absence of direct evidence, a Plaintiff may prove age discrimination with circumstantial evidence through the McDonnell Douglas burden-shifting framework. Bonefont-Igaravidez, 659 F.3d at 123 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ). In the first stage, Plaintiff bears the burden of establishing all four elements of the prima facie case, namely: (1) he was at least forty years old at the time of the alleged adverse employment action; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the employer later filled the position or did not treat age neutrally in taking the adverse action. Bonefont-Igaravidez, 659 F.3d at 124 (citing Velez v. Thermo King de P.R., Inc., 585 F.3d 441, 447 (1st Cir. 2009) (see also LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993) ).
In the second stage, the burden of production shifts to the defendant "to articulate a legitimate, nondiscriminatory basis for the termination." Cruz, 699 F.3d at 571. Once defendant sets forth a non-discriminatory basis for the employment action, the inference raised by the prima facie case dissolves and the final burden transfer occurs. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991) (citing Freeman v. Package Mach. Co., 865 F.2d 1331, 1336 (1st Cir. 1988) ).
In the final stage, Plaintiff must show the reason given for the discharge was "merely a pretext for impermissible age discrimination." Cruz, 699 F.3d at 571. To make a showing of pretext, plaintiff must "elucidate specific facts which would enable a jury to find that the reason given is not only a sham, but a sham intended to cover up the employer's real motive: age discrimination." Meléndez v. Autogermana, Inc., 622 F.3d 46, 52 (1st Cir. 2010) (quoting Mesnick, 950 F.2d at 824 ). Plaintiff must do more than dispute the legitimacy of the employer's asserted justification; he must also offer evidence "of the employer's discriminatory animus." Vega v. Kodak Caribbean, 3 F.3d 476, 479 (1st Cir. 1993) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) ) ("liability under the ADEA depends upon whether age ‘actually motivated the employer's decision’ and [the court] [hesitates] to infer age-based animus solely ‘from the implausibility of the employer's explanation.’ ").
Plaintiffs Puig and Mendez meet the prima facie case of employment discrimination: (1) they were both at least 40 years old at the time they were fired, (2) they were both qualified for the positions they held, (3) they were both fired, and (4) Defendant Novo Nordisk filled the position. Defendant Novo Nordisk then, under the second prong, had to provide a legitimate, nondiscriminatory reasons for its decision. Cruz, 699 F.3d at 571. In 2016, Novo Nordisk undertook a global reorganization and reduction in force which resulted in the termination of approximately 1,000 employees. (Docket Nos. 102 ¶ 13; 110 ¶ 13). The stated ultimate goal of the reorganization was to cut costs, simplify the company's structure, and reduce focus and investment on products that were less profitable for Novo Nordisk, so as to increase the company's profitability and competitiveness. (Docket Nos. 102 ¶ 16; 110 ¶ 16). Novo Nordisk meets their burden easily. Thus, the Court turns to the final prong of the McDonnell Douglas framework: whether plaintiffs proved "by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination." Velez, 585 F.3d at 447–48.
Plaintiffs Puig and Mendez claim that after termination they were replaced by younger and less qualified employees. (Docket No. 111 at 8). Plaintiffs also claim that Defendant deviated from its own policies and practices regarding the reorganization. Id. The fact remains that Plaintiff failed to "elucidate specific facts which would enable a jury to find that the reason given is not only a sham, but a sham intended to cover up the employer's real motive: age discrimination." Melendez, 622 F.3d at 52. However, Defendant Novo Nordisk did follow its own reorganization business analysis by creating the three DCS positions required by said analysis in Puerto Rico. Furthermore, the three employees hired for the DCS positions were also in the protected age category, as well as John Thrasher and Nelson Almerico, who selected the candidates. (Docket Nos. 102 ¶ 41, 60; 110 ¶ 41, 60). There is just simply nothing on the record provided by Plaintiffs that creates a genuine issue of material fact to the effect that Novo Nordisk's global reorganization was a pretext intended to cover up age discrimination against Plaintiffs. Therefore, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiffs' Puig and Mendez's ADEA claim due to a failure to exhaust the EEOC requirement and as a matter of law.
