GUILLEN-GONZALEZ v. JC PENNEY CORP., INC. (P.R. 8-16-2010)

Once a properly supported motion has been presented, the opposing party has the burden of demonstrating that a trial-worthy issue exists that would warrant the Court's denial of the motion for summary judgment. For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int'l., Inc., 229 F.3d 49, 53 (1st Cir. 2000).

In order for a factual controversy to prevent summary judgment, the contested facts must be "material" and the dispute must be "genuine." Material means that a contested fact has the potential to change the outcome of the suit under governing law. The issue is genuine when a reasonable jury could return a verdict for the nonmoving party based on the evidence.See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is well settled that "[t]he mere existence of a scintilla of evidence" is insufficient to defeat a properly supported motion for summary judgment. Id. at 252. It is therefore necessary that "a party opposing summary judgment must present definite, competent evidence

to rebut the motion." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).

In making this assessment, the Court "must view the entire record in the light most hospitable to the party opposing summary judgment, indulging in all reasonable inferences in that party's favor."Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). The court may safely ignore, however, "conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

A. Timeliness of Guillen's Age Discrimination Claims Demotion Claim

JC Penney first asserts that Guillen's age discrimination claim for demotion is untimely because he failed to file his charge within the period allotted by law. "In states which have enacted employment discrimination laws like Puerto Rico ("deferral states"), plaintiffs must file charges of unlawful discrimination [based on a protected category] within 300-days after the alleged unlawful employment practice occurred."Portugues-Santa v. B. Fernandez Hermanos, Inc., 614 F.Supp.2d 221, 232-33 (D.P.R. 2009) (citing 42 U.S.C. § 2000e-5(e)(1); Fontanez-Nuñez v. Janssen Ortho. LLC., 447 F.3d 50, 55 (1st Cir. 2006); American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 122 (1st Cir. 1998); Lawton v. State Mut. Life Assurance Co. of America, 101 F.3d 218, 221 (1st Cir. 1996); Cardona v. Aramark Services of Puerto Rico, Inc., 9 F.Supp.2d 92, 97-98 (D.P.R. 1998)).

JC Penney reclassified Guillen on October 24, 2004. More than 300 days elapsed before October 6, 2005, when Guillen filed a charge based on his reclassification. JC Penney points out that "plaintiff's counsel admitted the same" to the Court in the scheduling conference. (Docket No. 21 at 5.) Moreover, Guillen himself states in his opposition brief that his ADEA discrimination and retaliation claims in this case relate to the failure to promote Guillen since October 2004 up to and including failures to promote through 2008. (Docket No. 33 at 6-7.) According to Guillen's opposition brief, "the facts related to the reclassification (demotion) of October 24, 2004, are brought in the complaint as a background for the subsequent discriminatory and retaliatory actions . . ." Id. The Court finds Guillen's statements untruthful. In his complaint, Guillen clearly states that his age discrimination claim is based on his demotion "even though he was performing his job at a level that met [JC Penney's] expectation." (Docket No. 1 at 4.) Regardless, however, of Guillen's labored attempted to separate himself from that initial untimely allegation, claiming belatedly that those allegations were background information, and not allegations at all, the Court notes here for the record that Guillen's claims based on his reclassification are time-barred and therefore DISMISSED WITH PREJUDICE. Failure to Promote Claim(s)

JC Penney has not moved the Court to consider the timeliness of Guillen's remaining age discrimination claim or claims based on JC Penney's alleged failures to promote Guillen. The Court will nevertheless address their timeliness in brief, although its decision to dismiss Guillen's failure to promote claims is based on their lack of merit, as discussed below.

A defendant's failure to promote is considered a discrete act constituting "a separate actionable `unlawful employment practice,'"National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), for which a plaintiff must have filed administrative charges within 300 days of its occurrence. As this Court has said before, in reference to the timeliness of employment discrimination claims, "To determine the timeliness of a complaint, the date of challenged employment practice or action must be identified." Portugues-Santa v. B. Fernandez Hermanos, Inc., 614 F.Supp.2d 221, 233 (D.P.R. 2009).

