Opinion
Civil No. 08-1097 (JAF).
July 10, 2009
OPINION AND ORDER
Plaintiff, Tilson Ortiz-Santiago, brings this action against Defendant, Vaquería Tres Monjitas, Inc., alleging failure to promote in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, and Puerto Rico Law No. 100, of June 30, 1959, 29 L.P.R.A. § 146 (2001) ("Law 100"); retaliatory suspension in violation of the ADEA, 29 U.S.C. § 623(d); and failure to pay vacation leave in violation of Puerto Rico Law. (Docket Nos. 1, 32.)
Defendant moves for summary judgment under Federal Rule of Civil Procedure 56(c) (Docket No. 21), Plaintiff opposes (Docket No. 32), and Defendant replies (Docket No. 46).
I. Factual and Procedural Synopsis
Unless otherwise indicated, we derive the following factual and procedural summary from the pleadings and depositions on file. (Docket Nos. 1, 21, 22, 28, 32, 37, 45, 46, 54, 56.)
Defendant is a Puerto Rico corporation that processes and distributes dairy products. Defendant and the Federación Central de Trabajadores ("the Union") entered into a Collective Bargaining Agreement ("CBA") valid from June 1, 2005, until May 31, 2008. The terms of the CBA apply to "drivers-salesmen and their assistant[s]." (Docket No. 37-2.)
Under Article VIII of the CBA, "any grievance or complaint relating to management or the interpretation of clauses within [the CBA] which in some way affect employees covered under [the CBA] . . . must be submitted or presented" through a specified grievance and complaints procedure. (Id.) Excluding any job discrimination grievances or complaints, this "shall become the exclusive means for resolution of any complaint and/or agreement." (Id.)
Although the certified translation in the record states that job discrimination grievances or complaints "shall be deemed as a grievance or complaint" for purposes of the CBA (Docket No. 37-2 at 15), this is an inaccurate translation of Docket No. 22-3. We have annexed an accurate translation to this Opinion and Order. We caution Defendant to exercise care in ensuring that submissions before the court are accurate and complete.
Article XII of the CBA also provides that promotions should be made "in accordance with seniority criteria and competency at work, in terms of performing [sic] within stated classification at the company's discretion." (Id.) Thus, Defendant is required to weigh both an employee's seniority and qualifications when the employee requests a promotion.
Article XVI of the CBA provides for the accumulation of vacation leave. (Id.) Employees that have been working for more than five years accumulate one and five-twelfths of a day per month for those months in which they work for at least one hundred and fifteen hours. (Id.)
Plaintiff is a resident of Bayamón who was born in 1938. He has been continuously employed by Defendant since 1990. In 2006, he was a substitute salesman for District 1, which includes delivery routes in San Juan and parts of Carolina. A district is composed of various routes within a determined geographic area. Substitute salesmen assist vendors in their daily routes and must fill in when a vendor is absent. They earn no commission on the milk they sell. Plaintiff either enjoyed vacation leave or received payment in lieu of vacation for the years 2000 to 2004 and the year 2006. There is no information in the record regarding Plaintiff's vacation leave in 2005.
On May 2006, the salesman for route 446, Edgardo Ramírez, was suspended from his employment as a result of an incident with a client. Route 446, located within District 2, includes deliveries in Bayamón. District 2 also includes delivery routes in Toa Alta, Toa Baja, and Corozal. On May 15, José Concepción, a substitute salesman in District 2, requested route 446. Concepción had been employed by Defendant since 2001 and was in his late twenties.
Under the CBA, Defendant is required to "notify vacant positions to any interested contracting unit personnel who so desires to request same, through the bulletin board." (Id.) However, as had become common practice at the company, the vacancy was not announced on the Defendant's bulletin board. Plaintiff had previously been awarded a position as salesman without the position being properly announced.
On June 2, 2006, route 446 was assigned to Concepción. On June 5, Plaintiff verbally requested that his supervisor, Carlos Piñeiro, assign him to route 446. (Docket No. 45-2.) Piñeiro asked Plaintiff to submit the request in writing. Plaintiff requested the position in writing on June 6.
On June 7, 2006, Piñeiro sent Plaintiff a letter informing him that the salesman position had already been filled and that Plaintiff would be considered for another route, should one become available in the future. (Docket No. 37-6.)