B) COBRA Claim
Plaintiffs allege that Defendant violated the Consolidated Omnibus Budget Reconciliation Act ("COBRA") by suddenly canceling their benefits after termination. See 29 U.S.C. §§ 1161(a), 1163(2), 1166(a)(4)(A) & (c). COBRA requires that an employer provide an employee and other "qualified beneficiaries" with the option of electing continued coverage under the same terms of the employer's health plan after the occurrence of a "qualifying event" which would otherwise end an employee's health insurance coverage. 29 U.S.C. § 1161. Essentially, what COBRA requires is that qualified beneficiaries be notified of the option to continue to receive health insurance coverage at their own cost. 29 U.S.C. § 1166(a), (c).
Novo Nordisk gave sufficient notice to Plaintiffs Puig and Mendez of their option to continue to receive COBRA benefits through the October 26, 2016 letter. (Docket Nos. 102 ¶ 29-33; 110 ¶ 29-33). It is uncontested that Plaintiffs Puig and Mendez were provided information regarding their option to elect COBRA benefits and neither elected to continue said benefits at their own expense. (Docket Nos. 102 ¶ 96-97; 110 ¶ 96-97). Thus, since Defendant complied with the notice requirement under COBRA, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiffs' Puig and Mendez's COBRA claim.
C. Supplemental State Law Claims
Plaintiff invokes this Court's supplemental jurisdiction and asserts Puerto Rico state law claims under Law 100, Law 80, and Article 1802 of the Puerto Rico Civil Code. (Docket No. 1).
Generally, dismissal of a plaintiff's federal claims well before trial will trigger the dismissal without prejudice of any supplemental state law claims. Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir. 1995). However, in certain situations, a federal court may retain jurisdiction over state law claims even after dismissal of all federal claims. Id. The exercise of supplemental jurisdiction is "wholly discretionary" and determined on a case-by-case basis, with due consideration to factors such as judicial economy, convenience, fairness, and comity. Id.
In this case, interests of judicial economy, convenience, and fairness pull the Court towards retaining jurisdiction. The factual record has been fully developed, the federal and state claims arise from the same common nucleus of operative fact, and Plaintiff has elected to litigate in the federal forum. See Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1st Cir. 1996) (affirming the district court's discretionary decision to retain jurisdiction over supplemental state law claims for similar reasons).
1) Law 100
Law 100 is Puerto Rico's anti-discrimination statute. The statute imposes civil liability on an employer who discharges or discriminates against an employee on the basis of age, race, gender, and religion, among other things. P.R. LAWS ANN. tit. 29, §§ 146 - 151 et seq . "[O]n the merits, age discrimination claims asserted under the ADEA and under Law 100 are coterminous." Dávila v. Corporación De P.R. Para La Difusión Pública, 498 F.3d 9, 18 (1st Cir. 2007). "As applied to age discrimination, [Law 100] differs from the ADEA only with respect to how the burden-shifting framework operates." Id. Law 100 establishes a rebuttable presumption that the employer has discriminated illegally unless the employer can show that the discharge was justified. See P.R. LAWS ANN. tit. 29, § 148. Thus, to trigger the Law 100 presumption of discrimination, it must be shown that the employer lacked "just cause" to discharge the employee. Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 F.3d 17, 28 (1st Cir. 1998). If the employer proves that the discharge was justified, then the Law 100 presumption disappears. See P.R. Laws Ann. tit. 29, § 148. If the latter proves to be the case, then:
[T]he burden of proof on the ultimate issue of discrimination remains with the plaintiff, as in any other civil case. The plaintiff must prove that, even if the dismissal was justified, the defendant nevertheless violated Law 100 because the dismissal was motivated by discriminatory animus instead of or in addition to the legitimate reasons for dismissal. The Law 100 plaintiff is then in same situation as an ADEA plaintiff after the defendant has articulated a legitimate, non-discriminatory reason for its actions.
Alvarez-Fonseca, 152 F.3d at 28. But, if the employer fails to show "just cause" for the employee's dismissal, the Law 100 presumption is triggered and will stand unless the employer proves "by a preponderance of the evidence that the challenged action was not motivated by discriminatory age animus." Id.