The Court observes that Guillen's second ADU charge, filed on September 25, 2007, does not specify the dates of the adverse actions alleged, but states that Guillen requested "on several occasions that he be promoted to supervisory positions, which has [sic] been denied" on the basis of his age and in retaliation for his earlier ADU charge. (Docket No. 21-4.) Although it is possible that the language in Guillen's ADU charge might be found to constitute an ongoing violation charge, something Guillen, himself, does not argue explicitly in regard to timeliness, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 113 (2002). Because Guillen references no specific dates on which he was denied a promotion, determining timeliness is difficult. While this discussion is primarily academic, given the Court's findings on the merits below, it is worth noting that Guillen's failure to promote claim may also be time-barred.

Pursuant to 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). An employee claiming that his employment was terminated in violation of the ADEA "must shoulder the ultimate `burden of proving that his years were the determinative factor in his discharge, that is, that he would not have been fired but for his age.'" Torrech-Hernandez v. Gen. Elec. Co., 519 F.3d 41, 48 (1st Cir. 2008) (quoting Davila v. Corporacion de Puerto Rico para la Difusion Publica, 498 F.3d 9, 15 (1st Cir. 2007) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991) (additional citation omitted))). "As the Supreme Court recently clarified, plaintiffs must establish that age was the `but-for' cause of the employer's adverse action." Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 446 (1st Cir. 2009) (citing Gross v. FBL Fin. Servs., Inc., ___ U.S. ___, 129 S.Ct. 2343, 2351 (2009) (internal quotations omitted)).

In the absence of direct evidence, as is the situation in this case, an employee may utilize a burden shifting framework to prove discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); see also Velazquez-Fernandez v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 2007) (applying the McDonnell Douglas framework in an ADEA case). The initial burden lies with the plaintiff to establish a prima facie case of discrimination. Davila, 498 F.3d at 15. To satisfy this burden when the claim is based on a failure to promote, the plaintiff must adduce evidence in support of the following four facts: "(1) [he] is a member of a protected class, (2) [he] was qualified for an open position for which [he] applied, (3) [he] was rejected, and (4) someone possessing similar qualifications filled the position instead." Ingram v. Brink's., Inc., 414 F.3d 222, 230 (1st Cir. 2005) (citing Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004). The required prima facie showing is not especially burdensome. See id; Greenberg v. Union Camp Corp., 48 F.3d 22, 26 (1st Cir. 1995); Sanchez v. P.R. Oil Co., 37 F.3d 712, 719 (1st Cir. 1994),Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 n. 4 (1st Cir. 1994).

Once the plaintiff establishes a prima facie case, the burden of production shifts to the defendant-employer "to articulate a legitimate, nondiscriminatory basis for its adverse employment action."Torrech-Hernandez, 519 F.3d at 48. To be clear, this is not a burden of persuasion. Davila, 498 F.3d at 16. "[T]he employer need do no more than articulate a reason which, on its face, would justify a conclusion that the plaintiff was let go for a nondiscriminatory motive." Id.

Once the employer satisfies its burden of production, the presumption attending the prima facie case vanishes and the burden shifts back to the employee who must then show by a preponderance of the evidence that the reason given by the employer for the discharge is merely a pretext and that the real motivation for the adverse job action was age discrimination. Velazquez-Fernandez, 476 F.3d at 11; Gonzalez, 304 F.3d at 69. "In other words, the bottom-line question of discrimination vel non comes front and center. At summary judgment, this question reduces to whether or not the plaintiff has adduced minimally sufficient evidence to permit a reasonable factfinder to conclude that he was fired because of his age." Davila, 498 F.3d at 16 (citations omitted).

JC Penney does not dispute that Guillen was in the protected class or that he was qualified for positions he may have sought; instead, JC Penney argues that Guillen has failed to establish the third and fourth prongs of his discrimination claims because Guillen never established that he was rejected from any open positions to which he applied or that someone possessing similar qualifications filled the positions instead.

Although demotions and failures to promote may be considered adverse actions in employment discrimination cases (see DeNovellis v. Shalala, 135 F.3d 58, 75 (1st Cir. 1998) (citing Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994), "[d]etermining whether an action is materially adverse necessarily requires a case-by-case inquiry." Blackie v. State of Me., 75 F.3d 716, 725 (1st Cir. 1996) (citing Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994)). The First Circuit Court of Appeals has noted that "[w]ork places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action" and that, "[t]ypically, the employer must either (1) take something of consequence from the employee, say, by discharging or demoting [him], reducing [his] salary, or divesting [him] of significant responsibilities . . . or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering [him] for promotion after a particular period of service."Blackie, 75 F.3d 725-26 (internal citations omitted).

