Filed: Dec. 29, 2005
Latest Update: Feb. 21, 2020
Summary: various Puerto Rico statutes. However, this opinion is, also binding on appellant Lydia Rosado and the conjugal partnership, formed between appellants Aurelio and Lydia Rosado.WPR action plan, and provide leadership in Mr. Rosados absence.never states what is that pertinent evidence.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1325
AURELIO ROSADO, ET AL.,
Plaintiffs - Appellants,
v.
WACKENHUT PUERTO RICO, INC., ET AL.,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
Carter,* Senior District Judge,
Celina Romany, with whom Juan M. Frontera Suau and Celina
Romany Law Offices were on brief, for appellants.
José J. Sánchez Vélez, with whom Yldefonso López Morales,
Eileen M. García Wirshing and O’Neill & Borges Law Firm were on
brief, for appellees.
December 29, 2005
*
Of the District of Maine, sitting by designation.
CARTER, Senior District Judge. Plaintiffs/Appellants,
Aurelio Rosado, Lydia Rosado, and the conjugal partnership formed
between them, filed the present complaint against
Defendants/Appellees, Wackenhut Puerto Rico (“WPR”) and Wackenhut
International, Inc. (“WII”) (collectively “the Wackenhut
defendants”). Plaintiffs allege violations of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et
seq. (1994 & Supp. 2003); the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12131 et seq. (1994 & Supp. 2003); and
various Puerto Rico statutes. The district court granted
Defendants’ Motion for Summary Judgment on all counts of
Plaintiffs’ Verified Complaint. Plaintiffs appeal.1
I.
Facts and Procedural History
The district court accurately summarized the facts as
follows. WII is the parent company of WPR, a subsidiary company
dedicated to providing security and surveillance services in the
Puerto Rico private and public sectors. Mr. Rosado worked at WPR
as general manager from January 31, 1989 until July 12, 2002,
when he was terminated. As general manager, Mr. Rosado possessed
broad responsibility and discretion for WPR’s operations, but his
1
In the interest of clarity, we discuss the case with exclusive
reference to appellant Aurelio Rosado. However, this opinion is
also binding on appellant Lydia Rosado and the conjugal partnership
formed between appellants Aurelio and Lydia Rosado.
-2-
actions were ultimately subject to WII corporate headquarters’
approval. Mr. Rosado’s responsibilities included submitting
monthly operations reports, balance sheets, and profit and loss
sheets to the Vice-President of WPR Operations, Fernando Hegel,
and the President of WII, William Morrow. Mr. Rosado was subject
to periodic performance evaluations, and received yearly bonuses
based upon his performance and operational results.
During the first several years of Mr. Rosado’s
managerial guidance, WPR performed well. At its peak, WPR drew
$33 million in revenues. Mr. Rosado received positive
evaluations and was rewarded with favorable bonuses. Between
1999 and 2001, WPR lost a significant number of government
contracts, and revenue dropped by half. While both parties admit
that there was recognition that WPR needed to lessen its reliance
on government contracts, which were ephemeral, and to instead
redirect sales toward the private sector, the Wackenhut
defendants and Mr. Rosado each claim that the other party was
unresponsive in joining to remedy the problem.
After the conclusion of a fruitless dialogue between
Mr. Rosado and the Wackenhut defendants on righting WPR’s ship,
in June 2001, Mr. Morrow and Mr. Hegel directed John Griffey, a
WII Field Support Operations Special Project Manager, to visit
WPR. Mr. Griffey was directed to draft a sensitivity report
assessing WPR’s operations and issuing recommendations for
-3-
improvement, based upon his visit to Puerto Rico. The
sensitivity report highlighted the need for improved collections,
operational efficiency, and increased sales. In late January or
early February 2002, Mr. Morrow and Mr. Hegel met with Mr. Rosado
in Puerto Rico to discuss how to improve WPR’s grim state of
affairs. Mr. Morrow strongly expressed his dissatisfaction with
WPR’s performance and the need for drastic change, and directed
Mr. Rosado to submit a comprehensive action plan by the end of
February 2002.
