PEDRO A. DELGADO-HERNÁNDEZ, United States District Judge.
Plaintiffs initiated this action in the Carolina Part of the Court of First Instance of Puerto Rico against Executive Airlines, Inc. and others,
During discovery, plaintiffs unsuccessfully requested information on defendants' employees and openings outside of Puerto Rico. Before the court is their "Motion to Compel Discovery and Memorandum of Law in Support Thereof" (Docket No. 43), which defendants opposed (Docket No. 47). Plaintiffs replied (Docket No. 51). For the reasons explained below, the motion to compel is DENIED.
Pursuant to Fed.R.Civ.P. 26(b)(1), discovery may be obtained as to any non-privileged material relevant to any party's claim or defense that is reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs allege to have been dismissed from their employment without just cause and because of their age (Docket No. 31 at ¶¶ 62, 63). They claim the employer did not follow seniority, retaining and subsequently reemploying younger, less experienced personnel to perform the same and/or similar work to the one they performed at the time of their dismissal,
Defendants assert that Executive Airlines shut down flight operations, as a result of which plaintiffs were dismissed (Docket No. 47 at pp. 1-2). They state that plaintiffs were employed as Passenger Service Agents out of Luis Munoz Marin International Airport in Puerto Rico ("SJU"), and the airline no longer employs personnel at SJU in the occupational classification plaintiffs worked in.
Law No. 80 requires the employer to pay a statutory indemnity to employees hired for undefined term who are dismissed from their employment without just cause.
If the employer terminates a more senior employee and retains a less senior employee within the same occupational classification, the employer has acted without just cause unless there is a clear and conclusive difference in favor of the capacity or efficiency of the less senior employee retained, in which case the higher capacity/efficiency prevails.
These preferential retention/recall rules must be followed to avoid liability even though the reason for the workforce reduction is otherwise considered just cause. In general, they must only be applied within the occupational classification at the adversely impacted site. So they are normally applied comparing only the employees at the office, factory, branch or facility affected by the workforce reduction.
At another level, when there is a regular and usual practice of transferring employees from one site to the other and the various sites operate in a relatively integrated manner in regard to personnel matters, the employer will need to compare the seniority, performance, and capacities of the employees in the affected occupational classifications working at the various sites that operate in such an integrated manner.
Finally, preferential treatment obligations carry over to certain asset-transfer transactions. Article 6 imposes them upon the assets acquirer, provided it operates those assets as an ongoing business.
Law No. 100 prohibits the employer from discriminating against employees and applicants for employment because of their age, sex, race and other protected characteristics. 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 to have occurred.
If the prima facie showing is made, a statutory presumption of liability is triggered, shifting to the employer the burden of showing by a preponderance of the evidence that the action was not motivated by discrimination. For these purposes, the term "just cause" is construed by reference to the meaning given to the term under Law No. 80.
With this background, plaintiffs request an order compelling defendants to produce:
Plaintiffs' request must be measured against the allegations setting forth their claim. In essence, they allege to have been dismissed on March 31, 2013 from their employment and that their discharge was unjust and discriminatory because the employer dismissed them in violation of statutory seniority rules, and retained and hired younger, less experienced personnel thereafter to do the job plaintiffs had done within the same occupational classification (Docket No. 31 at ¶¶ 62-64). The court reads plaintiffs' claim as one of unjust discharge linked to discrimination, in the sense that the employer acted without just cause under Law No. 80 because it violated the statute's preferential retention/recall provisions, and for that reason, should be presumed to have discriminated against plaintiffs because of their age under Law No. 100 (Docket No. 31 at ¶ 94).
Plaintiffs identify Executive Airlines as their "direct employer."
Plaintiffs argue that even assuming the preferential retention/recall rules were followed within Executive Airlines, those rules were violated when the remaining defendants are brought into the mix, because there are other younger, similarly classified employees with less seniority
In
On appeal from the dismissal, the First Circuit viewed
In line with the First Circuit's view, Law No. 80 does not bring into the analytical mix corporate entities other than the entity where the dismissal occurred. Because Executive Ground Services, Inc.; Envoy, Inc.; American Airlines, Inc.; and American Airlines Group, Inc. have been identified as different corporate entities — and there is no allegation that they are corporate shams created to avoid obligations — whether those entities employ or employed personnel outside of Puerto Rico within the occupational classifications plaintiffs alleged to have occupied, is irrelevant for seniority evaluation purposes under Law No. 80.
Plaintiffs contend that all of the employees of Executive Airlines that were not dismissed on March 31, 2013 and that were under the payroll of Executive Airlines as of December 31, 2013, are now under the payroll of Executive Ground Services or Envoy (Docket No. 31 at ¶ 32). Even though, by mentioning successive dates of employment with different entities, plaintiffs seem to be referring to a successorship, the allegation does not lead to the discovery they have asked for.
In general, successorship describes a situation where one entity has succeeded
To determine whether successorship exists, the Puerto Rico Supreme Court has relied on some of the elements defining a successor employer under the National Labor Relations Act. Those elements include:
From this framework, if Executive Ground Services or Envoy were considered a successor, they may be liable for Executive Airlines' violations of the preferential treatment provisions of Article 3. As Executive Airlines has been alleged to operate one establishment — in Puerto Rico — information related to out-of-Puerto Rico openings and hiring would be irrelevant. Similarly, if Executive Ground Services or Envoy were an acquirer of an ongoing business under Article 6, they could face liability if during the six month period following the business transfer, they hired personnel within the occupational classifications plaintiffs were assigned to in SJU without complying with those provisions.
Failure to comply with those rules would mean that all or some of Executive Airlines employees' preferential treatment rights would have been violated and, by extension, that their dismissal would lack just cause. While evaluation of the ongoing business scenario requires data on transfers, only information regarding personnel transactions in Puerto Rico or to and from
To the extent plaintiffs rely on absence of just cause for their dismissal under Law No. 80 to trigger the discrimination presumption set in Law No. 100, discovery obligations must be assessed against the parameters already discussed in connection with Law No. 80. Along the same line, as stated previously, to complete a prima facie case of discrimination plaintiffs would need some basic fact substantiating the type of discrimination alleged.
To that end, plaintiffs could show, among other things, that Executive Airlines retained significantly younger, less senior employees within plaintiffs' occupational classification in Puerto Rico; that Executive Airlines re-hired less senior, substantially younger employees within Puerto Rico to occupy positions within plaintiffs occupational classification; or that a successor gave preference in hiring within that classification in Puerto Rico to less senior, significantly younger employees within the six-month window following the transfer. In consequence, information on out-of-Puerto Rico employees would not be necessary to satisfy a prima facie burden under Law No. 100, and thus, would not have to be disclosed during discovery.
Plaintiffs allege that they "were not offered positions that were actually available and the offerings that they were made were not real, genuine or reasonable" (Docket No. 31 at ¶ 65). It is not clear whether they applied to a particular position or positions, and having so applied, if their applications were rejected. Should that be the case, plaintiffs may be entitled to know the characteristics of the persons hired, if any, in the positions they applied for. And that would be the case not only for positions in Puerto Rico, because the scenario would have to be evaluated under the rubric of a failure-to-hire claim.
In view of the foregoing, plaintiffs' motion to compel is DENIED. Defendants