Guillen has adduced no verifiable evidence to support his claim that JC Penney failed to promote him or that the promotions he sought were filled by someone with comparable skills. Although Guillen never makes clear which specific position he sought and was denied, he argues that he "was promised that the first supervisory position that emerged was going to be given to him" and that this promise was broken (Docket No. 33 at 10). Guillen also argues that he applied generally to all supervisory positions that emerged

after October 2004 in the Plaza store by informing various managers of his interest in obtaining such a position, and that "Guillen saw that the supervisory positions that were supposed to be given to him were being given to younger employees." Id.

Neither the record, nor the case law, support Guillen's failure-to-promote claims. Although Guillen provides no date for the alleged promise made to him that the first available supervisory position would be his, the record does show that JC Penney offered Guillen various supervisory positions following his October 2004 reclassification. First, at the time of the reclassification itself, JC Penney offered Guillen a department supervisor position at either the Hatillo or Caguas store. The record also shows that JC Penney promoted Guillen from Pricing Associate to IMA on July 30, 2006, and that after Guillen became an IMA, he received pay raises, both in 2006 and 2007. Further, in late 2006, or early 2007, Guillen applied for a posted supervisory position in the JC Penney's Plaza Carolina location, but withdrew himself from consideration when he found out that the position entailed a 32-hour work week, and was not a Buyer's Assistant position. Guillen was again promoted in March 2008 to Catalog Supervisor. The record contains substantial evidence that JC Penney promoted Guillen and gave him pay raises throughout his career at JC Penney; there is no evidence on the record showing that JC Penney ever denied him a particular promotion he sought.

Significantly, Guillen cites no case law which would support the establishment of a prima facie failure-to-promote claim based on a generalized request for promotions. To the contrary, a plaintiff claiming a failure-to-promote must show that he "applied for a specific position or positions . . . rather than merely asserting that on several occasions she or he generally requested promotion." Velez 467 F.3d at 807 (citing, inter alia, Brown v. Coach Stores, Inc., 163 F.3d 706, 711-12 (2d Cir. 1998)). As the First Circuit Court of Appeals put it, "[t]his specificity requirement is sensible and fair. An open-ended request for employment should not put a burden on an employer to review an applicant's generally stated credentials any time a position becomes available . . ." Id. at 808. The Court of Appeals went on to explain that, "If we were to find such a general request the legal equivalent of an application, we would require employers to answer for their failure to hire individuals who did nothing more than express a desire to be employed." Id.

Finally, Guillen alleges that JC Penney gave supervisory positions that became available after October, 2004, to employees younger and less experienced than he. Guillen names two employees specifically whom he claims received supervisory positions despite being less qualified and younger than he; he does not produce any evidence, however, regarding the promotions or positions they were allegedly given in lieu of him, the dates of those promotions or hires, or anything else that would give any substantive proof to Guillen's claims. Guillen therefore fails to establish the fourth prong necessary to establish a prima facie failure-to-promote claim.

For all these reasons, the Court finds that Guillen failed to make a prima facie showing of age discrimination. Even had Guillen made such a showing, however, he also fails to refute the grounds given by JC Penney for its contested hiring decisions by showing those grounds to be pretext by a preponderance of the evidence, and he fails to adduce any evidence whatsoever to show that "but for" his age he would have been promoted to a particular supervisory position. The record shows that JC Penney eliminated the BLA position on October 24, 2004 due to a restructuring; all employees holding the BLA position were affected, not just Guillen. JC Penney counters Guillen's vague assertions that he was denied promotions on the basis of his age with a nondiscriminatory reason that is amply supported in the record; the jobs offered to the reclassified employees were offered on the basis of seniority.

Furthermore, the record shows that the two employees who were reclassified from the BLA position and then given the IMA position in the Plaza location that Guillen presumably preferred were both his age or older. JC Penney also points to evidence showing that it was Guillen himself who withdrew from the application process for at least one supervisory position available.