Several days after the meeting took place, Mr. Rosado
suffered a cardiac arrest.2 Mr. Rosado was hospitalized and in
recovery for approximately fifty-five days before returning to
work. Mr. Rosado was unable to work on the action plan during
his recovery. Mr. Morrow and Mr. Hegel directed Mr. Griffey, who
had become familiar with WPR’s operations during his earlier
visit, to return to Puerto Rico, assist in the preparation of the
WPR action plan, and provide leadership in Mr. Rosado’s absence.
Mr. Rosado returned to work in April 2002, but Mr.
Griffey remained at WPR. Mr. Rosado claims that WPR employees
were now answering exclusively to Mr. Griffey’s command and that
although when questioned as to his formal role Mr. Griffey was
purposefully ambiguous, Mr. Griffey had become WPR’s de-facto
2
This was Mr. Rosado’s second heart attack. His first heart
attack took place in April 1998.
-4-
general manager. Mr. Rosado claims that while he retained his
formal title as general manager, he had lost all authority at
WPR.
Shortly after Mr. Rosado returned, Mr. Hegel requested
that he review Mr. Griffey’s action plan and either approve Mr.
Griffey’s plan or, in the alternative, submit his own action
plan. Mr. Rosado reviewed and, with some reservations, adopted
Mr. Griffey’s action plan.
In or around May 2002, Miguel Angel Escobar, the
President of Wackenhut El Salvador (“WES”), placed a telephone
call to Mr. Rosado.3 During the conversation, Mr. Escobar asked
Mr. Rosado, “Why don’t you retire?” Mr. Escobar suggested that
“things would probably be easier for everyone” if Mr. Rosado
retired.
Approximately one month later, Mr. Morrow made the
decision to terminate Mr. Rosado. On July 12, 2002, Mr. Hegel
informed Mr. Rosado that he was terminated. Upon Mr. Hegel’s
recommendations, Mr. Morrow appointed Mr. Griffey as the new
general manager for WPR.
Mr. Rosado filed the instant action alleging violations
of the ADEA, the ADA and various Puerto Rico statutes. The
district court granted the Wackenhut defendants’ Motion for
3
Like WPR, WES is a subsidiary of WII. WES’s leadership has
no authority over WPR.
-5-
Summary Judgment on all counts of Mr. Rosado’s Verified
Complaint.
II.
Summary Judgment Standard
The standard for summary judgment is straightforward
and well-established. A district court may enter summary
judgment upon a showing “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). We review summary
judgment rulings de novo, construing the record evidence in the
light most favorable to, and drawing all reasonable inferences in
favor of, the nonmoving party. Straughn v. Delta Air Lines,
Inc., 250 F.3d 23, 33 (1st Cir. 2001); Feliciano de la Cruz v. El
Conquistador Resort & Country Club,
218 F.3d 1, 5 (1st Cir.
2000). Summary judgment is appropriate when “there is no genuine
issue as to any material fact.” Fed. R. Civ. P. 56(c). “Even in
employment discrimination cases where elusive concepts such as
motive or intent are at issue,” summary judgment is appropriate
if the non-moving party rests “merely upon conclusory
allegations, improbable inferences, and unsupported speculation.”
Feliciano, 218 F.3d at 5 (quoting Medina-Munoz v. R.J. Reynolds
Tobacco Co.,
896 F.2d 5, 8 (1st Cir.1990))(internal quotations
omitted). It is within this procedural framework that we assess
Mr. Rosado's claims. Our review is not constrained by the lower
-6-
court's stated rationale; we may affirm the entry of summary
judgment on any ground supported by the record. See Houlton
Citizens' Coal. v. Town of Houlton, 175 F.3d at 178, 184 (1st
Cir. 1999).