On June 23, 2006, Plaintiff filed a charge before the Equal Employment Opportunity Commission ("EEOC"), claiming that Defendant awarded the position of salesman on route 446 to Concepción because he was younger, in violation of the ADEA. (Docket No. 22-15.) Plaintiff has not attempted to resolve his failure to pay vacation leave claim through the CBA's grievance and complaints procedure.
On January 22, 2007, Plaintiff received a letter from José Berríos, the District 1 Route Supervisor, stating that Plaintiff had failed to follow his assigned route four days earlier. (Docket No. 37-11.) On January 23, Plaintiff talked to Berríos and Piñeiro about the letter. During the conversation, Piñeiro thought he heard Plaintiff verbally threaten Berríos. Piñeiro immediately cut Plaintiff off and suspended him for three days. Plaintiff alleges, however, that he was not threatening Berríos and that the suspension was a misunderstanding, as Piñeiro did not allow Plaintiff to complete his statement. Later that same day, Berríos filed criminal charges against Plaintiff over the alleged threat (Docket No. 54-8) and Plaintiff filed a sworn statement before the EEOC, asking to amend his charge against Defendant to include the incident. On January 25, Plaintiff returned to work. He did not lose any salary as a result of the withdrawn one-day suspension.
Prior to and throughout the time period in question, guard Angel Luis, one of Defendant's employees, would say to Plaintiff "why don't you leave work and let someone younger work" and "you have already worked a lot." Plaintiff's supervisor, Berríos, was never present when Angel Luis made the comments. Also, some of Defendant's employees and Plaintiff's supervisor would call Plaintiff a "jockey."
On January 23, 2008, Plaintiff filed the present complaint in federal district court, alleging that (1) Defendant denied him the position of salesman for route 446 because of his age, in violation of the ADEA and Law 100; (2) Defendant suspended him in retaliation for filing a charge before the EEOC; and (3) Defendant failed to pay him for vacation leave, as required under Puerto Rico law. (Docket No. 1.) On April 20, 2009, Defendant moved for summary judgment. (Docket No. 21.) Plaintiff opposed on May 12, 2009 (Docket No. 32), and Defendant replied on May 28, 2009 (Docket No. 46).
II. Standard For Summary Judgment Under Rule 56(c)
We grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A factual dispute is "genuine" if it could be resolved in favor of either party, and "material" if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
The movant carries the burden of establishing that there is no genuine issue as to any material fact; however, the burden "may be discharged by showing that there is an absence of evidence to support the non-movant's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 331 (1986). The burden has two components: (1) an initial burden of production, which shifts to the non-movant if satisfied by the movant; and (2) an ultimate burden of persuasion, which always remains on the movant. Id. at 331.
In evaluating a motion for summary judgment, we view the record in the light most favorable to the non-movant. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). However, the non-movant "may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).
III. Analysis
We address in turn Defendant's motion for summary judgment on Plaintiff's (1) ADEA and Law 100 claims; (2) retaliatory suspension claim; and (3) failure to pay vacation leave claim.
A. ADEA and Law No. 100
Plaintiff asserts a disparate treatment claim under the ADEA and a claim under Law 100, Puerto Rico's age discrimination statute. (Docket Nos. 1, 32.) Defendant argues that we must grant summary judgment on Plaintiff's ADEA claim because Plaintiff has failed to establish a prima-facie case of age discrimination or demonstrate that Defendant's neutral explanation for not promoting Plaintiff was a pretext for age discrimination. (Docket No. 21.) Defendant further argues that we must dismiss the Law 100 claims for the same reasons as the ADEA claims. (Id.)
1. ADEA
The ADEA provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). Plaintiffs may use direct or indirect evidence to prove a disparate treatment theory. a. Direct Evidence
Plaintiff asserts that when he verbally requested that Piñeiro assign him to route 466, Piñeiro responded that he "would be denied the position [of route 466 salesman] because he was too old." (Docket No. 28-8). He argues that this constitutes direct evidence of discrimination. (Docket No. 32.) Defendant counters that we should discount Plaintiff's direct evidence because it is at odds with Plaintiff's other testimony. (Docket No. 46.)
Where the plaintiff presents direct evidence of discrimination in an employment discrimination case alleging disparate treatment, the burden shifts to the employer, who must prove that it would have reached the same decision without taking into account the protected characteristic. See Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95-96 (1st Cir. 1996) (citing Smith v. F.W. Morse Co., 76 F.3d 413, 421 (1st Cir. 1996)). Consequently, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is inapplicable. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (citing Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n. 44 (1977)).
