PEDRO A. DELGADO-HERNÁNDEZ, District Judge.
Plaintiff Wilbur L. Hoffman, his wife, and their conjugal partnership, initiated this action against Hoffman's former employer, Metrohealth, Inc. d/b/a Hospital Metropolitano, and Metrohealth's insurance company, AIG, alleging his employment was terminated because of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), Puerto Rico Law No. 100 of June 30, 1959, 29 P.R. Laws Ann. tit. 29 § 146, et seq. and Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 5141 No. 29).
Before the court is Metrohealth's Motion for Summary Judgment (Docket No. 143), which AIG joined (Docket No. 147). Hoffman opposed (Docket No. 149), Metrohealth replied (Docket No. 169) and Hoffman surreplied (Docket No. 174). The motion is GRANTED IN PART AND DENIED IN PART. As more fully explained below, the summary judgment record does not show that age was treated neutrally.
Hoffman was laid off when the department he headed closed. At the time, he was sixty-two years of age. Like Hoffman, Giovanny Martínez—the department's Supervisor—was laid off. But unlike Hoffman, he was rehired approximately three months later in circumstances that have not been adequately explained, to perform tasks that, in the end, would appear to make him Hoffman's replacement with a different title. He was thirty-six years of age. In consequence, summary judgment is inappropriate as to Hoffman's age discrimination claim. Because the allegations do not show tortious conduct other than prohibited discrimination covered by special statutes, however, Hoffman's claim under Article 1802 must be dismissed.
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 judgment as a matter of law." Fed. R. Civ. P. 56(c). The purpose of summary judgment is to pierce the pleadings and assess the proof in order to see whether there is need for trial.
The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact.
Once the moving party has satisfied this requirement, the nonmoving party has the burden of presenting facts that demonstrate a genuine issue of material fact for trial.
Hoffman worked for Hospital Metropolitano since 1995 until his lay off on September 30, 2012.
José Samuel Rosado was the Executive Director of Hospital Metropolitano in 2012. SUMF at ¶ 6. As such, he was in charge of all the departments in the hospital.
The Joint Commission is an independent, not-for-profit organization that accredits and certifies nearly 21,000 health care organizations and programs in the United States and Puerto Rico. The Commission's accreditation and certifications are recognized nationwide as a symbol of quality reflecting an organization's commitment to meeting certain performance standards. SUMF at ¶ 8. It conducts unannounced inspections. SUMF at ¶ 9. If a Hospital does not comply with the requirements of the Commission it can lose its certification. SUMF at ¶ 11. The Commission certifies Hospital Metropolitano. SUMF at ¶ 10.
In May 2009, the Commission performed an inspection of Hospital Metropolitano. SUMF at ¶ 12. Hoffman was present during the inspection. SUMF at ¶ 13. During the inspection, the Commission made several findings of noncompliance, issuing a report showing that the Department was not in compliance with the Commission's requirements. SUMF at ¶¶ 14, 15.
In May 2012, the Commission inspected Hospital Metropolitano. SUMF at ¶ 16.
After this inspection, Rosado considered closing the Department. SUMF at ¶ 42. The Hospital failed to comply with the Commission's requirements in 2006, 2009, and 2012. SUMF at ¶ 20. In 2012, the findings of deficiency were "higher than the usual findings the Commission makes after conducting a survey of a hospital." SUMF at ¶ 21.
The CMS oversees compliance of hospitals with the Medicare health and safety standards, and makes available to beneficiaries, providers/suppliers, researchers and State surveyors information about these activities. The survey (inspection) for this determination is done on behalf of CMS by the individual State Survey Agencies. SUMF at ¶ 23.
CMS certification is necessary for a hospital to be authorized to provide medical services to Medicare beneficiaries and Medicare Advantage beneficiaries. SUMF at ¶ 25. Because forty to fifty percent (40-50%) of Hospital Metropolitano's patients are Medicare and Medicare Advantage beneficiaries, lack of certification would impact its finances. SUMF at ¶ 41. Hospital surveys/inspections to obtain CMS certification are unannounced. SUMF at ¶ 26. Failure to comply with the requirements of Medicare may result in the hospital's closing. SUMF at ¶¶ 30, 31.