The ADEA Claim
The ADEA makes it unlawful for an employer to discharge
any individual or otherwise discriminate against him on the basis
of his age. See 29 U.S.C. § 623(a)(1). Since there is no direct
evidence which demonstrates the Wackenhut defendants’ alleged
discriminatory animus against Mr. Rosado, we must consider the
multi-part McDonnell Douglas test. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-805 (1973). Applying the McDonnell
Douglas framework, Mr. Rosado must first “demonstrate that he
(1) was at least forty years of age, (2) met the employer’s
legitimate job performance expectations, (3) experienced adverse
employment action; and (4) was replaced by a person with roughly
equivalent job qualifications.” Goldman v. First Nat’l Bank of
Boston,
985 F.2d 1113, 1117 (1st Cir. 1993). The record supports
the conclusion that Mr. Rosado satisfies the prima facie case
factors. The burden of production then shifts back to the
employer who must rebut the inference of discrimination by
articulating some legitimate, non-discriminatory reason for the
adverse employment action. Dominquez-Cruz v. Suttle Caribe,
Inc.,
202 F.3d 424, 430 (1st Cir. 2000). Mr. Rosado admits, and
-7-
this Court finds, that the Wackenhut defendants have satisfied
their burden of production by asserting that Mr. Rosado was
discharged because his managerial performance since 1998 was
unsatisfactory and because WPR was suffering a lack of effective
leadership.
In the final stage of the analysis the burden shifts
back to Mr. Rosado to show that the employer’s alleged
justification was not its true reason for the adverse employment
action, but was a mere pretext for age discrimination. Id.;
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991).
The ADEA “does not stop a company from discharging an employee
for any reason (fair or unfair) or for no reason, so long as the
decision to fire does not stem from the person’s age.” Freeman
v. Package Mach. Co.,
865 F.2d 1331, 1341 (1st Cir. 1988). Mr.
Rosado must produce evidence beyond the mere assertion that the
alleged justification is implausible and show that the employer’s
discriminatory animus actually motivated the adverse employment
action. See
Mesnick, 950 F.2d at 825.
The record is devoid of any sign that anyone in a
decision-making role, including Mr. Morrow and Mr. Hegel, bore
any discriminatory animus toward Mr. Rosado. Appellant fails to
present evidence necessary to show that the Wackenhut defendants’
given reasons for the termination were pretextual. Appellant
makes sweeping statements but fails to cite to any material fact
-8-
in controversy in the record. Although appellant states that
“the district court has completely ignored most, if not all, of
Plaintiff’s pretext evidence,” he never discloses what evidence
the district court disregarded. Appellant’s Brief at 21.
Generally, appellant criticizes the district court for missing
important considerations such as “the significance of assessing
the whole picture, proximity in time, and the employer’s control
of information.” Appellant’s Brief at 22. But, here again, he
never states what is that pertinent evidence.
Even if we were to consider appellant’s unsupported
arguments, the evidence fails to create a trial-worthy age
discrimination claim. Appellant states that according to
Wackenhut corporate officers Mr. Rosado was aware that a
sensitivity report was being prepared but Mr. Rosado denies that
he knew the reasons for Mr. Griffey’s visit to the island.
Assuming that there is contradictory testimony on this point,
such conflict does not support the inference that the reason
given by the Wackenhut defendants for Mr. Rosado’s termination
was a pretext for age discrimination. Appellant also attempts to
draw some inference of pretext from the February 2002 meeting
between Mr. Morrow and Mr. Rosado wherein Morrow discussed the
sensitivity report’s conclusions with Mr. Rosado, which were
apparently unknown to Rosado until that time. However, the fact
that Mr. Rosado was kept out of the loop on the sensitivity
-9-
report does not in any way suggest that the Wackenhut defendants’
performance-based reasons for terminating Mr. Rosado were false.
Finally, appellant suggests that when Mr. Morrow asked
him to create an action plan for WPR, Mr. Morrow was giving Mr.