"Direct evidence is evidence which, in and of itself, shows a discriminatory animus." Jackson v. Harvard Univ., 900 F.2d 464, 467 (1st Cir. 1990). An admission by the employer that it explicitly considered age in making the employment decision is direct evidence of age discrimination. Meléndez v. Autogermana, Inc., 606 F.Supp.2d 189, 195 (D.P.R. 2009) (citing Smith, 76 F.3d at 421).
"[A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement . . . without explaining the contradiction or attempting to resolve the disparity." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806-07 (1999) (collecting cases); see Colantuoni v. Alfred Calcagni Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994) (citations omitted). InGarcía v. Bristol Myers Squibb Co., for example, the First Circuit discredited allegations made by the plaintiff for the first time in an unsworn affidavit, as she had stated during her prior deposition that she had declared every incident of disparate treatment she was aware of. 535 F.3d 23, 33 n. 5 (1st Cir. 2008).
Defendant argues that we should disregard Plaintiff's direct evidence of discrimination, that Piñeiro told Plaintiff that he "would be denied the position [of route 466 salesman] because he was too old" (Docket No. 32), because it is at odds with Plaintiff's other testimony. (Docket No. 46.) Plaintiff first mentioned Piñeiro's comment on September 4, 2008, in the Answer to Interrogatory and subsequently included it in his unsworn affidavit of May 11, 2009. (Docket No. 46.) The unsworn affidavit came in response to Defendant's motion for summary judgment. (Docket No. 28-8.) The statement was notably absent from Plaintiff's allegations in the charge of discrimination before the EEOC (Docket No. 22-15), the complaint (Docket No. 1), and the initial disclosures (Docket No. 46). Also, when Plaintiff was asked during his deposition about the meeting with Piñeiro, he once again failed to mention the statement, despite being asked repeatedly whether he was describing the conversation in full. (Id.)
Given the inconsistencies between the unsworn affidavit and the deposition, and Plaintiff's failure to provide an adequate explanation for the disparity, we do not credit the statement made in Plaintiff's unsworn affidavit. See Policy Mgmt. Sys. Corp, 526 U.S. at 806-07; García, 535 F.3d at 33 n. 5. Therefore, there is no direct evidence of discrimination in this case.
b. Circumstantial Evidence
Plaintiff also presents circumstantial evidence to prove his claim of age-based discrimination. (Docket Nos. 1, 28, 32, 54.) Defendant argues that this evidence does not create a prima-facie case and does not rebut Defendant's stated non-discriminatory motive. (Docket Nos. 21, 22, 37, 45, 46, 56.)
When the Plaintiff lacks direct evidence of age discrimination, we follow the three-step process outlined in McDonnell Douglas, 411 U.S. 792. First, the plaintiff must establish a prima-facie case of age discrimination. Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 48 (1st Cir. 2008). To establish a prima-facie case of disparate treatment under the ADEA in a failure-to-promote claim, a plaintiff must show that (1) he was at least forty years old at the time of the adverse employment action; (2) he was qualified for the position; (3) he was denied the promotion; and (4) the position was filled by someone younger with similar qualifications. Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 219 (1st Cir. 2008) (citing Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)).
Next, the burden shifts to the defendant to present a legitimate, nondiscriminatory reason for the employment decision.Id. The defendant "need do no more than articulate a reason which, on its face, would justify a conclusion that the plaintiff was [not promoted] for a nondiscriminatory motive."Torrech-Hernández, 519 F.3d at 48 (quoting Dávila v. Corporación de P.R. Para La Difusión Pública, 498 F.3d 9, 16 (1st Cir. 2007)).
The burden then shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the defendant's asserted reason is a pretext for age discrimination. Id. This burden may be satisfied through either direct or circumstantial evidence, including derogatory comments, differential treatment in the workplace, and the use of a younger replacement. Mesnick, 950 F.2d at 824 (citing cases). Inexplicable deviations from established company procedures or practices can also be considered evidence of pretext. See Brennan v. GTE Gov't Sys. Corp., 150 F.3d 21, 29 (1st Cir. 1998) (citing Lattimore v. Polaroid Corp., 99 F.3d 456, 466-67 (1st Cir. 1996)) (finding that a one-time deviation from a company's retention procedure is "directly relevant" to the pretext determination). However, statements by nondecisionmakers "normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus." González v. El Día, Inc., 304 F.3d 63, 69 (1st Cir. 2002).