On July 9, 2012, CMS, through the Puerto Rico Health Department, notified Hospital Metropolitano that it would perform an inspection beginning on July 10, 2012. SUMF at ¶ 28. The inspection took place in July of 2012, after the Commission's inspection. SUMF at ¶ 29. During the inspection, CMS made findings of "Immediate Jeopardy" in areas under the supervision of the Department that required to be cured immediately or the CMS inspection would halt, and CMS certification would be revoked. SUMF at ¶ 32. Those deficiencies demonstrated lack of maintenance in the physical plant. SUMF at ¶ 37.
At the end of the inspection, inspectors held an exit conference with Hospital Metropolitano personnel to provide a summary of all the deficiencies, and instructed Hospital Metropolitano to start working on curing the deficiencies found and not wait until the written report arrived. SUMF at ¶ 33. The findings made by CMS during the July 2012 inspection were deficiencies that were supposed to have been corrected after the Commission's May 2012 inspection. SUMF at ¶ 39. By September 1, 2012, approximately ten percent (10%) of the findings related to the Department made by CMS had been corrected or cured.
On September 30, 2012, Rosado delivered to Hoffman a letter notifying the closing of the Department and of employees' layoff, as part of a restructuring and reorganization of the services provided by said department. SUMF at ¶¶ 45-46;
As of September 30, 2012, the Department consisted of nine individuals. POS at ¶ 5. They were: (i) Hoffman (62 years old) (POS at ¶ 4); (ii) Edgardo Ayala-Esquilín, a wood worker (56 years old) (POS at ¶ 5); (iii) Francisco Mulero-Báez, a handyman (66 years old) (POS at ¶ 6); (iv) Israel Acevedo-Pérez, a handyman (77 years old) (POS at ¶ 7); (v) Reynaldo Díaz-Pizarro, a refrigeration technician (62 years old) (POS at ¶ 8); (vi) José Martínez-Figueroa, a handyman (73 years old) (POS at ¶ 9); (vii) Sixto Jurado Hernández, a handyman (60 years old) (POS at ¶ 10); (viii) Melinda Llompart-Cruz, a secretary (26 years old) (POS at ¶ 11); and (ix) Giovanny Martínez, Supervisor (36 years old) (POS at ¶ 12). On January 14, 2013, Martínez, was hired by the Hospital as a Safety Officer (POS at ¶ 13 and Docket No. 170 at ¶ 13).
On October 19, 2012, CMS sent a letter to Hospital Metropolitano notifying that it would terminate the Medicare agreement with Hospital Metropolitano, after discovering during the inspection of July 13, 2012, that the Hospital was not in compliance with several of the Medicare Conditions of Participation for Hospitals, as found by both the CMS and the Joint Commission inspection. SUMF at ¶ 36; Docket No. 144, Exh. L.
After the Department's closing, Hospital Metropolitano contracted an external independent corporation, Facilities Services Management & Maintenance, Inc. ("FSMM"), to perform the duties of the Department. SUMF at ¶ 48. On October 1, 2012, Rosado, on behalf of Hospital Metropolitano entered into a services contract with FSMM. SUMF at ¶ 51. Pursuant to the Contract, the agreement was entered into for the purpose of maintaining the physical condition of the Hospital to be in optimum shape and foremost compliance with the state laws and regulations applicable to state and federal agencies and accrediting agencies, including but not limited to the Health Department of the Commonwealth of Puerto Rico, the Health Department of the United States and the Joint Commission on the Accreditation of Hospital Organizations. SUMF at ¶ 52. In this way, FSMM must ensure compliance with the requirements imposed by the different local, federal agencies and accrediting entities, and correct all of the findings of deficiency made by the different agencies and accrediting entities. SUMF at ¶ 53; Docket No. 144, Exh. M-1 at pp. 1, 2 and 6.
Hoffman contends that he was discriminated against because of his age in violation of the ADEA and Puerto Rico Law No. 100. Under the ADEA, an employer may not "discharge ... or otherwise discriminate against any individual with respect to [his] compensation, terms, conditions, or privileges of employment, because of [his] age." 29 U.S.C. § 623(a)(1). A plaintiff asserting a claim under the ADEA has the burden of establishing "that age was the `but-for' cause of the employer's adverse action."
Where, as here, there is no direct evidence of discrimination, courts evaluate ADEA claims under the burden-shifting framework drawn from
There are different formulations of the prima facie case.
In the First Circuit, however, the
Moving from the general to the particular, Hoffman (i) was over 40 years of age during the relevant period; (ii) was qualified for the position he had occupied for over 15 years;
As stated earlier, once plaintiff makes out a prima facie showing of discrimination, the defendant must articulate a legitimate, non-discriminatory reason for the challenged action. The Hospital states it has such a reason: its interest in promptly curing all deficiencies found by CMS, and ensuring future compliance with the Joint Commission's and CMS' standards to avoid adverse financial consequences. These are legitimate, non-discriminatory grounds for the employer's decision to close the Department and lay off Hoffman.