To determine what constitutes "just cause," courts look at the parameters established under Law 80. Alvarez-Fonseca, 152 F.3d at 28. "The Supreme Court of the Commonwealth of Puerto Rico determined that, because Law 100 did not define the term ‘just cause,’ the term's definition would be sought in an analogous statute—the Puerto Rico Law Wrongful Discharge Act, Law 80 of May 30, 1976." Id. Under Law 80, "just cause" exists when a company discharges an employee pursuant to a reorganization and/or reduction of employment made necessary by a decrease in the anticipated or prevailing volume of production, sales or profits at the time of the discharge or with the purpose of increasing the establishment's productivity or competitiveness. 29 L.P.R.A. § 185(b),(e), and (f).
In the present case the Law 100 presumption is not triggered, as Defendant Novo Nordisk provided "just cause" for Plaintiffs Puig and Mendez's dismissal through the 2016 global reorganization. (Docket Nos. 102 ¶ 13; 110 ¶ 13). The ultimate goal of the reorganization was to cut costs, simplify the Company's structure, and reduce focus and investment on products that were less profitable for Novo Nordisk, so as to increase the Company's profitability and competitiveness. (Docket Nos. 102 ¶ 16; 110 ¶ 16). Thus, the reorganization undertaken by Novo Nordisk and the legitimate business decision related to the same constituted "just cause" for Plaintiffs Puig and Mendez's dismissal under the parameters established by Law 80.
Since there is no shift in the burden of persuasion, and the analysis under the ADEA and Law 100 are coterminous, Plaintiffs Law 100 claim fails for the same reasons as its ADEA claim. Therefore, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiffs' Puig and Mendez's Law 100.
2) Law 80
Law 80 requires employers to provide compensation for at-will employees who are discharged without good cause. P.R. LAWS ANN. tit. 29, § 185a ; Ruiz-Sanchez v. Goodyear Tire & Rubber Co., 717 F.3d 249, 254 (1st Cir. 2013). The employee bears the initial burden of alleging unjustified dismissal and proving actual dismissal. Hoyos v. Telecorp Commc'n, Inc., 405 F. Supp. 2d 199, 205-06 (D.P.R. 2005) (internal quotations omitted). After, the employer must show, by a preponderance of the evidence, the dismissal was made for good cause. Id. Under the statute good cause includes "[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." § 185b(f).
This case is particular as in Plaintiffs Puig and Mendez were both paid Law 80 severance. (Docket Nos. 102 ¶ 84-85, 88-89; 110 ¶ 84-85, 88-89). Defendant and Plaintiffs both agree that a statutory indemnification is the exclusive remedy for what would be an unjustified dismissal under Law 80. (Docket No. 111 at 18) (see also P.R. LAWS ANN. tit. 29 § 185(a), (d)). Nonetheless, Plaintiffs Puig and Mendez claim that Defendant miscalculated their statutory indemnifications. Id. Plaintiffs provide no evidential support as to their claim that their Law 80 payments were miscalculated. Furthermore, both Plaintiffs Puig and Mendez understood and accepted the payment made by Defendant Novo Nordisk as Law 80 statutory indemnification. (Docket Nos. 102 ¶ 84-85, 88-89; 110 ¶ 84-85, 88-89). Therefore, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's Puig and Mendez's Law 80 claim.
3) Article 1802
Article 1802 Puerto Rico Civil Code is Puerto Rico's general tort statute and provides that a person who "causes damage to another through fault or negligence shall be obliged to repair the damage so done." P.R. LAWS ANN. Tit 31, § 5141. "Under Puerto Rico law, close relatives of one who has suffered the slings and arrows of employment discrimination may invoke Article 1802 as a vehicle for prosecuting a cause of action. But such a cause of action is wholly derivative and, thus, its viability is contingent upon the viability of the underlying employment discrimination claim." Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 12–13 (1st Cir. 2007). As this Court has already granted summary judgment on the underlying claims, Plaintiff Meralys Colón's Article 1802 derivative claim fails as well.
V. Conclusion
For the reasons stated above, Defendant's Motion for Summary Judgment at Docket No. 100 is GRANTED . Plaintiffs' claims are hereby DISMISSED with prejudice.