Here, the evidence shows that Plaintiff is within the protected class, as he was over forty years old when he requested route 446, and Plaintiff was not promoted to the position of salesman. He was at least arguably qualified for the position he was seeking, as he was from the Bayamón area and was already working as a substitute salesman for Defendant. Furthermore, the position was filled by Concepción, a younger substitute salesman. Therefore, we assume that Plaintiff satisfies the prima-facie case requirement.
Defendant argues that Plaintiff has failed to rebut its legitimate, nondiscriminatory explanation for awarding Concepción the route at issue. (Docket Nos. 45, 46.) Defendant asserts that it awarded the route to Concepción because he was already familiar with the route and it was essential to get a driver that could master the route quickly. (Docket Nos. 21, 22, 37, 45.) Defendant also claims that the position was filled by the time that Plaintiff applied for it. (Docket Nos. 21, 22, 37, 45.) Because these reasons, on their faces, would justify a conclusion that Plaintiff was denied the position for a nondiscriminatory reason, the burden shifts to Plaintiff to prove that this reason was pretextual. See Torrech-Hernández, 519 F.3d at 48.
Plaintiff argues that Defendant's explanation is pretextual for several reasons. (Docket Nos. 1, 32.) First, Plaintiff asserts that he was sufficiently familiar with the route because he is a Bayamón resident and could have quickly learned the route. (Docket Nos. 28-1, 32.) Plaintiff concedes that he did not know route 446 at the time the position of salesman became vacant, but he states that it would have taken him around eight working days to learn it. (Docket No. 32.) Given Defendant's need to fill the position of salesman for route 446 quickly, it is reasonable for Defendant to prefer Concepción, especially given that Concepción needed no time to learn the route.
Second, Plaintiff argues that he should have been given the position of route 446 salesman solely because he had more seniority than Concepción and was, therefore, better qualified. (Id.) Nevertheless, Plaintiff admits in his deposition that seniority by itself does not mean that an employee is better qualified. (Docket No. 56-4.) He also concedes that the CBA does not provide a preferential right over a vacant position based on seniority. (Docket No. 28-1.) Consequently, Plaintiff's argument that he should have been chosen to fill the vacant position solely based on seniority is not sufficiently supported by the record.
Third, Plaintiff contends that Defendant never announced the position of salesman for route 446 and that this is evidence of discrimination. (Docket No. 32.) Plaintiff admits, however, that Defendant had in the past failed to publish vacant positions on the company's bulletin board (Docket No. 37-5) and that Plaintiff was previously awarded a position as salesman without it being published (Docket No. 37-7). Thus, although Defendant violated the CBA by failing to post the vacancies (Docket No. 37-2), this failure is not a strong indicator of pretext because the practice of not posting had been carried out for some time before the events in question. See Brennan, 150 F.3d at 29 (citations omitted).
Although Plaintiff's evidence, that he was sufficiently familiar with route 446, had more seniority than Concepción, and the position was never announced, might arguably constitute some evidence that Defendant's reasons were pretextual, Plaintiff has failed to prove that the Defendant was motivated by a discriminatory animus. See Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 2007) (citing Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091-92 (1st Cir. 1995)). Plaintiff argues that several workplace remarks demonstrate an age-based animus. The record, however, does not support this contention. For example, Plaintiff asserts that Piñeiro's remark, that Plaintiff "would be denied the position [of route 466 salesman] because he was too old," is indicative of Defendant's discriminatory animus. (Docket No. 32.) As discussed above, we do not credit this statement. All other remarks were either said by employees that did not have decision-making power over Plaintiff or are ambiguous as to whether they are discriminatory in nature. (Docket No. 28.) First, Plaintiff admits that the comments "why don't you leave work and let someone younger work" and "you have already worked a lot" were made by guard Angel Luis, who has no supervisory power over Plaintiff. (Docket Nos. 21, 22, 28-1.) Plaintiff's supervisor, Berríos, was never present when the comments were made. (Docket Nos. 21, 28-1, 37-7.) Therefore, these comments do not establish pretext. See González, 304 F.3d at 69. Second, Plaintiff claims that his supervisor and other employees called him a "jockey" to his supervisor. (Docket No. 1.) According to Plaintiff, this means that they were referring to him as an independent contractor. (Docket Nos. 21, 22, 28-1.) It is unclear how this alleged remark demonstrates age-based animus.
