990 F.3d 37
1st Cir.2021Background
- González worked at Abbott since 1984 and rose to Level 18 National Sales Manager; a 2010 reorganization moved her to a Level 17 Institutional Marketing Manager position supervised by Kim Pérez (transfer not contested).
- Performance history: first negative rating in 2011 ("partially achieved"); improved in 2012 overall but still negative in some categories; Abbott reassigned her to a Level 15 Product Manager in March 2013 (González characterizes this as an age-based demotion; she was 53).
- After the March 2013 reassignment González reported to the company doctor and to the Puerto Rico State Insurance Fund (SIF), took medical leave, and received an Abbott letter threatening termination if she did not return by April 8, 2013.
- In late 2013 González filed an age-discrimination administrative claim, applied for a Senior Product Manager (Level 16) role but refused to participate in a required mock presentation and was not selected; she then received a negative end-of-year 2013 evaluation, which Abbott asserts made her ineligible for 2014 promotions.
- Jury trial: plaintiff won liability and large damages (back pay and emotional distress); district court reduced damages; on appeal First Circuit finds insufficient evidence for ADEA and related Law 100 / Law 115 discrimination/retaliation claims except for the Law 115 claim based on the April 2013 termination threat (remands for a new trial on damages for that claim).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Age-discrimination claim (ADEA & Law 100) based on March 2013 reassignment/demotion | González: March 2013 move was a demotion motivated by age; younger coworkers were not demoted (comparators) | Abbott: reassignment reflected changed duties; comparators were not similarly situated; no evidence of age animus | Reversed for plaintiff: JMOL for Abbott; comparator evidence inadequate and no other probative evidence of age-based motive |
| Retaliation under Law 115 for reporting to SIF (April 2013 termination threat) | González: Abbott threatened termination in response to her SIF report (protected activity) | Abbott: letter was lawful/authorized by PR law and not an adverse action; disputes preservation | Affirmed for plaintiff: appellate court declines to overturn jury verdict; Abbott waived/failed to adequately press challenge on appeal; remand for damages trial |
| Retaliation for non-promotion to Senior Product Manager (Dec 2013) | González: selection process was stacked against her after she complained about age discrimination | Abbott: she refused to complete a job-related mock presentation and thus forfeited eligibility; external recruiting began before protected activity | Reversed for defendant: plaintiff voluntarily withdrew from process; no viable failure-to-apply / futility evidence |
| Retaliation for 2013 end-of-year evaluation and 2014 non-promotions | González: timeline and other actions show retaliation after her complaint | Abbott: objective deterioration in performance (missed deadlines), legitimate promotion practices (no promotion after "partially achieved") | Reversed for defendant: undisputed performance decline explains evaluation and non-promotions; timing and other evidence do not support reasonable inference of retaliatory motive |
Key Cases Cited
- Muñoz v. Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R., 671 F.3d 49 (1st Cir. 2012) (standard of review for JMOL/JNOV).
- Vélez v. Thermo King de P.R., Inc., 585 F.3d 441 (1st Cir. 2009) (similarly situated comparator requirement in disparate-treatment claims).
- García v. Bristol-Myers Squibb Co., 535 F.3d 23 (1st Cir. 2008) (comparators need not be identical but must be similar in material respects).
- Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17 (1st Cir. 1998) (burden-shifting under Law 100 and need for proof of unjust action).
- Brandt v. Fitzpatrick, 957 F.3d 67 (1st Cir. 2020) (courts should not permit verdicts to stand based on conjecture or unsupported speculation).
- Velez v. Janssen Ortho, LLC, 467 F.3d 802 (1st Cir. 2006) (plaintiff must show she applied for and was qualified for the position in failure-to-promote claims).
- Zabala-De Jesus v. Sanofi-Aventis P.R., Inc., 959 F.3d 423 (1st Cir. 2020) (no discrimination where plaintiff did not apply for position).
- Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325 (1st Cir. 2005) (timing alone supports inference of retaliation only in appropriate circumstances).
- Mesnick v. Gen. Elec. Co., 950 F.2d 816 (1st Cir. 1991) (courts must consider intervening facts that undercut temporal inferences of retaliation).
- Osorio v. One World Techs., Inc., 659 F.3d 81 (1st Cir. 2011) (Rule 50(a) motion requirements to preserve JMOL arguments).
- United States v. Zannino, 895 F.2d 1 (1st Cir. 1990) (argument waiver and insufficiency of undeveloped appellate contentions).