Filed: Jan. 25, 2010
Latest Update: Feb. 22, 2020
Summary: summary judgment on her ADEA claims.performance review of Plaintiff.pasting one report into others instead of writing 4 individualized reports for each call).adverse employment action.allegedly ageist remarks.v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir.
Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
___________________
No. 09-1453
DORIS ORTIZ-RIVERA,
Plaintiff, Appellant,
v.
ASTRA ZENECA LP,
Defendant, Appellee,
INSURANCE COMPANIES A, B, C; JOHN DOES 1 THROUGH 3,
Defendants.
___________________
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
___________________
Before
Lipez, Baldock, * and Howard, Circuit Judges.
___________________
Jorge Miguel Carazo-Quetglas and Carazo-Quetglas Law
Offices for appellant.
Lourdes C. Hernandez-Venegas and Schuster Aguiló LLP for
appellee.
January 25, 2010
*
Of the Tenth Circuit, sitting by designation.
BALDOCK, Circuit Judge. Plaintiff Doris Ortiz-Rivera
appeals from the district court’s grant of summary judgment
for Defendant Astra Zeneca LP in her suit involving claims
under the Age Discrimination in Employment Act (ADEA) and
similar claims under Puerto Rico law. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
“We review the district court’s grant of summary
judgment de novo, drawing all reasonable inferences in favor
of the nonmoving party.” Sonoran Scanners, Inc. v.
Perkinelmer, Inc., 585 F.3d 535, 539–40 (1st Cir. 2009).
Plaintiff argues the district court erred in granting
summary judgment on her ADEA claims. She then argues the
district court erred in dismissing her claims under Puerto
Rico law. We address each argument in turn.
The parties are familiar with the facts, and we
therefore repeat them here only briefly. Plaintiff was born
on January 17, 1966. Defendant hired Plaintiff to be a
pharmaceutical sales specialist on August 8, 2005.
Supervisor Vanessa Gonzales (born August 15, 1970) and her
supervisor, Elsa Saavedra (born November 3, 1957), both
participated in the hiring process. Plaintiff’s job
involved visiting physicians and obtaining orders for
Defendant’s products. After observing several
inconsistencies and possible misrepresentations in
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Plaintiff’s work and reports, Gonzales sought counsel from
John Kriegsmann (born September 27, 1943) in human
resources. He recommended that Gonzales conduct a
performance review of Plaintiff. Gonzales discovered
several problems that caused her to question Plaintiff’s
honesty. Saavedra likewise reviewed Plaintiff’s performance
and had similar concerns. On Kriegsmann’s recommendation,
Gonzales and Saavedra met with Plaintiff to discuss these
problems. After determining that her responses were
unsatisfactory, they decided to terminate her on March 17,
2006. On that date, Plaintiff was forty years and two
months old; Gonzales was thirty five years, seven months,
and two days old; Saavedra was forty eight years, four
months, and fourteen days old; and Kriegsmann was sixty two
years, five months, and twenty one days old.
Plaintiffs making a case under the ADEA with indirect
evidence may use the burden shifting analysis outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05
(1973). Torrech-Hernández v. General Electric Co.,
519 F.3d
41, 48 (1st Cir. 2008). In analyzing cases under this
framework, we may put aside the question whether a plaintiff
established a prima facie case of age discrimination under
the ADEA and consider first whether “there is evidence that,
notwithstanding the employer’s stated reasons for the
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termination, the real reason, at least in part, was
age . . . discrimination.” Hillstrom v. Best Western TLC
Hotel, 354 F.3d 27, 31 (1st Cir. 2003); see also Rivera-
Aponte v. Restaurant Metropol #3, Inc.,
338 F.3d 9, 11 (1st
Cir. 2003) (assuming arguendo that the plaintiff could
establish a prima facie case and considering whether he
could prove his employer had a discriminatory motive for
discharging him).
Defendant presented evidence of several grounds for
terminating Plaintiff. First, Plaintiff received a law
degree but did not include it on her resume or job
application, even though she included a master’s degree in
English linguistics. Second, she misrepresented information
on expense reports and failed to follow protocol when she
claimed expenses for ten people at “lunch and learn”
meetings though fewer than ten attended. Third, Plaintiff’s
six-month performance review revealed multiple occasions on
which she had reported several visits to doctors in a five
to seven minute period, and her supervisors considered this
to be insufficient time to make a proper call. Fourth, the
review showed Plaintiff often failed to work the required
seven and a half hours each day. Fifth, Plaintiff violated
company policy by using “mass assignments” (cutting and
pasting one report into others instead of writing
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individualized reports for each call). Defendant argues any
one of these instances is grounds for termination, and all
of them raised serious doubts about Plaintiff’s honesty.