In his charge before the EEOC (Docket No. 22-15) and Complaint, (Docket No. 1), Plaintiff claims that supervisor Angel Otero asked him "Is this your last haircut?" Although Plaintiff testified that the remark was made on June 6, 2006 (Docket No. 37-7), the record clearly shows that Otero died on June 22, 1999 (Docket Nos. 22-2, 37-12). Therefore, we do not credit these remarks.
As there is no evidence that the reasons offered by Defendant are a pretext for age-based discrimination, Plaintiff has not shown the existence of an issue of fact as to whether, but for age bias, he would have been promoted. 2. Law No. 100
Because we dismiss Plaintiff's ADEA claim, we dismiss his Law 100 claim. See Dávila, 498 F.3d at 18 (stating that "[o]n the merits, age discrimination claims asserted under the ADEA and under Law 100 are coterminous") (citing González, 304 F.3d at 73).
Consequently, we grant Defendant's motion for summary judgment with respect to the ADEA claim and the Law 100 claim.
B. ADEA Retaliation
Plaintiff claims that Defendant retaliated against him by suspending him and filing charges because he filed a charge before the EEOC. (Docket Nos. 1, 32.) Defendant counters that summary judgment should be granted because the suspension was caused by a misunderstanding, it was withdrawn, and Plaintiff never lost any income as a result. (Docket No. 21.)
The ADEA provides that it is unlawful for an employer to discriminate against an employee for opposing a practice made unlawful by the ADEA, or for making a charge, testifying, assisting, or participating in proceedings under the ADEA. 29 U.S.C. § 623(d).
When there is only circumstantial evidence of discriminatory retaliation, we again apply the burden-shifting framework inMcDonnell Douglas. Mesnick, 950 F.2d at 827. "A plaintiff must make a prima facie showing of retaliation by presenting evidence that (1) he engaged in protected conduct, (2) he was thereafter subjected to an adverse employment action, and (3) a causal connection existed between the protected conduct and the adverse action."Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003) (citing Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998)). The burden then shifts to the defendant, who must articulate a legitimate, non-retaliatory reason for the adverse employment decision. Id. at 39 (citingBishop v. Bell Atl. Corp., 299 F.3d 53, 58 (1st Cir. 2002)). Finally, if such a reason is offered, the burden shifts back to the plaintiff, who has to show that the employer's retaliatory action was the result of discriminatory animus. Id. (citingFeliciano de la Cruz v. El Conquistador Resort Country Club, 218 F.3d 1, 6 (1st Cir. 2000)).
A plaintiff's failure to prevail in his own ADEA discrimination suit will not preclude a retaliation cause of action under the ADEA. Machin v. Leo Burnett, Inc., 376 F.Supp.2d 188, 206 (D.P.R. 2005) (citing Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997)). "It is enough that the plaintiff had a reasonable, good-faith belief that a violation occurred; that he acted on it; that the employer knew of the plaintiff's conduct; and that the employer lashed out in consequence of it." Mesnick, 950 F.2d at 827.
Here, Plaintiff's filing of a charge before the EEOC constituted protected conduct. See 29 U.S.C. § 623(d). However, even assuming that the withdrawn and paid suspension was an adverse employment action, Plaintiff has failed to demonstrate that there was a causal connection between the filing of the charge before the EEOC and the suspension and filing of criminal charges. See Che, 342 F.3d at 38. Plaintiff's Complaint alleges that the letter that Berríos sent Plaintiff on January 22, 2007 (Docket No. 37-11) caused Plaintiff's suspension. (Docket No. 1.) However, nothing in the letter relates to Plaintiff's EEOC charge. Likewise, Plaintiff has failed to provide any evidence that his conversation with Piñeiro and Berríos a day later bore any relationship to his EEOC charge.
As there is no evidence that the withdrawn and paid suspension was motivated by a discriminatory animus, Plaintiff has not shown that a causal connection existed between the filing of his EEOC charge and the adverse action. See Che, 342 F.3d at 38 (citingHernández-Torres, 158 F.3d at 47).
Consequently, we grant Defendant's motion for summary judgment with respect to the ADEA retaliation claim.
C. Failure to Pay Vacation Leave
Plaintiff asserts a wage claim under Puerto Rico law. (Docket Nos. 1, 32.) Defendant counters that we must grant summary judgment because Plaintiff has failed to exhaust the grievance procedure in the CBA. (Docket Nos. 21, 46.) We address in turn Plaintiff's wage claim as premised on (1) a right based on the CBA; and (2) a right based on Puerto Rico law. 1. Right Based on the CBA
Defendant argues that Plaintiff failed to exhaust the remedies available under the CBA.