Although it is possible to show pretext "by showing `weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons,'" there is not sufficient evidence in this case for a reasonable factfinder to "`infer that the employer did not act for the asserted non-discriminatory reasons.'" See Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000) (quoting Hodgens v. General Dynamics Corp., 144 F.3d 151, 168 (1st Cir. 1998)). JC Penney has countered Guillen's claims that JC Penney failed to promote him on account of his age with nondiscriminatory reasons for each recognizable failure to promote when an open supervisory position became available that draws clear support from the record in the present case. Guillen, on the other hand, has provided no evidence which could allow a reasonable factfinder to conclude that JC Penney's reasons for failing to promote him (and the Court notes that JC Penney eventually did promote Guillen) is pretext for age discrimination. Thus, Guillen has failed to establish genuine issues of material fact sufficient to send his age discrimination claim to a jury. The remaining age discrimination claims for failure-to-promote are accordingly DISMISSED WITH PREJUDICE.

Both the ADEA and Title VII prohibit an employer from discriminating against an individual because he or she "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation" under the ADEA or Title VII, respectively. 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d). To establish a prima facie case of retaliation under either statute, a plaintiff must show that he or she: (1) engaged in protected conduct; (2) suffered an adverse employment action; and (3) that the adverse employment action was causally connected to the protected conduct. Noviello, 398 F.3d at 88 (citing Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir. 2003); Ramirez Rodriguez v. Boehringer Ingelheim Pharmaceuticals, Inc., 425 F.3d 67, 84 (1st Cir. 2005) (citing Mesnick, 950 F.2d at 827. Once a plaintiff satisfies the elements of the prima facie case of retaliation, a burden of production falls on the employer to put forth a legitimate, nondiscriminatory reason for the adverse employment action.Ramirez-Rodriguez, 425 F.3d at 84;Valentin-Almeyda, 447 F.3d at 95. The ultimate burden of persuasion, however, remains with the plaintiff, and he or she must show that the employer's nondiscriminatory reason is a pretext for retaliatory discrimination. Id.

Guillen satisfies the first prong; he filed two charges of age discrimination with the ADU, both constituting protected activity. As the Court has already discussed, however, Guillen has failed to show that he suffered an adverse action; the record is clear that Guillen himself turned down JC Penney's offer for a supervisory position at the time of his October 24, 2004, reclassification because the position was located too far away, that Guillen removed himself from consideration for other available supervisory positions, and that Guillen in fact was given a promotion to a supervisory position and received several pay raises since his engagement in protected activities in October, 2005, and September, 2007.

Even had Guillen shown himself to be the victim of an adverse action, there is absolutely nothing in the record to link the alleged failures to promote to any sort of discriminatory animus or to Guillen's ADU charges. Guillen's only argument is superficial, and is not grounded either by the record he produced or by any case law (Guillen cited no legal authority whatsoever to support his retaliation argument); he argues that "retaliation is the only justification for having promoted Zolymar Torres and Emilio Cuevas, instead of Guillen, because Guillen was the perfect employee for the positions." (Docket No. 33 at 16.) Again, the Court notes with incredulity that Guillen fails to adduce evidence showing the Court what positions these employees filled that Guillen was "perfect for," when they were given those positions, and what qualifications they lacked that Guillen possessed, or how their promotions would relate in any way at all to Guillen's engagement in protected activities. Guillen merely says, without drawing on anything from the record, that Emilio Cuevas "did not even know how to use a cash register" and that "Guillen was the logical employee to fit for the position of supervisor that were given to these employees." Id. at 17-18.

The Court need not exert itself responding to a claim that a plaintiff clearly put little time into researching or supporting. Accordingly, the Court need go no further here, because Guillen has produced no evidence and raised no legal support at all for his retaliation claim. That retaliation claim is, without further delay, DISMISSED WITH PREJUDICE.

Guillen alleges claims pursuant to Puerto Rico Law 100 and Law 115. (Docket No. 1 at ¶ 5.) Because no federal claims remain to ground supplemental jurisdiction over the Commonwealth claims, Guillen's claims pursuant to Law 100 and Law 115 are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3).

For the reasons expressed above, the Court GRANTS JC Penney's motion for summary judgment. Guillen's federal claims are all DISMISSED WITH PREJUDICE, and his supplemental state claims are DISMISSED WITHOUT PREJUDICE.

Judgment shall be entered accordingly.