The record is devoid of any evidence demonstrating that the Hospital's articulated reason for its decision to close the Department is pretextual, much less a pretext to discriminate against Hoffman because of his age. To that end, Hoffman does not dispute the deficiency findings made by both the Commission and CMS, and does not even suggest that the members of those entities were motivated by any illegal or inappropriate factors. While he states that corrections had been made and were eventually cured (Docket No. 149 at p. 9-10, 12-13 and Docket No. 150 at ¶¶ 15, 18, 19, 21, 32, 34), "an employee generally could be performing satisfactorily in some areas of the job, yet be deficient in others," but that does not deprive an employer of the right to terminate employees with performance deficiencies.
Hoffman points out that he had received good performance ratings (Docket No. 149 at p. 10). Past satisfactory reviews do not call into question subsequent criticism even when they culminate in a discharge.
Viewing the evidence in the light most favorable to Hoffman, this would be the end of the story if Martínez had not been rehired. But Martínez was rehired approximately three months after the closing, whereas Hoffman was not. Events are not frozen in time when a downsizing is implemented, for they alter the configuration of the workplace. Neutrality is gauged against the decisional process leading up to the downsizing and the attendant result and consequences. Therefore, in line with this principle, the Hospital contends that some of the functions and duties that Hoffman carried out were later assigned to Martínez, but that Martínez no longer works in the Department nor holds the position of Physical Plant Director (Docket No. 169 at pp. 10-11). By extension, it argues, no inference of prohibited discrimination may be drawn from these events.
It is true that in general, an employee cannot be said to have been replaced when functions are reallocated.
To test the implications of the Hospital's actions, consider the hypothetical that Martínez had been retained at the time of the closing. In such a case, to secure a dismissal, the Hospital would at least need to explain why it retained the younger employee. Granting that Hoffman was the Director and Martínez the Supervisor, the record is unclear as to whether their functions were mirror images of the other. In the same way, to demonstrate that Martínez was not retained to effectively carry out Hoffman's job, the record would have to shed light on what it was that Martínez and Hoffman did, and how those tasks compare to the tasks that he is presently carrying out.
Fast-forwarding to the facts at hand, the situation is not far different to the one described in the hypothetical. As developed, the record is insufficient to rule out that Martínez ended up as Hoffman's de facto replacement with another title barely three months after the closing, overseeing not a department but functions effectively related to the Hospital's physical plant that Hoffman oversaw and was in charge of. To be sure, there is no physical plant department; it was closed. And a contractor was hired to do what the department had been held accountable for. But as the court interprets the facts, Martínez may be overseeing the contractor, and may have been doing so since shortly after the closing, in effect making him responsible before the Hospital's eyes for the contractor's performance much like Hoffman had been responsible for the Department's performance before it closed.
The lack of explanation backed up by admissible evidence on these core issues is fatal to the Hospital's motion for summary judgment.
Puerto Rico Law 100 "provides a cause of action in favor of persons who suffer discrimination in their employment because of their age. A plaintiff establishes a prima facie case of discrimination under this statute by demonstrating that (1) she suffered an adverse employment action, (2) the adverse action lacked just cause; and (3) there exists some basic fact substantiating the type of discrimination alleged.
Hoffman seeks payment for physical pain and suffering under Article 1802 of the Puerto Rico Civil Code because of defendants' intentional discrimination against him (Docket No. 29 at ¶ 51). Article 1802, Puerto Rico's general tort statute, provides that a person who by an act or omission causes damages to another through fault or negligence shall repair the damage so done. P.R. Laws Ann. tit. 31 § 5141. To the extent a specific labor or employment statute covers the conduct for which a plaintiff seeks damages, he is barred from relying on the same conduct to support a claim for damages under Article 1802.
In light of the foregoing, the court GRANTS IN PART and DENIES IN PART the Hospital's motion for summary judgment at Docket No.143. Summary judgment is inappropriate as to Hoffman's age discrimination claims. Given that the allegations do not show tortious conduct other than prohibited discrimination covered by special statutes, however, Hoffman's claim under Article 1802 must be dismissed. The jury will be informed during trial of the uncontested facts set forth at Section II of this Opinion.
Docket No. 150, Exh. 1-B at p. 137.