Defendant assumes that Plaintiff made a failure to announce a vacancy claim. However, we do not interpret Plaintiff's complaint as stating such a claim. (See Docket No. 1.) To the extent that it does, the analysis under this section would be equally applicable and the failure to announce a vacancy claim would be dismissed.
Section 301 of the Labor Management Relations Act provides that suits for violation of contracts between an employer and a union may be brought in any district court that has jurisdiction over the parties. 29 U.S.C. § 185(a). Thus, if the cause of action involves a right or duty that exists under a CBA, the state claim may be preempted. Fant v. New Eng. Power Serv. Co., 239 F.3d 8, 14 (1st Cir. 2001).
When a collective bargaining contract provides grievance and arbitration procedures, an employee must ordinarily exhaust these procedures before bringing his claim to court. Local 1575 Int'1 Longshoremen's Ass'n AFL-CIO v. Horizon Lines of Puerto Rico, Inc., 553 F.Supp.2d 101, 105 (D.P.R. 2008) (collecting cases). This rule is only inapplicable when the employer's conduct amounted to a repudiation of the contract's remedial procedures, when the union wrongfully refused to process the grievance, or when following the contractual procedures would be futile. Id. at 105-06 (citing Vaca v. Sipes, 386 U.S. 171, 185 (1967); Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 330 (1969)). Moreover, there is a presumption that disputes should be resolved through arbitration, particularly where the arbitration clause is broad. See AT T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 650 (1986).
To the extent that Plaintiff's unpaid vacation leave claim is based on rights created by the CBA, that claim is preempted. See Fant, 239 F.3d at 14. The CBA at issue in this case provides that all claims and grievances related to the administration or interpretation of the CBA, with the exception of discrimination claims, must be brought in accordance with the procedure established by the document. (Docket No. 37-2.) As the CBA has sections corresponding to the calculation of vacation leave (id.), the claim is covered by the CBA. Plaintiff has failed to explain why the dispute should not be governed by the procedure established in the CBA, see AT T Techs., 475 U.S. at 650, or produce evidence showing that he exhausted the grievance and arbitration procedure. Also, none of the exceptions mentioned inLocal 1575 are present in this case. See 553 F.Supp.2d at 105-06.
Consequently, because Plaintiff failed to exhaust the grievance procedure established in the CBA, we grant Defendant's motion for summary judgment with respect to this claim. See Local 1575, 553 F.Supp.2d at 105. 2. Right Based on Puerto Rico Law
Plaintiff contends that Defendant has denied him his right to paid vacations, as established by Puerto Rico law. (Docket Nos. 1, 32.) Defendant does not address the claim under Puerto Rico law.
In some cases, when a party alleges only a violation of a state law without asserting a breach of the CBA, "the action need not be preempted by federal law" because "the rights created by the state law are independent, non-negotiable and not inextricably intertwined with the collective bargaining agreement." Fant, 239 F.3d at 15 n. 7 (internal quotation omitted); see, e.g., Welch v. Gen'l Motors Corp., 922 F.2d 287, 290 (6th Cir. 1990) (holding that employee could assert independent state rights established by the Michigan Handicapper's Civil Rights Act, even though the CBA provided a remedy for discrimination).
Under Puerto Rico Law No. 180, of July 27, 1998, employees "accrue vacation leave at a rate of one and one quarter (1 1/4) days each month," as long as they have worked at least one hundred and fifteen hours a month. 29 L.P.R.A. § 250(d)(a) (2001). To the extent that Plaintiff was asserting an unpaid vacation leave claim under Puerto Rico Law No. 180, because we grant summary judgment for Defendant on all federal claims, we decline to exercise supplemental jurisdiction over this associated Commonwealth claim. See Rivera v. Murphy, 979 F.2d 259, 264 (1st Cir. 1992) (quoting Cullen v. Mattaliano, 690 F. Supp. 93, 99 (D. Mass. 1988)); see also 28 U.S.C. § 1367(c)(3).
IV. Conclusion
In accordance with the foregoing, we hereby GRANT Defendant's motion for summary judgment, (Docket No. 21), and DISMISS Plaintiff's ADEA, retaliatory suspension, and failure to pay vacation leave under the CBA claims WITH PREJUDICE. We DISMISS Plaintiff's Puerto Rico claims WITHOUT PREJUDICE of state court litigation.
IT IS SO ORDERED.