Defendant thus satisfied its burden of production by
articulating “‘a legitimate, nondiscriminatory basis for its
adverse employment action.’” Torrech-Hernández, 519 F.3d at
48 (quoting Hoffman v. Applicators Sales & Serv., Inc.,
439
F.3d 9, 17 (1st Cir. 2006)).
To demonstrate pretext, Plaintiff relies on four
allegedly ageist remarks. First, when she traveled to
supervisor Vanessa Gonzales’s house to pick up materials for
work, she informed Gonzales that she was suffering from a
medical condition. Gonzales told her to visit a doctor and
said “those things come with age.” Second, during a break
at a work meeting, a coworker was selling bikinis. When
Plaintiff asked whether there was one for her, Gonzales said
she was “too old for one.” Third, when Gonzales met with
Plaintiff to discuss the improper expense reports, she told
Plaintiff “you are too old, Doris. You are too old for
this. You are too old to be making these mistakes. This
is unacceptable.” Fourth, when Gonzales and her supervisor,
Elsa Saavedra, met with Plaintiff to discuss concerns about
her performance and dishonesty, they told her she “was old
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enough to know what it means to lie and to omit”
information.
As the district court noted in its thorough and well-
reasoned order, “‘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). The first
two remarks, concerning a medical problem and bikinis, were
rude but not related to the decision to terminate
Plaintiff’s employment. In Straughn v. Delta Air Lines,
Inc.,
250 F.3d 23, 36 (1st Cir. 2001), we said: “[T]hough
such ‘stray remarks’ may be material to the pretext inquiry,
‘their probativeness is circumscribed if they were not
related to the employment decision in question . . . .’”
(quoting McMillan v. Massachussetts Soc’y for Prev. of
Cruelty to Animals,
140 F.3d 288, 301 (1st Cir. 1998)). On
the facts of this case, Gonzales’s stray remarks concerning
a medical problem and bikinis are not significantly
probative of pretext.
Id. “Although statements directly
related to the challenged employment action may be highly
probative in the pretext inquiry, mere generalized ‘stray
remarks,’ arguably probative of bias against a protected
class, normally are not probative of pretext absent some
discernible evidentiary basis for assessing their temporal
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and contextual relevance.” Id. Taken in the light most
favorable to Plaintiff, the second two statements are, at
best, ambiguous. Though made by supervisors close to the
time of Plaintiff’s termination, they arguably reflect a
belief that positive attributes such as honesty and accuracy
come with age. Both could be expressions of confusion about
Plaintiff’s actions, admonishments to act responsibly, or
remarks indicating animus. Because these statements are
ambiguous, they are insufficient to prove Defendant’s
discriminatory intent. See Lehman v. Prudential Ins. Co. of
Am.,
74 F.3d 323, 329 (1st Cir. 1996) (“Isolated, ambiguous
remarks are insufficient, by themselves, to prove
discriminatory intent.”). Additionally, the context
provides no additional evidence of discriminatory intent:
Two of the same supervisors participated in hiring and
firing Plaintiff; those supervisors provided several valid
concerns about Plaintiff’s honesty; and two of the three
people who participated in the decision to fire Plaintiff
are more than five years her senior. Therefore, we agree
with the district court that Plaintiff failed to provide
sufficient evidence that Defendant’s stated reasons for
terminating her were pretextual.
Plaintiff also argues the district court should not have
dismissed her claims under Puerto Rico law. While a
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district court may exercise supplemental jurisdiction over
nonfederal law claims, the court may also “decline to
exercise supplemental jurisdiction over a claim . . . if the
district court has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367. See Marrero-
Gutierrez v. Molina, 491 F.3d 1, 7 (1st Cir. 2007). Because
the district court properly dismissed Plaintiff’s claims
under federal law, it did not err in dismissing without
prejudice her claims under Puerto Rico law as well.
AFFIRMED.
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