Rosado an opportunity to improve the company’s economic
situation. Because he was terminated less than three months
after returning to work from the heart attack, appellant suggests
that there is sufficient evidence in the record for a trier of
fact to conclude that the chance Mr. Morrow gave him was just a
false gesture in a discriminatory cover-up scheme. However, the
timing of his termination, standing alone or even in conjunction
with being kept out of the loop on the sensitivity report, does
not in any way suggest that the Wackenhut defendants’
performance-based reasons for terminating Mr. Rosado were false.
Appellant has not presented any evidence besides his age and Mr.
Griffey’s presence pointing to age as a factor in his
termination. Moreover, appellant has made no attempt to
demonstrate that WPR’s economic losses under Mr. Rosado’s
leadership were fabricated by the company to conceal his
superiors’ discriminatory motives.
The ADA Claim
To establish a claim of disability discrimination under
the ADA, a plaintiff must prove, by a preponderance of evidence,
that he (1) was disabled within the meaning of the ADA, (2) was
-10-
able to perform the essential functions of the job with or
without reasonable accommodation, and (3) was discharged by the
employer in whole or in part because of his disability. Jacques
v. Clean-Up Group, 96 F.3d 506, 511 (1st Cir. 1996). Appellant
does not allege any direct evidence of disability discrimination.
Here again, in the absence of direct evidence, Mr. Rosado may
“indirectly” prove his case by “using the prima facie case and
burden shifting methods originated in McDonnell Douglas.”
Jacques, 96 F.3d at 511 (quoting Katz v. City Metal Co.,
87 F.3d
26, 30 n.2 (1st Cir. 1996)).
Under McDonnell Douglas Mr. Rosado must demonstrate by
a preponderance of evidence that he (1) has a disability within
the meaning of the ADA, (2) is qualified to perform the essential
functions of the job, with or without reasonable accommodations,
(3) was subject to an adverse employment action by a company
subject to the ADA, (4) was replaced by a non-disabled person or
treated less favorably than non-disabled employees, and (5)
suffered damages as a result. Id. The district court granted
defendants’ motion for summary judgment after finding that Mr.
Rosado failed to establish a prima facie case under the ADA.
Appellant correctly asserts that it is not necessary
that he actually be disabled, but that it is sufficient that his
employer regarded him as disabled. Considering this theory of
liability, the district court found that Mr. Rosado’s assertion
-11-
that he “must have been generally perceived as impaired because
of his shortness of breath” was not supported by the record. On
appeal Mr. Rosado again contends that the Wackenhut defendants
terminated him because he was perceived as being “an old man who
had suffered a second heart attack which prevented him from
performing the task required from a manager in the industry.”
Appellant’s Brief at 34. To support this statement, appellant
states that anyone observing him after he returned would have
noticed physical changes that would have led them to conclude
that he was disabled or could not do the job. However, appellant
does not cite to any evidence in the summary judgment record that
even upon noticing his shortness of breath, anyone entertained
the belief that he was disabled. Without providing evidence of a
single instance of misperception by any particular person or
group of persons, Mr. Rosado can not satisfy his prima facie
burden under the ADA.
Although appellant suggests that after he returned to
work he was universally treated as if he was completely incapable
of performing the duties of general manager, his only support for
this conclusion is that he was required to have Mr. Griffey
authorize his decisions before they became final. Mr. Rosado
makes no citation to the evidentiary record to support the
assertion that his decisions had to receive prior authorization
from Mr. Griffey. However, even if Mr. Griffey was exercising
-12-
oversight over Mr. Rosado’s decisionmaking at WPR, there is no
evidence that this is related to a perception by the Wackenhut
defendants that Mr. Rosado is disabled rather than to the
troubled financial condition of WPR and the corporate effort to
implement the action plan, which Mr. Griffey was instrumental in
developing. Without record support for the inference that the
alleged oversight was in some way connected to Mr. Rosado’s
shortness of breath, Mr. Rosado can not establish a prima facie
case under the ADA.
The district court’s judgment is affirmed.
-13-
